<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 26, 1997
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PROFFITT'S, INC.
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(Exact Name of Registrant as Specified in Charter)
Tennessee 001-13113 82-0331040
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
3455 Highway 80 West, Jackson, Mississippi 39209
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(Addresses of Principal Executive Offices, including Zip Code)
(601) 968-4400
--------------------------
(Registrant's Telephone Number, including Area Code)
<PAGE> 2
ITEM 5. OTHER EVENTS.
On June 26, 1997, Proffitt's, Inc. ("Proffitt's") amended and restated
its existing credit agreement with certain financial institutions. Among other
things, the amendment and restatement of the credit agreement (the "Amended
Credit Agreement") (a) increased the revolving credit facility from $275
million to $400 million, (b) extended the maturity from October 11, 1999 to
June 26, 2002, (c) made provision for, upon any senior indebtedness of
Proffitt's being rated investment grade, the elimination of the inventory
borrowing base limitation on borrowings under the credit facility, (d) reduced
the financial performance benchmarks at which more favorable pricing options
are made available to Proffitt's, and (e) lessened in varying degrees the scope
of the affirmative and negative covenants applicable to Proffitt's and its
subsidiaries. Proffitt's may use the proceeds of borrowings under the revolving
credit facility to refinance certain existing indebtedness, to finance capital
expenditures, for general corporate purposes and to finance certain
acquisitions.
The Company entered into the Amended Credit Agreement as part of its
planned improvements to its capital structure to position the Company for future
growth. The Company regularly evaluates possible acquisition opportunities, as
well as store performance, and closes or sells stores that do not meet
management objectives.
The foregoing is qualified in its entirety by reference to the Second
Amended and Restated Credit Facilities and Reimbursement Agreement and the LC
Account Agreement, copies of which are attached as exhibits hereto and which are
hereby incorporated by reference herein.
The Company's press release discribing the Amendment Credit Agreement
is attached as Exhibit 99.1 hereto.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION, AND EXHIBITS.
C. Exhibits
10.1 Second Amended and Restated Credit Facilities and
Reimbursement Agreement, dated June 26, 1997, by and
among Proffitt's, Inc., as Borrower, the Lenders from
time to time party thereto, and NationsBank of Texas,
National Association, as Agent.
10.2 LC Account Agreement, dated June 26, 1997, by and
between Proffitt's, Inc. and NationsBank of Texas,
National Association, as Agent.
99.1 Proffitt's, Inc. Press Release dated June 26, 1997.
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<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PROFFITT'S, INC.
(REGISTRANT)
/s/ Douglas E. Coltharp
--------------------------------------------
Douglas E. Coltharp
Executive Vice President and
Chief Financial Officer
Date: July 3, 1997
-3-
<PAGE> 4
INDEX TO EXHIBITS
Exhibit
10.1 Second Amended and Restated Credit Facilities and
Reimbursement Agreement, dated June 26, 1997, by and among
Proffitt's, Inc., as Borrower, the Lenders from time to time
party thereto, and NationsBank of Texas, National Association,
as Agent.
10.2 LC Account Agreement, dated June 26, 1997, by and between
Proffitt's, Inc. and NationsBank of Texas, National
Association, as Agent.
99.1 Proffitt's, Inc. Press Release dated June 26, 1997.
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<PAGE> 1
Exhibit 10.1
Second Amended and Restated Credit Facilities and Reimbursement Agreement, dated
June 26, 1997, by and among Proffitt's, Inc., as Borrower, the Lenders from time
to time party thereto, and NationsBank of Texas, National Association, as Agent.
<PAGE> 2
EXHIBIT 10.1
SECOND AMENDED AND RESTATED
CREDIT FACILITIES
AND
REIMBURSEMENT AGREEMENT
BY AND AMONG
PROFFITT'S, INC.,
AS BORROWER,
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
AS AGENT
JUNE 26, 1997
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I Definitions and Terms
Page
<S> <C> <C>
1.01 Definitions ............................................................................ 1
1.02 Accounting Terms ....................................................................... 24
1.03 Terms Consistent ....................................................................... 24
ARTICLE II
The Loans
2.01 Revolving Credit Loans ................................................................. 25
2.02 Swing Line ............................................................................. 27
2.03 Payment of Interest .................................................................... 28
2.04 Payment of Principal ................................................................... 29
2.05 Payments; Non-Conforming Payments ...................................................... 29
2.06 Borrower's Account ..................................................................... 30
2.07 Notes .................................................................................. 30
2.08 Pro Rata Payments ...................................................................... 30
2.09 Reductions ............................................................................. 30
2.10 Conversions and Elections of Subsequent Interest Periods ............................... 31
2.11 Unused Fee ............................................................................. 32
2.12 Deficiency Loans ....................................................................... 32
2.13 Use of Proceeds ........................................................................ 32
2.14 Additional Fees ........................................................................ 33
2.15 Borrowing Base; Investment Rating ...................................................... 33
ARTICLE III Letters of Credit
3.01 Letters of Credit ...................................................................... 34
3.02 Reimbursement .......................................................................... 34
3.03 Letter of Credit Fee ................................................................... 37
3.04 Administrative Fees .................................................................... 38
ARTICLE IV Change in Circumstances
4.01 Increased Cost and Reduced Return ...................................................... 38
4.02 Limitation on Types of Loans ........................................................... 39
4.03 Illegality ............................................................................. 40
4.04 Treatment of Affected Loans ............................................................ 40
4.05 Compensation ........................................................................... 41
4.06 Taxes .................................................................................. 41
ARTICLE V Conditions to Making Loans and Issuing Letters of Credit
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
5.01 Conditions of Initial Loan and Issuance of Letters of Credit ........................... 44
5.02 Conditions of Loans .................................................................... 46
ARTICLE VI Representations and Warranties
6.01 Representations and Warranties ......................................................... 48
ARTICLE VII Affirmative Covenants
7.01 Financial Reports, Etc ................................................................. 54
7.02 Maintain Properties .................................................................... 56
7.03 Existence, Qualification, Etc .......................................................... 56
7.04 Taxes .................................................................................. 56
7.05 Insurance .............................................................................. 56
7.06 True Books ............................................................................. 56
7.07 Right of Inspection .................................................................... 56
7.08 Observe All Laws ....................................................................... 57
7.09 Covenants Extending to Subsidiaries .................................................... 57
7.10 Officer's Knowledge of Default ......................................................... 57
7.11 Suits or Other Proceedings ............................................................. 57
7.12 Notice of Discharge of Hazardous Material or Environmental Complaint ................... 57
7.13 Environmental Compliance ............................................................... 57
7.14 Indemnification ........................................................................ 57
7.15 Further Assurances ..................................................................... 58
7.16 Benefit Plans .......................................................................... 58
7.17 Continued Operations ................................................................... 58
7.18 New Subsidiaries ....................................................................... 59
ARTICLE VIII Negative Covenants
8.01 Consolidated Net Worth ................................................................. 61
8.02 Consolidated Funded Senior Indebtedness to Consolidated EBITDA ......................... 61
8.03 Consolidated Fixed Charge Ratio ........................................................ 61
8.04 Capital Expenditures ................................................................... 61
8.05 Consolidated Funded Total Indebtedness to Consolidated EBITDA .......................... 61
8.06 Indebtedness ........................................................................... 61
8.07 Liens .................................................................................. 63
8.08 Transfer of Assets ..................................................................... 64
8.09 Investments; Acquisitions .............................................................. 64
8.10 Merger or Consolidation ................................................................ 65
8.11 Transactions with Affiliates ........................................................... 65
8.12 Benefit Plans .......................................................................... 66
8.13 Fiscal Year ............................................................................ 67
8.14 Dissolution, etc ....................................................................... 67
8.15 Rate Hedging Obligations ............................................................... 67
8.16 Negative Pledge Clauses ................................................................ 67
</TABLE>
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<TABLE>
ARTICLE IX Events of Default and Acceleration
<S> <C> <C>
9.01 Events of Default ...................................................................... 68
9.02 Agent to Act ........................................................................... 71
9.03 Cumulative Rights ...................................................................... 72
9.04 No Waiver .............................................................................. 72
9.05 Allocation of Proceeds ................................................................. 72
ARTICLE X The Agent
10.01 Appointment, Powers, and Immunities .................................................... 74
10.02 Reliance by Agent ...................................................................... 74
10.03 Defaults ............................................................................... 75
10.04 Rights as Lender ....................................................................... 75
10.05 Indemnification ........................................................................ 75
10.06 Non-Reliance on Agent and Other Lenders ................................................ 76
10.07 Resignation of Agent ................................................................... 76
ARTICLE XI Miscellaneous
11.01 Assignments and Participations ......................................................... 77
11.02 Notices ................................................................................ 79
11.03 Confidentiality ........................................................................ 80
11.04 Right of Set-off; Adjustments .......................................................... 80
11.05 Survival ............................................................................... 81
11.06 Expenses ............................................................................... 81
11.07 Amendments and Waivers ................................................................. 82
11.08 Counterparts ........................................................................... 82
11.09 Termination ............................................................................ 82
11.10 Governing Law .......................................................................... 83
11.11 Indemnification ........................................................................ 83
11.12 Headings and References ................................................................ 84
11.13 Severability ........................................................................... 84
11.14 Entire Agreement ....................................................................... 84
11.15 Agreement Controls ..................................................................... 84
11.16 Usury Savings Clause ................................................................... 85
11.17 Status of Debt ......................................................................... 85
11.18 Waiver of Jury Trial ................................................................... 85
EXHIBIT A Revolving Credit Commitments ...................................................... A-1
EXHIBIT B Form of Assignment and Acceptance ................................................. B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative ................ C-1
EXHIBIT D Form of Borrowing Notice--Revolving Credit Loans and Swing Line Loans ............. D-1
EXHIBIT E Form of Guaranty Agreement ........................................................ E-1
</TABLE>
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<TABLE>
<S> <C> <C>
EXHIBIT F Form of Revolving Credit Notes .................................................... F-1
EXHIBIT G Form of Swing Line Note ........................................................... G-1
EXHIBIT H Interest Rate Selection Notice .................................................... H-1
EXHIBIT I Form of Opinion of Counsel to the Borrower and Counsel to
the Guarantors .................................................................. I-1
EXHIBIT J Compliance Certificate ............................................................ J-1
EXHIBIT K Borrowing Base Certificate ........................................................ K-1
Schedule 6.01(d) Subsidiaries and Investments in Other Persons
Schedule 6.01(f) Contingent Liabilities
Schedule 6.01(g) Liens
Schedule 6.01(h) Tax Matters
Schedule 6.01(j) Litigation
Schedule 6.01(m) Patents
Schedule 6.01(o) Consents
Schedule 7.05 Insurance
Schedule 8.06
</TABLE>
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<PAGE> 7
SECOND AMENDED AND RESTATED
CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT FACILITIES AND REIMBURSEMENT
AGREEMENT, dated as of June 26, 1997 (the "Agreement"), is made by and among:
PROFFITT'S, INC., a Tennessee corporation having a principal place of
business in Jackson, Mississippi (the "Borrower"); and
Each lender executing and delivering a signature page hereto and each
other lender which may hereafter execute and deliver an instrument of assignment
with respect to this Agreement pursuant to Section 11.01 hereof (hereinafter
such lenders may be referred to individually as a "Lender" or collectively as
the "Lenders"); and
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States of
America ("NationsBank"), in its capacity as agent for the Lenders (in such
capacity, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower has requested to amend and restate the Credit
Facilities and Reimbursement Agreement dated as of October 11, 1996 among the
Borrower, the Agent and the Lenders party thereto, as amended by Amendment No. 1
to Credit Facilities and Reimbursement Agreement dated as of January 14, 1997
and by Amendment No. 2 to Credit Facilities and Reimbursement Agreement dated as
of April 25, 1997 (as amended, "the 1996 Credit Agreement"), and make available
to the Borrower a revolving credit facility in the maximum aggregate principal
amount at any time outstanding of $400,000,000, which shall include (i) a
standby letter of credit facility of up to $50,000,000 and (ii) a swing line
facility of up to $25,000,000, the proceeds of which are to be used to refinance
certain existing indebtedness, to finance capital expenditures, to finance
Permitted Acquisitions and to provide for the general corporate purposes of the
Borrower; and
WHEREAS, the Lenders are willing to amend and restate the 1996 Credit
Agreement and to make all such facilities available to the Borrower upon the
terms and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree to
amend and restate the 1996 Credit Agreement as follows:
ARTICLE I.
DEFINITIONS AND TERMS
1.01 DEFINITIONS. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
<PAGE> 8
"Acquisition" means the acquisition, including without
limitation by means of merger or consolidation, by the Borrower or any
Subsidiary of (i) a controlling equity interest in another Person
(including the purchase of an option, warrant or convertible or similar
type security to acquire such a controlling interest at the time it
becomes exercisable by the holder thereof), whether by purchase of such
equity interest or upon exercise of an option or warrant for, or
conversion of securities into, such equity interest, (ii) assets of
another Person which constitute all or substantially all of the assets
of such Person or (iii) a Business Unit;
"Adjusted Eurodollar Rate" means, for any Eurodollar Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) determined by the Agent to be
equal to the sum of (i) the quotient obtained by dividing (x) the
Eurodollar Rate for such Eurodollar Loan for such Interest Period by
(y) the difference of 1 minus the Reserve Requirement for such
Eurodollar Loan for such Interest Period plus (ii) the Applicable
Interest Addition;
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with, the Borrower; (ii) which beneficially owns
or holds 10% or more of any class of the outstanding voting stock (or
in the case of a Person which is not a corporation, 10% or more of the
equity interest) of the Borrower; or (iii) 10% or more of any class of
the outstanding voting stock (or in the case of a Person which is not a
corporation, 10% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether
through ownership of voting stock, by contract or otherwise;
"Applicable Commitment Percentage" means, at any time for each
Lender with respect to the Revolving Credit Facility (including its
Participations and its obligations hereunder to NationsBank to acquire
Participations), a fraction (expressed as a percentage), (i) the
numerator of which shall be the amount of such Lender's Revolving
Credit Commitment at such date of determination (which Revolving Credit
Commitment for each Lender as of the Closing Date is set forth in
Exhibit A attached hereto and incorporated herein by reference), and
(ii) the denominator of which shall be the Total Revolving Credit
Commitment at such date of determination; provided, that each
Applicable Commitment Percentage of each Lender shall be increased or
decreased to reflect any assignments to or by such Lender effected in
accordance with Section 11.01 hereof;
"Applicable Interest Addition" means for each Eurodollar Loan
that percent per annum set forth below, which shall be (i) determined
as of each Determination Date based upon the computations set forth in
the compliance certificates furnished to the Agent pursuant to Sections
7.01(a)(ii) or 7.01(b)(ii) hereof as of such Determination Date and for
the period then ended, subject to review and approval of such
computations by the Agent, when such compliance certificates are
furnished to the Agent (the "Compliance Date") and (ii) applicable to
all Eurodollar Loans existing on and after the most recent Compliance
Date, based upon the ratio of (x) Consolidated Funded Total
Indebtedness as
<PAGE> 9
at the applicable Determination Date to (y) Consolidated EBITDA for the
Four-Quarter Period of the Borrower ended at the applicable
Determination Date, as specified below:
<TABLE>
<CAPTION>
Consolidated Funded Total Indebtedness/Interest Addition
Applicable
Consolidated EBITDA Ratio (Eurodollar spread)
-------------------------------------------------------------------------------------------------
<S> <C>
Greater than 3.50 to 1.00 1.375%
Greater than 3.00 to 1.00 and 1.125%
less than or equal to 3.50 to 1.00
Greater than 2.50 to 1.00 and .875%
less than or equal to 3.00 to 1.00
Greater than 2.00 to 1.00 and .750%
less than or equal to 2.50 to 1.00
Greater than 1.50 to 1.00 and .625%
less than or equal to 2.00 to 1.00
Less than or equal to 1.50 to 1.00 .500%
</TABLE>
The initial Applicable Interest Addition to be in effect as of the
Closing Date and at all times thereafter until the first Compliance
Date to occur after the Closing Date shall be 1.00%;
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Applicable Lending Office" of such Lender (or
of an affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and maintained;
"Applicable Unused Fee" means, at any time, that percent per
annum set forth below, which shall be (i) determined as of each
Determination Date based upon the computations set forth in the
compliance certificates furnished to the Agent pursuant to Sections
7.01(a)(ii) or 7.01(b)(ii) hereof as of such Determination Date and for
the period then ended, subject to review and approval of such
computations by the Agent, when such compliance certificates are
furnished to the Agent and (ii) applicable at all times on and after
the most recent Compliance Date until the immediately following
Compliance Date, based upon the ratio of (x) Consolidated Funded Total
Indebtedness as at the applicable Determination Date to (y)
Consolidated EBITDA for the Four-Quarter Period of the Borrower ended
at the applicable Determination Date, as specified below:
<PAGE> 10
<TABLE>
<CAPTION>
Consolidated Funded Total Indebtedness/ Applicable
Consolidated EBITDA Ratio Unused Fee
- -------------------------------------------------------------------------------------------------------
<S> <C>
Greater than 3.50 to 1.00 .30%
Greater than 2.50 to 1.00 and .25%
less than or equal to 3.50 to 1.00
Greater than 1.50 to 1.00 and .20%
less than or equal to 2.50 to 1.00
Less than or equal to 1.50 to 1.00 .15%
</TABLE>
The initial Applicable Unused Fee to be in effect as of the Closing
Date and at all times thereafter until the first Compliance Date to
occur after the Closing Date shall be .25%;
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit
executed by the Borrower from time to time and delivered to NationsBank
to support the issuance of Letters of Credit;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance substantially in the form of Exhibit B attached hereto and
incorporated herein by reference (with blanks appropriately filled in)
delivered to the Agent in connection with an assignment of a Lender's
interest under this Agreement pursuant to Section 11.01;
"Authorized Representative" means any of the Chairman,
Vice Chairmen, President, Executive Vice Presidents or Senior Vice
Presidents of the Borrower and, with respect to financial matters, the
Treasurer or chief financial officer of the Borrower or any other
person expressly designated by the Board of Directors of the Borrower
(or the appropriate committee thereof) as an Authorized Representative
of the Borrower, as set forth from time to time in a certificate
substantially in the form attached hereto as Exhibit C and
incorporated herein by reference;
"Base Rate" means, for any day, the rate per annum equal to
the higher of (a) the Federal Funds Rate for such day plus one-half of
one percent (.5%) and (b) the Prime Rate for such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or Federal Funds Rate;
"Base Rate Loan" means any Loan for which the rate of interest
is determined by reference to the Base Rate;
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
<PAGE> 11
"Borrower's Account" means demand deposit account number
125-281-4250 with the Agent, or any successor account with the Agent,
which may be maintained at one or more offices of the Agent or an agent
of the Agent;
"Borrowing Base" means, at any date of determination, an
amount determined pursuant to the following formula:
Borrowing = (Eligible Inventory - Commercial L/Cs) x 0.60
Base
"Borrowing Base Certificate" has the meaning assigned to such
term in Section 7.01(d) hereof;
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with a Loan under the Revolving Credit
Facility, in substantially the form attached hereto as Exhibit D and
incorporated herein by reference;
"Business Day" means any day which is not a Saturday, Sunday
or a day on which banks in the State of Texas are authorized or
obligated by law, executive order or governmental decree to be closed;
"Business Unit" means (i) one or more retail stores,
warehouses or distribution centers, including the related land,
buildings and trade fixtures of a Person or a division of a Person,
which may, but is not required to, include inventory, receivables,
furniture, fixtures and equipment, and intangible and other assets
related to such retail stores, warehouses or distribution centers or
(ii) all or substantially all of a line or lines of business conducted
by a Person or a division of a Person;
"Capital Expenditures" means for any period the sum of
(without duplication) (i) all expenditures (whether paid in cash or
accrued as liabilities) by the Borrower or any Subsidiary during that
period that are for items that would be classified as "property, plant
or equipment" or comparable items in accordance with Generally Accepted
Accounting Principles on the consolidated balance sheet of the Borrower
and its Subsidiaries, including without limitation all transactional
costs incurred in connection with such expenditures provided the same
have been capitalized excluding, however, the amount of any Capital
Expenditures paid for with proceeds of casualty insurance as shown on
any compliance certificate delivered pursuant to Section 7.01(a) or (b)
hereof, plus (ii) with respect to any Capital Lease entered into by the
Borrower or its Subsidiaries during such period, the present value of
the lease payments due under such Capital Lease over the term of such
Capital Lease applying a discount rate equal to the interest rate
provided in such lease (or in the absence of a stated interest rate,
that rate used in the preparation of the financial statements described
in Section 7.01(a) hereof), plus (iii) all Costs of Acquisition, all of
the foregoing in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis; provided, however, there
shall be excluded from the determination of Capital Expenditures the
Costs of Acquisition incurred in connection with any Permitted
Acquisition;
<PAGE> 12
"Capital Leases" means all leases which have been or should be
capitalized in accordance with Generally Accepted Accounting Principles
as in effect from time to time including Statement No. 13 of the
Financial Accounting Standards Board and any successor thereof;
"Closing Date" means June 26, 1997, which is the date on which
the conditions set forth in Section 5.01 hereof have been satisfied;
"Code" means the Internal Revenue Code of 1986, as amended,
any successor provision or provisions and any regulations promulgated
thereunder;
"Commercial L/Cs" means, at any date of determination, the
aggregated stated amount of outstanding commercial or documentary
letters of credit issued for the benefit of any Person and for the
account of the Borrower or any Subsidiary to the extent that such
letters of credit were issued in connection with the purchase of
inventory by the Borrower or such Subsidiary and such inventory is
determined to be an asset thereof and included as such on its books and
records;
"Common Stock" means the common stock, par value $.10 per
share, of the Borrower;
"Compliance Date" has the meaning assigned to such term in the
definition of "Applicable Interest Addition" in Section 1.01 hereof;
"Consistent Basis" in reference to the application of
Generally Accepted Accounting Principles means the accounting
principles observed in the period referred to are comparable in all
material respects to those applied in the preparation of the audited
financial statements of the Borrower referred to in Section 6.01(f)(i)
hereof;
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any period of computation thereof, the sum of,
without duplication, (i) Consolidated Net Income, plus (ii)
Consolidated Interest Expense, plus (iii) taxes on income, plus (iv)
amortization, plus (v) depreciation, all determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis; provided, however, that extraordinary
and unusual charges incurred by the Borrower directly as a result of
(i) the Acquisition by the Borrower of Parisian, Inc. effective October
11, 1996, the Acquisition by the Borrower of Younkers, Inc. effective
February 3, 1996 and the Acquisition by the Borrower of G.R.
Herberger's, Inc. effective February 1, 1997 and (ii) any Permitted
Acquisition after the Closing Date in an amount up to and including 10%
of the Cost of Acquisition for such Permitted Acquisition shall be
excluded from the computation of Consolidated EBITDA; provided further,
however, that effective as of the effective date of any Acquisition,
Consolidated EBITDA shall be computed giving pro forma effect to such
Acquisition for each Four-Quarter Period then and thereafter occurring
until such Acquisition has been effective for a complete Four-Quarter
Period;
<PAGE> 13
"Consolidated Financing Charges" means those charges owed and
allocated to third parties with respect to accounts receivable
securitizations transacted in the ordinary course of business;
"Consolidated Fixed Charge Ratio" means, with respect to the
Borrower and its Subsidiaries for the Four-Quarter Period ending on the
date of computation thereof, the ratio of (i) Consolidated EBITDA plus
Consolidated Financing Charges plus, to the extent deducted in arriving
at Consolidated EBITDA, lease, rental and all other payments made in
respect of or in connection with operating leases, to (ii) Consolidated
Fixed Charges during such Four-Quarter Period;
"Consolidated Fixed Charges" means, with respect to Borrower
and its Subsidiaries, for the periods indicated, the sum of, without
duplication, (i) Consolidated Interest Expense, plus (ii) to the extent
deducted in arriving at Consolidated EBITDA, lease, rental and all
other payments made in respect of or in connection with operating
leases, plus (iii) current maturities of Consolidated Funded Total
Indebtedness, plus (iv) all dividends and other distributions (other
than distributions in the form of any stock (including without
limitation capital stock of the Borrower), security, note or other
instrument) paid during such period (regardless of when declared) on
any shares of capital stock of the Borrower then outstanding, including
without limitation its Common Stock and its Preferred Stock, plus (v)
Consolidated Financing Charges, all determined on a consolidated basis
in accordance with Generally Accepted Accounting Principles applied on
a Consistent Basis; provided further, however, that effective as of the
effective date of any Acquisition, such calculations shall be computed
giving pro forma effect to such Acquisition for each Four-Quarter
Period then and thereafter occurring until such Acquisition has been
effective for a complete Four-Quarter Period;
"Consolidated Funded Senior Indebtedness" means at any time as
of which the amount thereof is to be determined, (i) all Consolidated
Funded Total Indebtedness then outstanding, including without
limitation any Loans, minus (ii) the aggregate principal amount of all
Consolidated Subordinated Debt;
"Consolidated Funded Total Indebtedness" means, at any time as
of which the amount thereof is to be determined, all Indebtedness for
Money Borrowed of the Borrower and its Subsidiaries (including, but not
limited to, all current maturities and borrowings under short term
loans) plus the face amount of all issued and outstanding standby
letters of credit and all obligations (to the extent not duplicative)
arising under such letters of credit, all determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis;
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
amortization of debt discounts, (ii) the amortization of all fees
(including, without limitation, fees payable in respect of a Swap
Agreement) payable in connection with the incurrence of Indebtedness to
the extent included in interest
<PAGE> 14
expense and (iii) the portion of any payments made in
connection with Capital Leases allocable to interest expense, all
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated Net Income" means, for any period of computation
thereof, the net income of the Borrower and its Subsidiaries as
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis; but
excluding as income: (i) net gains on the sale, conversion or other
disposition of capital assets, net gains on the acquisition,
retirement, sale or other disposition of capital stock and other
securities of the Borrower or its Subsidiaries, and net gains on the
collection of proceeds of life insurance policies, which net gains in
the aggregate during any Four-Quarter Period exceed $200,000, (ii) any
write-up of any asset, and (iii) any other net gain or credit of an
extraordinary nature, all determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis;
"Consolidated Net Worth" means at any time as of which the
amount thereof is to be determined, the shareholders' equity of the
Borrower and its Subsidiaries determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis (excluding intercompany items among the Borrower and
its Subsidiaries and any upward adjustment after the Closing Date due
to revaluation of assets);
"Consolidated Subordinated Debt" means at any time as of which
the amount thereof is to be determined, the sum of the following in
respect of the Borrower and its Subsidiaries determined on a
consolidated basis: (i) the Convertible Subordinated Debentures, (ii)
the Junior Subordinated Debentures, (iii) the Parisian Senior
Subordinated Notes and (iv) all other Consolidated Funded Total
Indebtedness which is by its terms subordinate to the Loans as required
by, and in substance acceptable to, the Agent;
"Consolidated Total Assets" means, as at any time of
determination thereof, the net book value of all assets of the Borrower
and its Subsidiaries as determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis;
"Contingent Obligation" of any Person means (i) all contingent
liabilities required (or which, upon the creation or incurring thereof,
would be required) to be included in the consolidated financial
statements (including footnotes) of such Person in accordance with
Generally Accepted Accounting Principles applied on a Consistent Basis,
including Statement No. 5 of the Financial Accounting Standards Board,
and (ii) all reimbursement obligations of such Person with respect to
any letter of credit and all obligations of such Person guaranteeing or
in effect guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including obligations of such Person however incurred:
(a) to purchase such Indebtedness or any
property or assets constituting security therefor;
<PAGE> 15
(b) to advance or supply funds in any manner (x) for
the purchase or payment of such Indebtedness or (y) to
maintain a minimum working capital, net worth or other balance
sheet condition or any income statement condition of the
primary obligor;
(c) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness;
(d) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness of the
ability of the primary obligor to make payment of such
Indebtedness, including without limitation the lease of
property in connection with any tax retention operating lease
or any form of synthetic lease; or
(e) otherwise to assure the owner of the
Indebtedness of the primary obligor against loss in
respect thereof.
With respect to Contingent Obligations, such liabilities shall be
computed at the amount which, in light of all the facts and
circumstances existing at the time, represent the present value of the
amount which can reasonably be expected to become an actual or matured
liability;
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.10 hereof of a Eurodollar Loan from
one Interest Period to the next Interest Period;
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 2.10 or Article IV of one Type of Loan
into another Type of Loan;
"Convertible Subordinated Debentures" means the 4 3/4%
Convertible Subordinated Debentures Due 2003 of the Borrower in the
aggregate principal amount of $86,250,000 issued pursuant to that
certain Indenture dated as of October 26, 1993, between the Borrower
and Union Planters National Bank, as trustee (as amended from time to
time, the "Convertible Subordinated Debentures Indenture");
"Cost of Acquisition" means, as at the date of closing any
Acquisition, the sum of the following: (i) the value of the capital
stock or warrants or options to acquire capital stock of Borrower or
any Subsidiary to be transferred in connection therewith, (ii) any cash
or other property (excluding property described in clause (i)) or the
unpaid principal amount of any debt instrument given as consideration
in such Acquisition, and (iii) any Indebtedness or liabilities assumed
by the Borrower or its Subsidiaries in connection with such
Acquisition. For purposes of determining the Cost of Acquisition for
any transaction, (A) the capital stock of the Borrower shall be valued
(I) at its market value as reported on the Nasdaq National Market
System or any national securities exchange with respect to shares that
are freely tradeable, and (II) with respect to shares that are not
freely tradeable, as determined by the Board of Directors of the
Borrower, (B) the capital
<PAGE> 16
stock of any Subsidiary shall be valued as determined by the Board
of Directors of such Subsidiary, and (C) with respect to any
Acquisition accomplished pursuant to the exercise of options or
warrants or the conversion of securities, the Cost of Acquisition shall
include both the cost of acquiring such option, warrant or convertible
security as well as the cost of exercise or conversion;
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder;
"Determination Date" means the last day of each fiscal
quarterly period of the Borrower;
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America;
"Eligible Assignee" means (i) a Lender; (ii) an affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 11.01, the Borrower,
such approval not to be unreasonably withheld or delayed by the
Borrower or the Agent, as applicable, provided, however, that neither
the Borrower nor an affiliate of the Borrower shall qualify as an
Eligible Assignee;
"Eligible Inventory" means, at any date of determination, the
aggregate book value of all Inventory of the Borrower and its
Subsidiaries which is usable and saleable (excluding from Eligible
Inventory, without limitation, all raw materials and all
work-in-process), less (to the extent otherwise included in Eligible
Inventory) any goods in transit to third parties (other than the agents
or warehouses of the Borrower and its Subsidiaries), goods held on
consignment by any third party, business applications software and less
any reserves required by Generally Accepted Accounting Principles for
obsolete inventory, market value declines, bill and hold (deferred
shipment) sales and goods returned or rejected;
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(i) Government Securities;
(ii) the following debt securities of the
following agencies or instrumentalities of the United States
of America if at all times the full faith and credit of the
United States of America is pledged to the full and timely
payment of all interest and principal thereof:
(a) all direct or fully guaranteed
obligations of the United States Treasury; and
(b) mortgage-backed securities and
participation certificates guaranteed by the
Government National Mortgage Association;
<PAGE> 17
(iii) the following obligations of the following
agencies or instrumentalities of or corporations established
by the United States of America:
(a) participation certificates and debt
obligations of the Federal Home Loan Mortgage
Corporation;
(b) consolidated debt obligations, and
obligations secured by a letter of credit, of the
Federal Home Loan Banks; and
(c) debt obligations and mortgage-
backed securities of the Federal National Mortgage
Association which have not had the interest portion
thereof severed therefrom;
(iv) obligations of any corporation organized
under the laws of any state of the United States of America
or under the laws of any other nation, payable in the United
States of America, expressed to mature not later than 92
days following the date of issuance thereof and rated in an
investment grade rating category by S&P and Moody's;
(v) interest bearing demand or time deposits
issued by any Lender or certificates of deposit maturing
within one year from the date of acquisition issued by a
bank or trust company organized under the laws of the United
States or of any state thereof having capital surplus and
undivided profits aggregating at least $500,000,000 and
being rated A-3 or better by S&P or A or better by Moody's;
(vi) Repurchase Agreements;
(vii) Pre-Refunded Municipal Obligations;
(viii) shares of mutual funds which invest in
obligations described in paragraphs (i) through (iii) above,
the shares of which mutual funds are at all times rated "AAA"
by S&P; and
(ix) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by Moody's.
Obligations listed in paragraphs (i), (ii) and (iii) above which are in
book-entry form must be held in a trust account with the Federal
Reserve Bank or with a clearing corporation or chain of clearing
corporations which has an account with the Federal Reserve Bank;
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource
<PAGE> 18
Conservation and Recovery Act, as amended; the Toxic Substances
Control Act, as amended; the Clean Air Act, as amended; the Clean
Water Act, as amended; together with all regulations promulgated
thereunder, and any other "Superfund" or "Superlien" law;
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974, as amended, and the regulations thereunder, all
as the same shall be in effect at such date;
"Eurodollar Business Day" means a domestic Business Day and
one on which the relevant international financial markets are open for
the transaction of the business contemplated by this Agreement
(including without limitation dealings in U.S. Dollar deposits) in
London, England, New York, New York and Dallas, Texas;
"Eurodollar Rate" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750
(or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period. If for any reason such
rate is not available, the term "Eurodollar Rate" shall mean, for any
Eurodollar Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided, however, if
more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates (rounded
upwards, if necessary, to the nearest 1/100 of 1%);
"Eurodollar Loan" means a Loan that bears interest at rates
based upon the Adjusted Eurodollar Rate;
"Event of Default" means any of the occurrences set forth as
such in Section 9.01 hereof;
"Existing Letter of Credit" means that certain standby letter
of credit number 919266 issued for the account of the Borrower on
December 4, 1996 by NationsBank, N.A. (formerly known as NationsBank,
N.A. (South)) for the benefit of Frederick Atkins, Inc. in the stated
amount of $5,154,157.00;
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
<PAGE> 19
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent;
"Fiscal Year" means the 52-week or 53-week period of the
Borrower ending on the Saturday of each calendar year closest (whether
before or after) to January 31 and "Fiscal Year" followed by a
numerical year means the Fiscal Year which has a Fiscal Year Beginning
occurring during such numerical calendar year;
"Fiscal Year Beginning" means the first day of a Fiscal Year;
"Fiscal Year End" means the last day of a Fiscal Year and
"Fiscal Year End" followed by a numerical year means the last day of
the Fiscal Year with a Fiscal Year Beginning in such calendar year;
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any pension, retirement,
healthcare, death, disability or other employee benefit plan;
"Foreign Subsidiary" means a Subsidiary not organized or
existing under the laws of the United States of America, any state
thereof, the District of Columbia or any territory thereof;
"Four-Quarter Period" means a period of four full consecutive
fiscal quarterly periods, taken together as one accounting period, and
in the event any such fiscal quarterly period occurs prior to the
effective date of any Acquisition, or is the period in which such
effective date occurs (each a "Pre-Acquisition Period"), all financial
statements, data, computations and determinations for such Four-Quarter
Period shall be made on a pro forma basis for each Pre-Acquisition
Period giving effect to such Acquisition for all prior periods;
"GAAP" or "Generally Accepted Accounting Principles" means
those principles of accounting set forth in pronouncements of the
Financial Accounting Standards Board, the American Institute of
Certified Public Accountants or which have other substantial
authoritative support and are applicable in the circumstances as of the
date of a report, as such principles are from time to time supplemented
and amended, subject to compliance at all times with Section 1.02
hereof;
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America;
"Governmental Authority" shall mean any Federal, state,
municipal, national, foreign or other governmental department,
commission, board, bureau, agency, court, arbitration body or
instrumentality or political subdivision thereof or any entity or
officer exercising executive, legislative or judicial, regulatory or
administrative functions of or
<PAGE> 20
pertaining to any government or any court, in each case whether a
state of the United States, the United States or foreign nation,
state, province or other governmental instrumentality;
"Guarantors" means, collectively, (i) each Subsidiary existing
on the Closing Date, other than the Securitization Subsidiaries, and
(ii) any other Person who shall become a Subsidiary, other than a
Securitization Subsidiary, after the Closing Date and shall execute and
deliver to the Agent a Guaranty as provided in Section 7.18 hereof;
"Guaranty" means each Guaranty Agreement of a Guarantor
(whether delivered now or hereafter in accordance with Section 7.18
hereof individually or jointly and severally with other Guarantors) in
favor of the Agent guaranteeing in whole or in part the payment of
Obligations, substantially in the form of Exhibit E attached hereto and
incorporated herein by reference, as the same may be amended, modified
or supplemented;
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law;
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property, all indebtedness secured
by any Lien on the property of such Person whether or not such
indebtedness is assumed, all liability of such Person by way of
endorsements (other than for collection or deposit in the ordinary
course of business), all Contingent Obligations, all Rate Hedging
Obligations and that portion of obligations with respect to Capital
Leases which in accordance with Generally Accepted Accounting
Principles is classified as a liability on a balance sheet; but
excluding all accounts payable and accruals, in each case in the
ordinary course of business and only so long as payment therefor is due
within one year; provided that in no event shall the term Indebtedness
include surplus and retained earnings, minority interest in
Subsidiaries, lease obligations (other than pursuant to Capital Leases
or as described in clause (d) of the definition of "Contingent
Obligation"), reserves for deferred income taxes and investment
credits, other deferred credits and reserves, and deferred compensation
obligations;
"Indebtedness for Money Borrowed" means for any Person all
indebtedness in respect of money borrowed, including without limitation
all Capital Leases and the deferred purchase price of any property or
asset, evidenced by a promissory note, bond or similar written
obligation for the payment of money (including, but not limited to,
conditional sales or similar title retention agreements);
"Interest Period" for each Eurodollar Loan means a period
commencing on the date such Eurodollar Loan is made or Converted and
each subsequent period commencing on the last day of the immediately
preceding Interest Period for such Eurodollar Loan, and ending, at the
Borrower's option, on the date one, two, three or six months thereafter
<PAGE> 21
as notified to the Agent by an Authorized Representative three (3)
Eurodollar Business Days prior to the beginning of such Interest
Period; provided, that,
(i) if the Authorized Representative fails to notify
the Agent of the length of an Interest Period three (3)
Eurodollar Business Days prior to the first day of such
Interest Period, the Loan for which such Interest Period was
to be determined shall be deemed to be a Base Rate Loan;
(ii) if an Interest Period for a Eurodollar Loan
would end on a day which is not a Eurodollar Business Day such
Interest Period shall be extended to the next Eurodollar
Business Day (unless such extension would cause the applicable
Interest Period to end in the succeeding calendar month, in
which case such Interest Period shall end on the next
preceding Eurodollar Business Day);
(iii) any Interest Period which begins on the last
Eurodollar 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 Eurodollar Business Day of a calendar month;
(iv) no Interest Period shall extend past the
Revolving Credit Termination Date;
(v) on any day, with respect to all Revolving Credit
Loans, there shall be not more than ten (10) Interest Periods
in effect;
"Inventory" means and includes any and all goods, merchandise
and other personal property wheresoever located and whether now owned
or hereafter acquired by the Borrower or its Subsidiaries which is or
may at any time be held for sale or lease, or held as raw materials,
work-in-process, or supplies or materials used or consumed in the
Borrower's or its Subsidiaries' businesses;
"Investment Grade Rating" means the assignment of a rating of
BBB- and Baa3 or higher, in each case by the applicable Rating
Agencies, or the equivalent thereof, to each class of rated long-term
senior unsecured Indebtedness for Money Borrowed issued by the
Borrower;
"Junior Subordinated Debentures" means the 7.5% Junior
Subordinated Debentures Due March 31, 2004 of the Borrower issued in
the original aggregate principal amount of $17,500,000;
"LC Account Agreement" means the LC Account Agreement dated as
of the date of the initial issuance of any Letter of Credit hereunder
between the Borrower and the Agent, as amended, modified or
supplemented from time to time;
"Letter of Credit" means any standby letter of credit issued
by NationsBank for the account of the Borrower in favor of a Person
advancing credit or securing an obligation on behalf of the Borrower
and shall include the Existing Letter of Credit and all other letters
of credit issued and outstanding under the 1996 Credit Agreement;
<PAGE> 22
"Letter of Credit Commitment" means with respect to each
Lender, the obligation of such Lender to acquire Participations up to
an aggregate stated amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement;
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by NationsBank for the
account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment;
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and its
Subsidiaries shall be deemed to be the owners of any property which
either of them have acquired or hold subject to a conditional sale
agreement, financing lease, or other arrangement pursuant to which
title to the property has been retained by or vested in some other
Person for security purposes;
"Loan" or "Loans" means any of the Revolving Credit Loans or
Swing Line Loans;
"Loan Documents" means this Agreement, the Notes, the
Guaranties, Applications and Agreements for Letters of Credit, each
Letter of Credit, the LC Account Agreement and all other instruments
and documents heretofore or hereafter executed or delivered to and in
favor of any Lender or the Agent in connection with the Loans or the
Letters of Credit made, issued or created under this Agreement as the
same may be amended, modified or supplemented from time to time;
"Loan Parties" means, collectively, the Borrower and each of
the Guarantors;
"Material Adverse Effect" means a material adverse effect on
(i) the business, business prospects, results of operations or
condition (financial or otherwise) of the Borrower and its Subsidiaries
taken as a whole or (ii) the ability of the Borrower or any Guarantor
to observe and perform the covenants and agreements contained herein or
in any other Loan Document or the ability of any Lender to receive the
benefit of any remedy provided thereto under any Loan Document;
"Material Subsidiary" means any direct or indirect Subsidiary
of the Borrower which (i) has total assets equal to or greater than 5%
of Consolidated Total Assets (calculated as of the most recent fiscal
period with respect to which the Agent shall have received financial
statements required to be delivered pursuant to Sections 7.01(a) or (b)
(or if prior to delivery of any financial statements pursuant to such
Sections, then calculated with respect to the Fiscal Year End financial
statements referenced in Section 6.01(f) hereof) (the "Required
Financial Information")) or (ii) has net income equal to or
<PAGE> 23
greater than 5% of Consolidated Net Income (each calculated for the
most recent period for which the Agent has received the Required
Financial Information); provided, however, that notwithstanding the
foregoing, the term "Material Subsidiaries" shall mean Subsidiaries of
the Borrower that together have assets equal to not less than 95% of
Consolidated Total Assets (calculated as described above) and net
income of not less than 95% of Consolidated Net Income (calculated as
described above); provided further that if more than one combination of
Subsidiaries satisfies such threshold, then those Subsidiaries so
determined to be "Material Subsidiaries" shall be specified by the
Borrower;
"Moody's" means Moody's Investors Services, Inc.;
"Multi-employer Plan" means an employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is also a multi-employer plan as defined in Section
4001(a)(3) of ERISA;
"Net Proceeds" from a disposition of assets (other than assets
sold in the ordinary course of business and accounts receivable sold in
connection with an accounts receivable securitization transacted in the
ordinary course of business by a Securitization Subsidiary) or issuance
of equity means cash payments received therefrom as and when received,
net of (i) all reasonable legal, accounting, banking, underwriting,
title and recording expenses, commissions, discounts and other fees and
expenses incurred in connection therewith, (ii) all taxes required to
be paid or accrued as a consequence of such disposition or issuance and
(iii) all amounts necessary to repay Indebtedness for Borrowed Money
the repayment of which is secured by such disposed assets;
"NCMI" means NationsBanc Capital Markets, Inc.;
"Notes" means, collectively, the Revolving Credit Notes and
the Swing Line Note;
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations, (iii) all liabilities of Borrower to any Lender which
arise under a Swap Agreement, and (iv) the payment and performance of
all other obligations, liabilities, fees and Indebtedness of the
Borrower to the Lenders or the Agent hereunder, under any one or more
of the other Loan Documents or with respect to the Loans;
"Outstandings" means, at any time of determination, the sum of
the Revolving Credit Outstandings, Outstanding Letters of Credit and
Swing Line Outstandings;
"Outstanding Letters of Credit" means all undrawn amounts of
Letters of Credit plus all Reimbursement Obligations then due and
payable;
"Parisian Indenture" means that certain Amended and Restated
Indenture dated as of October 11, 1996 among the Borrower, Parisian,
Inc. and AmSouth Bank of Alabama (formerly known as AmSouth Bank,
N.A.), trustee, as amended from time to time thereafter;
<PAGE> 24
"Parisian Senior Subordinated Notes" means the 9.875% Senior
Subordinated Notes Due 2003 of Parisian, Inc. in the original aggregate
principal amount of $125,000,000 issued pursuant to the Parisian
Indenture;
"Participation" means, with respect to any Lender (other than
NationsBank), the extension of credit represented by the participation
of such Lender hereunder in the liability of NationsBank in respect of
a Swing Line Loan made or Letter of Credit issued by NationsBank in
accordance with the terms hereof;
"Permitted Acquisition" means an Acquisition beyond the normal
course of business effected with the consent and approval of the board
of directors or other applicable governing body of the Person being
acquired, and with the duly obtained approval of such shareholders or
other holders of equity interest as such Person may be required to
obtain, so long as (i) immediately prior to and immediately after the
consummation of such Acquisition, no Default or Event of Default has
occurred and is continuing, (ii) substantially all of the sales and
operating profits generated by such Person (or assets) so acquired or
invested are derived from the same or related line or lines of business
as then conducted by the Borrower and its Subsidiaries and (iii) if the
Cost of Acquisition therefor equals or exceeds $25,000,000, pro forma
historical financial statements as of the end of the most recently
completed Four-Quarter Period giving effect to such Acquisition are
delivered to the Agent not less than five (5) Business Days prior to
the consummation of such Acquisition, together with a certificate of an
Authorized Representative demonstrating compliance with the financial
covenants set forth in Article VIII hereof after giving effect to such
Acquisition;
"Person" means an individual, partnership, limited
partnership, corporation, limited liability company, limited liability
partnership, trust, unincorporated organization, association, joint
venture or a government or agency or political subdivision thereof;
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants;
"Prime Rate" means the per annum rate of interest established
from time to time by NationsBank as its prime rate, which rate may not
be the lowest rate of interest charged by NationsBank to its customers;
<PAGE> 25
"Principal Office" means the office of the Agent at
NationsBank of Texas, National Association, presently located at
NationsBank Plaza, 901 Main Street, 67th Floor, Dallas, Texas 75202
Attention: Ms. Renita Cummings, Agency Services, or such other office
and address as the Agent may from time to time designate;
"Rate Hedging Obligations" means any and all obligations of
the Borrower or any Subsidiary, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (a) any and all agreements, devices or
arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (b) any
and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing;
"Rating Agencies" means (i) S&P and (ii) Moody's or (iii) if
either S&P or Moody's (but not both) shall not make a rating of any
class of long-term senior unsecured Indebtedness for Money Borrowed
issued by the Borrower, a nationally recognized securities rating
agency selected by the Borrower, which shall be substituted for either
S&P or Moody's, as the case may be; provided that at all times, either
S&P or Moody's shall be one of the Rating Agencies;
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time;
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse NationsBank for amounts theretofore paid by NationsBank
pursuant to a drawing under such Letter of Credit;
"Repurchase Agreement" means a repurchase agreement entered
into with (i) any financial institution whose debt obligations or
commercial paper are rated "A" or "A2" by either of S&P or Moody's or
"A-1" by S&P or "P-1" by Moody's, or (ii) any Lender;
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating more than 50% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "Credit Exposure"
of each Lender shall be equal at all times (i) other than following the
occurrence and during the continuance of an Event of Default, to its
Revolving Credit Commitment, and (ii) following the occurrence and
during the continuance of an Event of Default, to the aggregate
principal amount of Revolving Credit Loans owing to such Lender plus
the amount of such Lender's Applicable Commitment Percentage of Swing
Line Outstandings and Outstanding Letters of Credit; provided, if any
Lender shall have failed to pay to NationsBank such Lender's Applicable
Commitment Percentage of any Swing Line Loan or drawing under any
Letter of Credit resulting in an
<PAGE> 26
outstanding Reimbursement Obligation, such Lender's Credit Exposure
attributable to such Swing Line Outstandings or Outstanding Letters of
Credit or both shall be deemed to be held by NationsBank for purposes
of this definition;
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the Adjusted
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Loans. The Adjusted
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement;
"Revolving Credit Commitment" means with respect to each
Lender, the obligation of such Lender to make Revolving Credit Loans to
the Borrower up to an aggregate principal amount at any one time
outstanding equal to the amount set forth opposite such Lender's name
on Exhibit A hereto as the same may be increased or decreased from time
to time pursuant to this Agreement;
"Revolving Credit Facility" means the facility described in
Section 2.01 hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount equal to (i) the lesser of the
Borrowing Base or the Total Revolving Credit Commitment, minus (ii) the
aggregate principal amount of Swing Line Outstandings and Outstanding
Letters of Credit;
"Revolving Credit Loan" means a Loan made pursuant to the
Revolving Credit Facility (but specifically excludes all Swing Line
Loans);
"Revolving Credit Notes" means, collectively, the promissory
notes of the Borrower evidencing Revolving Credit Loans executed and
delivered to the Lenders as provided in Section 2.07(a) hereof
substantially in the form attached hereto as Exhibit F and incorporated
herein by reference, with appropriate insertions as to amounts, dates
and names of Lenders, as the same shall be amended, modified or
supplemented and in effect from time to time;
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Credit
Loans then outstanding;
"Revolving Credit Termination Date" means (i) June 26, 2002 or
(ii) such earlier date of termination of Lenders' obligations pursuant
to Section 9.01 upon the occurrence of an Event of Default, or (iii)
such date as the Borrower may voluntarily and permanently terminate the
Revolving Credit Facility by payment in full of all Obligations
(including the
<PAGE> 27
discharge of all Obligations of NationsBank and the Lenders with
respect to Letters of Credit and Participations);
"S&P" means Standard & Poor's Rating Group, a division of
McGraw-Hill Companies, Inc.;
"Securitization Subsidiary" means Younkers Credit Corporation
and Proffitt's Credit Corporation and any other present or future
Subsidiary (including any wholly-owned credit card bank) of the
Borrower that is, directly or indirectly, wholly owned by the Borrower
(other than director qualifying shares) and organized for the purpose
of and is only engaged in (i) purchasing, financing, and collecting
accounts receivable obligations of customers of the Borrower or its
Subsidiaries, (ii) issuing credit cards and financing accounts
receivable obligations of customers of the Borrower and its
Subsidiaries, (iii) the sale or financing of such accounts receivable
or interest therein and (iv) other activities incident thereto;
"Senior Indenture" means that certain Indenture dated as of
May 21, 1997 among the Borrower and The First National Bank of Chicago,
as trustee, as amended from time to time thereafter;
"Senior Notes" means the 8.125% Senior Notes due 2004 of the
Borrower in the aggregate principal amount of $125,000,000 issued
pursuant to the Senior Indenture;
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA and in respect of which the Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is not a Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including, without limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding voting stock or more than 50% of all
equity interests is owned directly or indirectly by the Borrower and/or
by one or more of the Borrower's Subsidiaries at or after the Closing
Date; notwithstanding the foregoing, the reference to "Subsidiary" or
"Subsidiaries" in Sections 6.01(g), (k), (l), (m), (o), or (r), Section
7.01(e), Section 7.09 (as applicable to Sections 7.02 and 7.05) and
Sections 7.12, 7.13, 7.14, 7.18, 8.06, 8.07,
<PAGE> 28
8.08, 8.09 (other than 8.09 (viii)), 8.10, 8.11, 8.14 and 8.16 does not
include any Securitization Subsidiary;
"Swap Agreement" means one or more agreements between the
Borrower and another Person, on terms mutually acceptable to the
Borrower and such Person, which agreements create Rate Hedging
Obligations;
"Swing Line" means the revolving line of credit established by
the Swing Line Lender in favor of the Borrower pursuant to Section
2.02;
"Swing Line Lender" means, as of the Closing Date,
NationsBank, and thereafter any replacement or successor thereto which
is then a Lender and shall agree with the Borrower to succeed to and
become vested with all the rights, powers, discretions, privileges and
duties of the Swing Line Lender, including without limitation as set
forth in Section 2.02 hereof.
"Swing Line Loans" means Loans made by the Swing Line Lender
to the Borrower pursuant to Section 2.02;
"Swing Line Note" means the promissory note of the Borrower
evidencing Swing Line Loans executed and delivered to the Swing Line
Lender substantially in the form attached hereto as Exhibit G and
incorporated herein by reference, as the same shall be amended,
modified or supplemented and in effect from time to time;
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding;
"Swing Line Termination Date" has the meaning assigned to such
term in Section 2.02(g) hereof;
"Total Letter of Credit Commitment" means an amount equal to
$50,000,000;
"Total Revolving Credit Commitment" means an amount equal to
$400,000,000, as reduced from time to time in accordance with Section
2.09; the Total Letter of Credit Commitment and the Total Swing Line
Commitment are included within, and are not in addition to, the Total
Revolving Credit Commitment;
"Total Swing Line Commitment" means an amount equal to
$25,000,000; and
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
Eurodollar Loan).
1.02 ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall have the meanings assigned to such terms and shall be interpreted
in accordance with Generally Accepted Accounting Principles as in effect on the
date of the audited financial statements of the Borrower referred to in Section
6.01(f)(i) hereof and applied on a Consistent Basis.
<PAGE> 29
1.03 TERMS CONSISTENT. All of the terms defined in this Agreement shall
have such defined meanings when used in any of the Loan Documents unless the
context shall require otherwise. All references to the Borrower, the Agent and
any Lender shall be deemed to include any successor or permitted assignee of any
thereof. All plural references and definitions shall have a corresponding
meaning in the singular, and all singular references and definitions shall have
a corresponding meaning in the plural.
<PAGE> 30
ARTICLE II.
THE LOANS
2.01 REVOLVING CREDIT LOANS.
(a) COMMITMENT. Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make Revolving Credit Loans to the Borrower,
from time to time on a pro rata basis as to the total borrowing requested by the
Borrower on any day determined by its Applicable Commitment Percentage of the
Total Revolving Credit Commitment up to but not exceeding the Revolving Credit
Commitment of such Lender; provided, however, that the Lenders will not be
required and shall have no obligation to make any Revolving Credit Loans (i) so
long as a Default or an Event of Default has occurred and is continuing or (ii)
if the maturity of the Revolving Credit Notes has been accelerated as a result
of an Event of Default. Within such limits, the Borrower may borrow, repay and
reborrow hereunder, on a Business Day in the case of a Base Rate Loan and on a
Eurodollar Business Day in the case of a Eurodollar Loan, from the Closing Date
until, but (as to borrowings and reborrowings) not including, the Revolving
Credit Termination Date;
(b) AMOUNTS. The aggregate unpaid principal amount of the Outstandings
shall not exceed at any time an amount equal to the lesser of the Borrowing Base
or the Total Revolving Credit Commitment. Each Revolving Credit Loan made,
Converted or Continued, unless made in accordance with Sections 2.01(c)(iv),
2.02(e) or 3.02(c) hereof, shall be in a principal amount of at least $5,000,000
(or the remaining Total Revolving Credit Commitment, if less), and, if greater
than $5,000,000, an integral multiple of $1,000,000.
(c) LOANS AND RATE SELECTION.
(i) An Authorized Representative shall give the Agent (1) at least
three (3) Eurodollar Business Days' irrevocable telephonic notice
of each Eurodollar Loan (whether representing an additional borrowing
hereunder or the Conversion of borrowing hereunder from Base Rate Loans
to Eurodollar Loans or the Continuation of borrowing hereunder of
Eurodollar Loans) prior to 10:30 A.M., Dallas, Texas time; and (2)
irrevocable telephonic notice of each Base Rate Loan representing an
additional borrowing hereunder or the Conversion of borrowing hereunder
from Eurodollar Loans to Base Rate Loans prior to 10:30 A.M. Dallas,
Texas time on the day of such proposed Base Rate Loan. Each such notice
shall specify the amount of the Revolving Credit Loan, the Type of
Revolving Credit Loan, the date of the Revolving Credit Loan and, if a
Eurodollar Loan, the Interest Period to be used in the computation of
interest. The Authorized Representative shall provide the Agent written
confirmation of each such telephonic notice on the same day by
telefacsimile transmission in the form of a Borrowing Notice, for
additional Revolving Credit Loans, or in the form attached hereto as
Exhibit H and incorporated herein by reference as to selection or
Conversion of interest rates as to outstanding Revolving Credit Loans,
in each case with appropriate insertions, but failure to provide such
confirmation shall not affect the validity of such telephonic notice.
The duration of the initial Interest Period for each Revolving Credit
Loan that is a Eurodollar Loan shall be as specified in
<PAGE> 31
the initial Borrowing Notice. The Borrower shall have the option to
elect the duration of subsequent Interest Periods and to Convert the
Revolving Credit Loans in accordance with Section 2.10 hereof. If the
Agent does not receive a notice of election of duration of an Interest
Period or to Convert by the time prescribed hereby and by Section 2.10
hereof, the Borrower shall be deemed to have elected to Convert such
Revolving Credit Loan to (or Continue such Revolving Credit Loan as) a
Base Rate Loan until the Borrower notifies the Agent in accordance
herewith and with Section 2.10.
(ii) Notice of receipt of each Borrowing Notice shall be
provided by the Agent to each Lender with reasonable promptness, but
not later than 12:00 noon, Dallas, Texas time on the same day as
Agent's receipt of such notice. The Agent shall provide each Lender
written confirmation of such telephonic confirmation by telefacsimile
transmission but failure to provide such notice shall not affect the
validity of such telephonic notice.
(iii) Not later than 2:00 P.M., Dallas, Texas time on the date
specified for each Revolving Credit Loan, each Lender shall, pursuant
to the terms and subject to the conditions of this Agreement, make the
amount of the Revolving Credit Loan or Revolving Credit Loans to be
made by it on such day available to the Agent, by depositing or
transferring the proceeds thereof in immediately available funds at the
Principal Office. The amount so received by the Agent shall, subject to
the terms and conditions of this Agreement, be made available to the
Borrower not later than 2:30 P.M., Dallas, Texas time by delivery of
the proceeds thereof to the Borrower's Account or otherwise as shall be
directed in the applicable Borrowing Notice by the Authorized
Representative.
(iv) Notwithstanding the foregoing, if a drawing is made
under any Letter of Credit prior to the Revolving Credit
Termination Date, then notice of such drawing shall be provided
promptly by NationsBank to the Agent and the drawing shall be paid by
the Agent without the requirement of notice from the Borrower from
immediately available funds which shall be advanced by the Swing Line
Lender under the Swing Line (provided that a Swing Line Loan shall
then be available). If a drawing is presented under any Letter of
Credit in accordance with the terms thereof and if a Swing Line Loan
in the amount of such drawing shall not be available and Borrower
shall not immediately reimburse NationsBank for the amount of such
drawing or payment upon demand, then notice of such drawing or payment
shall be provided promptly by NationsBank to the Agent and the Agent
shall provide notice to each Lender by telephone. If notice to the
Lenders of a drawing under any Letter of Credit is given by the Agent
at or before 12:00 noon Dallas, Texas time on any Business Day, the
Borrower shall be deemed to have requested, and each Lender shall,
pursuant to the conditions of this Agreement, make a Base Rate Loan
under the Revolving Credit Facility in the amount of such Lender's
Applicable Commitment Percentage of such drawing or payment and shall
pay such amount to the Agent for the account of NationsBank at the
Principal Office in Dollars and in immediately available funds before
2:00 P.M. Dallas, Texas time on the same Business Day. If notice to
the Lenders is given by the Agent after 12:00 noon Dallas, Texas time
on any Business Day, the Borrower shall be deemed to have requested,
and each Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make a Base Rate Loan under the
Revolving Credit Facility in the amount of such Lender's Applicable
Commitment Percentage of such drawing or payment and shall pay such
amount to the Agent for the
<PAGE> 32
account of NationsBank at the Principal Office in Dollars and in
immediately available funds before 12:00 noon Dallas, Texas time on
the next following Business Day. Such Base Rate Loan shall
continue unless and until the Borrower Converts such Base Rate Loan in
accordance with the terms of Section 2.10 hereof.
2.02 SWING LINE. Notwithstanding any other provision of this Agreement
to the contrary, in order to administer the Revolving Credit Facility in an
efficient manner and to minimize the transfer of funds between the Agent and the
Lenders, the Swing Line Lender shall make available Swing Line Loans to the
Borrower prior to the Revolving Credit Termination Date. Each provision of
Section 2.01(c) hereof applicable to Base Rate Loans shall be applicable in all
respects to each Swing Line Loan.
(a) The Swing Line Lender shall not make any Swing Line Loan pursuant
hereto (i) if the Borrower is not in compliance with all the conditions to the
making of Revolving Credit Loans set forth in this Agreement, (ii) if after
giving effect to such Swing Line Loan, the Swing Line Outstandings exceed the
Total Swing Line Commitment, or (iii) if after giving effect to such Swing Line
Loan, the sum of all Outstandings exceeds the lesser of the Borrowing Base or
the Total Revolving Credit Commitment.
(b) All Swing Line Loans shall bear interest at the rate agreed to
between the Borrower and the Swing Line Lender (provided that in the absence of
any agreed upon interest rate for a Swing Line Loan, such Swing Line Loan shall
bear interest at the Base Rate) and, unless made in accordance with Sections
2.01(c)(iv) or 2.02(e), shall be in the minimum principal amount of $1,000,000
(or the remaining Total Swing Line Commitment, if less) and any increment of
$100,000 in excess thereof.
(c) The principal amount of each Swing Line Loan shall be payable on
the earlier to occur of (i) the repayment thereof with a Revolving Credit Loan
pursuant to Section 2.02(e) below and (ii) the Swing Line Termination Date.
(d) The Borrower and each Lender acknowledge that all Swing Line Loans
are to be made solely by the Swing Line Lender to the Borrower but that such
Lender shall share the risk of loss with respect to such Swing Line Loans by
making a Revolving Credit Loan under the Revolving Credit Facility to repay such
Swing Line Loan in an amount equal to such Lender's Applicable Commitment
Percentage of such Swing Line Loan. The obligation of each Lender to so pay its
ratable share of the principal amount of outstanding Swing Line Loans by making
such Revolving Credit Loans under the Revolving Credit Facility up to but not
exceeding the Revolving Credit Commitment of such Lender shall be absolute and
unconditional and shall be made without counterclaim, deduction or set-off by
such Lender. Without limiting the generality of the foregoing, each Lender's
obligation to pay its ratable share of the principal amount of all outstanding
Swing Line Loans by making such Revolving Credit Loans as set forth above in
this Section 2.02(d) shall not be affected by:
(i) any failure or inability of the Borrower to satisfy the
applicable conditions to borrowing set forth in Section 5.02,
<PAGE> 33
(ii) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents, or
(iii) the occurrence of any Default or Event of Default.
(e) The Swing Line Lender may, at any time, in its sole discretion, by
written notice to the Borrower, the Agent and the Lenders, demand repayment of
its Swing Line Loans. Any such demand for repayment of the Swing Line Loans, and
the occurrence of the Swing Line Termination Date, shall be deemed to constitute
a Borrowing Notice pursuant to Section 2.01(c)(i) and (ii), effective on the
date of such demand or occurrence, respectively, with respect to a Base Rate
Loan advanced under the Revolving Credit Facility on the date of such Borrowing
Notice in the aggregate principal amount of all outstanding Swing Line Loans.
Each Lender shall pay to the Agent, for the account of the Swing Line Lender, an
amount of such Base Rate Loan equal to its Applicable Commitment Percentage
(determined before giving effect to any termination of the Revolving Credit
Commitments pursuant to Section 9.01) in the manner described in Section
2.01(c)(iii).
(f) The Agent shall upon the receipt of a Revolving Credit Loan
pursuant to Section 2.02(e) in an amount sufficient to repay any or all Swing
Line Loan(s) then outstanding, provide to the Swing Line Lender the amount
necessary to repay such Swing Line Loan(s) (which the Swing Line Lender shall
then apply to such repayment) and credit any balance of the Revolving Credit
Loan in immediately available funds to the Borrower's Account.
(g) The Swing Line shall continue in effect until the earlier of (i)
the Revolving Credit Termination Date or (ii) notification by the Swing Line
Lender as to the termination of the Swing Line, which may be given by the Swing
Line Lender in its sole discretion at any time, and the absence of any successor
Swing Line Lender within three (3) Business Days after the date such
notification is given.
2.03 PAYMENT OF INTEREST. (a) The Borrower shall pay interest to the
Agent at the Principal Office for the account of each Lender on the outstanding
and unpaid principal amount of each Loan made by such Lender for the period
commencing on the date of such Loan until such Loan shall be due (i) in the case
of each Revolving Credit Loan, at the Adjusted Eurodollar Rate or the Base Rate,
as elected or deemed elected by the Borrower or otherwise applicable to such
Revolving Credit Loan as herein provided, and (ii) in the case of each Swing
Line Loan, at the rate per annum agreed to between the Borrower and the Swing
Line Lender; provided, however, that if any amount shall not be paid when due
(at maturity, by acceleration or otherwise), all amounts outstanding hereunder
shall bear interest thereafter (i) in the case of a Eurodollar Loan, at a rate
of interest per annum which shall be two percent (2%) above the Adjusted
Eurodollar Rate for such Eurodollar Loan until the end of the Interest Period
during which such payment was due, and thereafter at a rate of interest per
annum which shall be two percent (2%) above the Base Rate, and (ii) in the case
of a Base Rate Loan or a Swing Line Loan, at a rate of interest per annum which
shall be two percent (2%) above the Base Rate, or (in each case) the maximum
rate permitted by applicable law, whichever is lower, from the date such amount
was due and payable until the date such amount is paid in full; provided
further, it is expressly agreed that the imposition of an additional rate of
interest on amounts not paid when due as provided in this Section 2.03 shall not
constitute a penalty or forfeiture.
<PAGE> 34
(b) Interest on the outstanding principal balance of each Loan shall be
computed on the basis of a year of 360 days and calculated for the actual number
of days elapsed. Interest on each Loan shall be paid (i) quarterly in arrears on
the last Business Day of each June, September, December and March commencing
June 30, 1997, on each Base Rate Loan and each Swing Line Loan, (ii) on the last
day of the applicable Interest Period for each Eurodollar Loan and, for any
Eurodollar Loan having an Interest Period of six months, also on the last day of
the third month of such Interest Period, and (iii) upon payment or prepayment in
full of the principal amount of such Loan.
2.04 PAYMENT OF PRINCIPAL. All Revolving Credit Outstandings and all
Swing Line Outstandings shall be due and payable to the Agent for the benefit of
each Lender in full on the Revolving Credit Termination Date, or earlier as
herein expressly provided. The principal amount of any Loan may be prepaid in
whole or in part at any time without penalty; provided, however, in connection
with the prepayment of a Eurodollar Rate Loan, the Borrower shall pay to the
Agent for the account of the Lenders the amount, if any, required under Section
4.05 hereof. In the event that at any time Outstandings exceed the lesser of the
Borrowing Base or the Total Revolving Credit Commitment, the Borrower shall
promptly repay upon the Agent's demand an amount of the Revolving Credit
Outstandings equal to or greater than such excess. All prepayments made by the
Borrower shall be in the amount of $5,000,000 or such greater amount which is an
integral multiple of $1,000,000, or such other amount as necessary to comply
with this Section 2.04 or with Section 2.09(a) or (b), together with accrued and
unpaid interest on the amounts paid.
2.05 PAYMENTS; NON-CONFORMING PAYMENTS. (a) Each payment of principal
(including any prepayment) and payment of interest shall be made to the Agent at
the Principal Office, for the account of each Lender's Applicable Lending
Office, in Dollars and in immediately available funds before 12:30 P.M. Dallas,
Texas time on the date such payment is due. With respect to Swing Line Loans,
each payment of principal and payment of interest shall be made to the Agent,
for the account of the Swing Line Lender's Applicable Lending Office, at the
Principal Office in Dollars and in immediately available funds before 12:30
P.M., Dallas, Texas time on the date such payment is due. The Borrower shall
give the Agent prior telephonic notice of any payment of principal, such notice
to be given by not later than 10:30 A.M. Dallas, Texas time, on the date of such
payment.
(b) The Agent shall deem any payment by or on behalf of the Borrower
hereunder that is not made both (i) in Dollars and in immediately available
funds and (ii) prior to 12:30 P.M. Dallas, Texas time on the date payment is due
to be a non-conforming payment. Any such payment shall not be deemed to be
received by the Agent until the time such funds become available funds. Any
non-conforming payment shall constitute a Default or Event of Default. The Agent
shall give prompt notice to the Authorized Representative and each of the
Lenders (confirmed in writing) if any payment is non-conforming. Interest shall
continue to accrue on any principal as to which a non-conforming payment is made
until such funds become available funds (but in no event less than the period
from the date of such payment to the next succeeding Business Day) at the
respective rates of interest per annum specified in Section 2.03(a) in respect
of late payments of interest, from the date such amount was due and payable
until the date such amount is paid in full.
<PAGE> 35
(c) In the event that any payment hereunder or under the Notes becomes
due and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day unless provided otherwise under
clause (ii) under the definition of "Interest Period;" provided that interest
shall continue to accrue during the period of any such extension.
2.06 BORROWER'S ACCOUNT. The Borrower shall continuously maintain the
Borrower's Account for the purposes herein contemplated.
2.07 NOTES. (a) Revolving Credit Loans made by each Lender shall be
evidenced by, and be repayable with interest in accordance with the terms of,
the Revolving Credit Note payable to the order of such Lender in the amount of
its Revolving Credit Commitment, which Revolving Credit Note shall be dated the
Closing Date or such later date pursuant to an Assignment and Acceptance and
shall be duly completed, executed and delivered by the Borrower.
(b) Swing Line Loans made by the Swing Line Lender shall be evidenced
by, and be repayable with interest in accordance with the terms of, the Swing
Line Note dated the Closing Date and duly executed and delivered by the
Borrower.
2.08 PRO RATA PAYMENTS. Except as otherwise provided herein, (a) each
payment and prepayment on account of the principal of and interest on the
Revolving Credit Loans and the fees described in Section 2.11 hereof shall be
made to the Agent in the aggregate amount payable to the Lenders for the account
of the Lenders pro rata based on their Applicable Commitment Percentages, (b)
all payments to be made by the Borrower for the account of each of the Lenders
on account of principal, interest and fees, shall be made without set-off or
counterclaim, and (c) the Agent will promptly distribute such payments received
to the Lenders as provided for herein.
2.09 REDUCTIONS.
(a) VOLUNTARY. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time (but not more frequently than
once during each calendar quarter upon not less than five (5) Business Days
written notice to the Agent) to reduce the Total Revolving Credit Commitment.
The Agent shall give each Lender, within one (1) Business Day, telephonic notice
(confirmed in writing) of such reduction. Each such reduction shall be in the
amount of $10,000,000 or such greater amount which is in an integral multiple of
$5,000,000, and shall permanently reduce the Total Revolving Credit Commitment
and the Revolving Credit Commitment of each Lender pro rata. Each reduction of
the Total Revolving Credit Commitment shall be accompanied by payment of the
principal amount of the Revolving Credit Outstandings to the extent that the
Outstandings exceed the Total Revolving Credit Commitment after giving effect to
such reduction, together with amounts required under Section 2.04.
(b) MANDATORY. If the Borrower and its Subsidiaries shall receive
aggregate Net Proceeds from the disposition of assets in excess of $20,000,000
during any Four-Quarter Period, such excess Net Proceeds shall, subject to the
next sentence, be applied to reduce permanently the
<PAGE> 36
Total Revolving Credit Commitment and payment of the principal amount of the
Revolving Credit Outstandings in accordance with the terms set forth in
subsection (a) above without regard to limitations on the amount of such
reduction. The immediately preceding sentence shall not apply to any Net
Proceeds which the Borrower or such Subsidiary, as the case may be, may apply
within 180 days of receipt thereof to (i) repay Indebtedness of the Borrower or
any Subsidiary which is secured by a Lien on the assets or property of the
Borrower or any Subsidiary which was the subject of such asset disposition and
permanently reduce any related commitment, or (ii) repay Revolving Credit
Outstandings, or (iii) make Permitted Acquisitions or acquire, construct or
improve properties or capital assets, in each case, to be used in the same line
of business being conducted by the Borrower or its Subsidiaries at such time.
2.10 CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. The
Borrower may:
(a) upon notice to the Agent on or before 10:30 A.M. Dallas, Texas time
on any Business Day Convert all or a part of Eurodollar Loans to Base Rate Loans
on the last day of the Interest Period for such Eurodollar Loans; and
(b) provided that no Default or Event of Default shall have occurred
and be continuing and subject to the limitations set forth below and in Sections
4.01(a), 4.02 and 4.03 hereof, on three (3) Eurodollar Business Days' notice to
the Agent on or before 10:30 A.M. Dallas, Texas time:
(i) Continue Eurodollar Loans and elect a subsequent Interest
Period for all or a portion of Eurodollar Loans to begin on the last
day of the current Interest Period for such Eurodollar Loans; or
(ii) Convert Base Rate Loans (other than Swing Line Loans) to
Eurodollar Loans on any Eurodollar Business Day.
Notice of any such Continuation or Conversion shall specify the
effective date of such Continuation or Conversion and, with respect to
Eurodollar Loans, the Interest Period to be applicable to the Loan as Continued
or Converted. Each Continuation and Conversion pursuant to this Section 2.10
shall be subject to the limitations on Eurodollar Loans set forth in the
definition of "Interest Period" herein and in Sections 2.01(a), (b) and (c) and
Article IV hereof. All such Continuations or Conversions of Loans shall be
effected pro rata based on the Applicable Commitment Percentages of the Lenders.
2.11 UNUSED FEE. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrower agrees to pay to
the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages of the Revolving Credit Facility, the Applicable Unused
Fee payable quarterly in arrears on the sum of the daily amount by which the
Total Revolving Credit Commitment exceeds the sum of the average daily (i)
Revolving Credit Outstandings and (ii) Outstanding Letters of Credit. The Swing
Line Outstandings shall not be outstanding Loans for purposes of determining
such fee. Such payments of fees provided for in this Section 2.11 shall be due
in arrears on the last Business Day of each June, September, December and March
beginning June 30, 1997 to and on the Revolving Credit Termination Date.
Notwithstanding the foregoing, so long as any Lender fails to make
<PAGE> 37
available any portion of its Revolving Credit Commitment when requested, such
Lender shall not be entitled to receive payment of its pro rata share of such
fee until such Lender shall make available such portion. Such fee shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed.
2.12 DEFICIENCY LOANS. No Lender shall be responsible for any default
of any other Lender in respect to such other Lender's obligation to make any
Loan hereunder nor shall the Revolving Credit Commitment of any Lender hereunder
be increased as a result of such default of any other Lender. Without limiting
the generality of the foregoing, in the event any Lender shall fail to advance
funds to the Borrower as herein provided, the Agent may in its discretion, but
shall not be obligated to, advance under the applicable Note in its favor as a
Lender all or any portion of such amount or amounts (each, a "deficiency
advance") and shall thereafter be entitled to payments of principal of and
interest on such deficiency advance in the same manner and at the same interest
rate or rates to which such other Lender would have been entitled had it made
such advance under its applicable Note; provided that, upon payment to the Agent
from such other Lender of the entire outstanding amount of each such deficiency
advance, together with accrued and unpaid interest thereon, from the most recent
date or dates interest was paid to the Agent by the Borrower on each Loan
comprising the deficiency advance at the interest rate per annum for overnight
borrowing by the Agent from the Federal Reserve Bank, then such payment shall be
credited against the applicable Note of the Agent in full payment of such
deficiency advance and the Borrower shall be deemed to have borrowed the amount
of such deficiency advance from such other Lender as of the most recent date or
dates, as the case may be, upon which any payments of interest were made by the
Borrower thereon.
2.13 USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility and the Swing Line hereunder shall be used by the
Borrower to refinance certain existing indebtedness, to finance capital
expenditures, to finance Permitted Acquisitions and to provide for the general
corporate purposes of the Borrower. None of such proceeds will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute any of the Loans under this Agreement a "purpose credit" within the
meaning of said Regulation U or Regulation X (12 C.F.R. Part 224) of the Board.
2.14 ADDITIONAL FEES. In addition to any fees described above, the
Borrower agrees to pay to the Agent and NationsBank such other fees as may be
agreed to in a separate writing or writings.
2.15 BORROWING BASE; INVESTMENT RATING. Notwithstanding any other term,
covenant or condition contained in this Agreement or any of the other Loan
Documents, immediately upon both Rating Agencies assigning an Investment Grade
Rating, all limitations on the amount of Outstandings based in any way on the
Borrowing Base shall be of no further force and effect and the reports under
Section 7.01(d) shall no longer be required to be delivered.
<PAGE> 38
ARTICLE III.
LETTERS OF CREDIT
3.01 LETTERS OF CREDIT. NationsBank agrees, subject to the terms and
conditions of this Agreement, upon request and for the account of Borrower, to
issue from time to time Letters of Credit for the Borrower's general corporate
purposes upon delivery to NationsBank of an Application and Agreement for Letter
of Credit in form and content acceptable to NationsBank; provided, that the
Outstanding Letters of Credit shall not exceed the Total Letter of Credit
Commitment. No Letter of Credit shall be issued by NationsBank with an expiry
date or payment date occurring subsequent to the fifth Business Day preceding
the Revolving Credit Termination Date. NationsBank shall not issue any Letter of
Credit if the Outstandings when added to the face amount of any requested Letter
of Credit would exceed the lesser of the Borrowing Base or the Total Revolving
Credit Commitment.
3.02 REIMBURSEMENT.
(a) The Borrower hereby unconditionally and irrevocably agrees
immediately to pay to NationsBank on demand at the Principal Office all amounts
required to pay all drafts drawn under the Letters of Credit and all reasonable
and customary expenses incurred by NationsBank in connection with the Letters of
Credit. The Borrower's obligations to pay NationsBank under this Section 3.02,
and NationsBank's right to receive the same, shall be absolute, irrevocable and
unconditional and shall not be affected by any circumstance whatsoever. To the
extent permitted by Section 2.01(c)(iv) hereof, all amounts owing in connection
with a Letter of Credit shall be paid pursuant to Swing Line Loans or Revolving
Credit Loans. The Borrower agrees that NationsBank may, in its sole discretion,
accept or pay, as complying with the terms of any Letter of Credit, any drafts
or other documents otherwise in order which may be signed or issued by an
administrator, executor, trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, liquidator, receiver, attorney in fact or other
legal representative of a party who is authorized under such Letter of Credit to
draw or issue any drafts or other documents. The Borrower agrees to pay
NationsBank interest on any amounts not paid when due hereunder at the Base Rate
plus two percent (2%), or the maximum rate permitted by applicable law, if
lower.
(b) In accordance with the provisions of Section 2.01(c) hereof,
NationsBank shall notify the Agent (and shall also notify the Borrower) of any
drawing under any Letter of Credit as promptly as practicable following the
receipt by NationsBank of such drawing.
(c) Each Lender (other than NationsBank) shall automatically acquire on
the date of issuance thereof, a Participation in the liability of NationsBank in
respect of each Letter of Credit in an amount equal to such Lender's Applicable
Commitment Percentage of such liability, and to the extent that the Borrower is
obligated to pay NationsBank under Section 3.02(a), each Lender (other than
NationsBank) thereby shall, as hereinafter described, absolutely,
unconditionally and irrevocably assume, and shall be unconditionally obligated
to pay to NationsBank its Applicable Commitment Percentage of the liability of
NationsBank under such Letter of Credit in the manner set forth below:
<PAGE> 39
(i) With respect to amounts owing in connection with a
Letter of Credit for which Swing Line Loans shall then be available,
such Swing Line Loans shall be advanced under the Swing Line and each
Lender (including the Swing Line Lender in its capacity as a Lender)
shall share in the risk of loss with respect to such Swing Line Loans
by, at the request of the Swing Line Lender, making a Revolving Credit
Loan under the Revolving Credit Facility to repay such Swing Line Loan
in an amount equal to such Lender's Applicable Commitment Percentage of
such Swing Line Loan as set forth in Section 2.02.
(ii) With respect to amounts owing in connection with a
Letter of Credit for which a Swing Line Loan shall not be available,
each Lender (including NationsBank in its capacity as a Lender) prior
to the Revolving Credit Termination Date, shall, subject to the terms
and conditions of Article II, make a Revolving Credit Loan bearing
interest at the Base Rate to the Borrower by paying to the Agent for
the account of NationsBank at the Principal Office in Dollars and in
immediately available funds, an amount equal to its Applicable
Commitment Percentage of any drawing under a Letter of Credit, all as
described in and pursuant to Section 2.01(c)(iv).
(iii) With respect to drawings under any of the Letters of
Credit for which a Revolving Credit Loan is not made as set forth in
clause (ii) above, each Lender, upon receipt from the Agent of notice
of a drawing in the manner described in Section 2.01(c), shall promptly
pay to the Agent for the account of NationsBank, prior to the
applicable time set forth in Section 2.01(c), its Applicable Commitment
Percentage of such drawing. Simultaneously with the making of each such
payment by a Lender to the Agent for the account of NationsBank, such
Lender shall, automatically and without any further action on the part
of NationsBank or such Lender, acquire a Participation in an amount
equal to such payment (excluding the portion thereof constituting
interest) in the related Reimbursement Obligation of the Borrower. The
Lenders acquisition of and payment for Participations in any
Reimbursement Obligation as set forth in this clause (iii) shall occur
only if such Reimbursement Obligation is not paid pursuant to Swing
Line Loans or Revolving Credit Loans. The Reimbursement Obligations of
the Borrower shall be immediately due and payable whether by Loans made
in accordance with Section 2.01(c) or otherwise.
(iv) Each Lender's obligation to make payment to the Agent
for the account of NationsBank pursuant to this Section 3.02(c), and
the right of NationsBank to receive the same, shall be made without any
offset, abatement, withholding or reduction whatsoever. If any Lender
is obligated to pay but does not pay amounts to the Agent for the
account of NationsBank in full upon such request as required by this
Section 3.02(c), such Lender shall, on demand, pay to the Agent for the
account of NationsBank interest on the unpaid amount for each day
during the period commencing on the date of notice given to such Lender
pursuant to Section 2.01(c) until such Lender pays such amount to the
Agent for the account of NationsBank in full at the interest rate per
annum for overnight borrowing by NationsBank from the Federal Reserve
Bank.
(v) In the event the Lenders have purchased Participations
in any Reimbursement Obligation as set forth in clause (iii) above,
then at any time payment is received by NationsBank as issuer of the
Letter of Credit from the Borrower of such
<PAGE> 40
Reimbursement Obligation, in whole or in part, NationsBank shall pay to
each Lender an amount equal to its Applicable Commitment Percentage of
such payment from the Borrower.
(vi) Nothing contained herein shall be deemed to release
NationsBank from any obligation it may incur to reimburse any Lender
arising from NationsBank's wrongful payment of a drawing under any
Letter of Credit as a result of its gross negligence or willful
misconduct.
(d) Promptly following the end of each calendar quarter, NationsBank
shall deliver to the Agent, and the Agent shall deliver to each Lender, a notice
describing the aggregate undrawn amount of all Letters of Credit at the end of
such quarter. Upon the request of any Lender from time to time, NationsBank
shall deliver to the Agent, and the Agent shall deliver to such Lender, any
other information reasonably requested by such Lender with respect to each
Outstanding Letter of Credit.
(e) The issuance by NationsBank of each Letter of Credit shall, in
addition to the conditions precedent set forth in Section 5.01 and Section 5.02
hereof, be subject to the conditions that such Letter of Credit be in such form
and contain such terms as shall be reasonably satisfactory to NationsBank
consistent with the then current practices and procedures of NationsBank with
respect to similar letters of credit, and the Borrower shall have executed and
delivered such other instruments and agreements relating to such Letters of
Credit as NationsBank shall have reasonably requested consistent with such
practices and procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits, 1993
revision, International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto.
(f) Without duplication of Section 11.11 hereof, the Borrower hereby
agrees to defend, indemnify and hold harmless NationsBank, each other Lender and
the Agent from and against any and all claims and damages, losses, liabilities,
reasonable costs and expenses which NationsBank, such other Lender or the Agent
may incur (or which may be claimed against NationsBank, such other Lender or the
Agent) by any Person by reason of or in connection with the issuance or transfer
of or payment or failure to pay under any Letter of Credit; provided that the
Borrower shall not be required to indemnify NationsBank, any other Lender or the
Agent for any claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by the willful misconduct or gross
negligence of the party to be indemnified. The provisions of this Section
3.02(f) shall survive repayment of the Obligations, the occurrence of the
Revolving Credit Termination Date, and expiration or termination of this
Agreement.
(g) Without limiting Borrower's rights as set forth in Section 3.02(f)
above, the obligation of the Borrower to immediately reimburse NationsBank for
drawings made under Letters of Credit shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement and such Letters of Credit and the related Applications and
Agreements for Letters of Credit, under the following circumstances:
<PAGE> 41
(i) any lack of validity or enforceability of the Letter of
Credit, the obligation supported by the Letter of Credit or any other
agreement or instrument relating thereto (collectively, the "Related
Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related Documents;
(iii) the existence of any claim, setoff, defense or other
rights which the Borrower may have at any time against any beneficiary
or any transferee of a Letter of Credit (or any Persons for whom any
such beneficiary or any such transferee may be acting), Agent, Lenders
or any other Person, whether in connection with the Loan Documents, the
Related Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between the
Borrower and any beneficiary or any transferee of a Letter of Credit
(or any persons or entities for whom such beneficiary or any such
transferee may be acting), Agent, Lenders or any other Person;
(v) any draft, statement or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(vi) any delay, extension of time, renewal, compromise or
other indulgence or modification granted or agreed to by Agent, with or
without notice to or approval by the Borrower in respect of any of
Borrower's Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing; provided, however, that nothing
contained herein shall be deemed to release NationsBank or any other
Lender of any liability for actual loss arising as a result of its
gross negligence or willful misconduct.
3.03 LETTER OF CREDIT FEE. The Borrower agrees to pay (i) to the Agent,
for the pro rata benefit of the Lenders based on their Applicable Commitment
Percentages, a fee per annum on the aggregate amount available to be drawn on
each Outstanding Letter of Credit at a rate equal to the Applicable Interest
Addition as in effect from time to time which fee shall be deemed immediately
earned when paid and (ii) to NationsBank for its own account, as issuer of each
Letter of Credit, a fee per annum equal to .125% of the aggregate amount
available to be drawn on each Outstanding Letter of Credit which fee shall be
deemed immediately earned when paid. Such payments of fees provided for in this
Section 3.03 with respect to each Letter of Credit shall be payable in arrears
in quarterly installments. Such fees shall be calculated on the basis of a year
of 360 days for the actual number of days elapsed.
3.04 ADMINISTRATIVE FEES. The Borrower shall pay to NationsBank such
administrative fee and other fees, if any, in connection with the Letters of
Credit in such amounts and at such times as NationsBank and the Borrower shall
agree in writing from time to time.
<PAGE> 42
ARTICLE IV.
CHANGE IN CIRCUMSTANCES
4.01 INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
or any change in the interpretation or administration thereof by any
Governmental Authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
Applicable Lending Office) with any request or directive (whether or not having
the force of law) of any such Governmental Authority, central bank, or
comparable agency:
(i) shall subject such Lender (or its Applicable Lending
Office) to any tax, duty, or other charge with respect to any
Eurodollar Loans, its Note, or its obligation to make Eurodollar Loans,
or change the basis of taxation of any amounts payable to such Lender
(or its Applicable Lending Office) under this Agreement or its Note in
respect of any Eurodollar Loans (other than taxes imposed on the
overall net income of such Lender by the jurisdiction in which such
Lender has its principal office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Reserve Requirement utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including the Revolving
Credit Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or on the London interbank market any other condition affecting
this Agreement or its Note or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Agreement or its Note
with respect to any Eurodollar Loans, then the Borrower shall pay to such Lender
on demand such amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests compensation by the Borrower
under this Section 4.01(a), the Borrower may, by notice to such Lender (with a
copy to the Agent), suspend the obligation of such Lender to make or Continue
Eurodollar Loans, or to Convert Base Rate Loans into Loans of such Type, until
the event or condition giving rise to such request ceases to be in effect (in
which case the provisions of Section 4.04 shall be applicable); provided that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any Governmental Authority, central bank, or
<PAGE> 43
comparable agency charged with the interpretation or administration thereof, or
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank, or comparable
agency, has or would have the effect of reducing the rate of return on the
capital of such Lender or any corporation controlling such Lender as a
consequence of such Lender's obligations hereunder to a level below that which
such Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies with
respect to capital adequacy), then from time to time upon demand the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section 4.01 for a period
not greater than 180 days and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this Section 4.01
shall furnish to the Borrower and the Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder which shall be
conclusive when made in good faith and in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods. Any claim for compensation under this Section 4.01 shall be
made by the applicable Lender within 180 days after the date on which the
officer of such Lender who has responsibility for compliance with the
obligations under this Agreement knows or has reason to know of such Lender's
right to any compensation under this Section 4.01 or, if any such Lender fails
to deliver such demand within such 180-day period, such Lender shall only be
entitled to compensation under this Section 4.01 from and after the date that is
180 days prior to the date such Lender delivers such demand.
4.02. LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Eurodollar Loan:
(a) the Agent reasonably determines (which determination shall
be conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Adjusted Eurodollar Rate for such Interest Period; or
(b) the Required Lenders reasonably determine (which
determination shall be conclusive) and notify the Agent that the
Adjusted Eurodollar Rate will not adequately and fairly reflect the
cost to the Lenders of funding Eurodollar Loans for such Interest
Period;
then the Agent shall give the Borrower prompt notice thereof and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Eurodollar Loans, Continue Eurodollar Loans, or to Convert Base Rate
Loans into Eurodollar Loans.
4.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Loans
hereunder, then such Lender shall promptly notify the Borrower thereof
<PAGE> 44
and such Lender's obligation to make or Continue Eurodollar Loans and to Convert
Base Rate Loans into Eurodollar Loans shall be suspended until such time as such
Lender may again make, maintain, and fund Eurodollar Loans (in which case the
provisions of Section 4.04 shall be applicable).
4.04 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make a Eurodollar Loan or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to Section 4.01, 4.02 or 4.03
hereof (such Eurodollar Loans being herein called "Affected Loans"), such
Lender's Affected Loans shall be automatically Converted into Base Rate Loans on
the last day(s) of the then current Interest Period(s) for Affected Loans (or,
in the case of a Conversion required by Section 4.03 hereof, on such earlier
date as such Lender may specify to the Borrower with a copy to the Agent) and,
unless and until such Lender gives notice as provided below that the
circumstances specified in Section 4.01, 4.02 or 4.03 hereof that gave rise to
such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Eurodollar Loans shall be made or Continued instead as
Base Rate Loans, and all Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall be Converted instead into (or
shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 4.01, 4.02 or 4.03 hereof that gave rise to
the Conversion of such Lender's Affected Loans pursuant to this Section 4.04 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans made by other Lenders, to the extent necessary so that, after
giving effect thereto, all Loans held by the Lenders holding Eurodollar Loans
and by such Lender are held pro rata (as to principal amounts, Types, and
Interest Periods) in accordance with their respective Revolving Credit
Commitments.
4.05 COMPENSATION. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Loan for any reason (including, without limitation, the acceleration of
the Loans pursuant to Section 9.01) on a date other than the last day
of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Section 5.02 to be satisfied) to borrow, Convert, Continue, or prepay a
Eurodollar Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant Borrowing Notice,
prepayment, Continuation, or Conversion under this Agreement.
<PAGE> 45
4.06 TAXES. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Lender and
the Agent, (i) taxes imposed on its income, and franchise taxes imposed on it,
by the jurisdiction under the laws of which such Lender (or its Applicable
Lending Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (ii) any taxes (other than withholding taxes) that would not
be imposed but for a connection between the Agent or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any withholding taxes
payable with respect to payments hereunder or under any other Loan Document
under applicable law in effect on the date hereof, and (iv) and taxes arising
after the date hereof solely as a result of or attributable to a Lender changing
its Applicable Lending Office after the date such Lender becomes a party hereto
(all such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable under this Agreement or any other Loan Document to any Lender or the
Agent, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 4.06) such Lender or the Agent receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) the Borrower shall furnish to the
Agent, at its principal office, the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 4.06) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on
<PAGE> 46
payments of interest or certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States, (ii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
and (iii) any other form or certificate required by any taxing authority
(including any certificate required by Sections 871(h) and 881(c) of the
Internal Revenue Code), certifying that such Lender is entitled to an exemption
from or a reduced rate of tax on payments pursuant to this Agreement or any of
the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to Section 4.06(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section 4.06(a) or
4.06(b) with respect to Taxes imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 4.06, then such Lender will agree
to use reasonable efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is not
otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 4.06 shall survive the termination of this Agreement, each Lender's
Revolving Credit Commitment and the payment in full of the Notes and all other
Obligations.
(i) Any Lender claiming additional amounts payable pursuant to this
Section 4.06 shall use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to file any certificate or document
requested by the Borrower or to change the jurisdiction of its Applicable
Lending Office if the making of such filing or change would avoid the need for
or reduce the amount of any such additional amounts which may thereafter accrue
and would not, in the sole judgment of such Lender, be disadvantageous to such
Lender. The Borrower shall promptly upon request by any Lender or the Agent take
all actions (including, without limitation, the completion of forms and the
provisions of information to the appropriate taxing authorities) reasonably
requested by such Lender or the Agent to secure the benefit of any exemption
from, or relief with respect to, Taxes or Other Taxes in relation to any amounts
payable under this Agreement.
(j) In the event that an additional payment is made under Section
4.06(a) or 4.06(c) for the account of any Lender and such Lender, in its
reasonable opinion, determines
<PAGE> 47
that it has received or been granted a credit against or release or remission
for, or repayment of, any tax paid or payable by it in respect of or calculated
with reference to the deduction or withholding giving rise to such payment, such
Lender shall, to the extent that it can do so without prejudice to the retention
of the amount of such credit, relief, remission or repayment, pay to the
Borrower such amount as such Lender shall reasonably determine to be
attributable to such deduction or withholding and as will leave such Lender
(after such payment) in no better or worse position than it would have been in
if the Borrower had not been required to make such deduction or withholding.
<PAGE> 48
ARTICLE V
CONDITIONS TO MAKING LOANS AND ISSUING LETTERS OF CREDIT
5.01 CONDITIONS OF INITIAL LOAN AND ISSUANCE OF LETTERS OF CREDIT. The
obligation of the Lenders to make the initial Loan and of NationsBank to issue
the Letters of Credit is subject to the following conditions precedent:
A. THE AGENT SHALL HAVE RECEIVED ON THE CLOSING DATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE AGENT AND LENDERS, OR OTHERWISE BE SATISFIED AS
TO, EACH OF THE FOLLOWING:
(i) executed originals of each of this Agreement, the Notes
and the other Loan Documents, together with all schedules and exhibits
thereto;
(ii) favorable written opinions of special counsel to the
Borrower and the Guarantors dated the Closing Date, addressed to the
Agent and the Lenders and satisfactory to the Agent, the Lenders and to
Smith Helms Mulliss & Moore, L.L.P., special counsel to the Agent,
substantially in the form of Exhibit I attached hereto and incorporated
herein by reference;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee thereof) of
the Borrower and each of the Guarantors certified by its secretary or
assistant secretary or other appropriate official as of the Closing
Date, appointing (in the case of the Borrower) the initial Authorized
Representatives and approving and adopting the Loan Documents to be
executed by such Person, and authorizing the execution and delivery
thereof and the incurrence of obligations thereunder;
(iv) specimen signatures of officers of the Borrower and each
Guarantor executing the Loan Documents on behalf of such Person,
certified by the secretary or assistant secretary or other appropriate
official of the Borrower or Guarantor, as applicable;
(v) the charter documents or documents of establishment of
the Borrower and each Guarantor certified as of a recent date by the
Secretary of State or other appropriate Governmental Authority of its
jurisdiction of incorporation;
(vi) the by-laws of the Borrower and, to the extent the same
exist, each Guarantor certified as of the Closing Date as true and
correct by the secretary or assistant secretary of the Person to whom
such by-laws relate;
(vii) certificates issued as of a recent date by the
Secretary of State or other appropriate Governmental Authority of its
jurisdiction of incorporation as to the due existence and, if issued by
such governmental authority, good standing of the Borrower and each
Guarantor therein;
<PAGE> 49
(viii) appropriate certificates of qualification to do
business, good standing and, where appropriate, authority to conduct
business under assumed name, issued in respect of the Borrower and each
Guarantor as of a recent date by the Secretary of State or other
appropriate Governmental Authority of each jurisdiction in which the
failure to be qualified to do business or authorized so to conduct
business could reasonably be expected to have a Material Adverse
Effect;
(ix) notice of appointment of the initial Authorized
Representative of the Borrower in the form of Exhibit C hereto;
(x) certificate of an Authorized Representative dated the
Closing Date demonstrating compliance with the financial covenants
contained in Sections 8.01 through 8.05 and calculating the Borrowing
Base, all as of the immediately preceding Determination Date,
substantially in the form of Exhibit J attached hereto;
(xi) evidence of insurance required by Section 7.05;
(xii) an initial Borrowing Notice;
(xiii) all fees payable by the Borrower on the Closing Date to
the Agent, NationsBank and the Lenders, including any upfront fee as
agreed to in writing;
(xiv) consolidated financial statements of the Borrower and
its Subsidiaries for Fiscal Year 1996, including balance sheets, income
and cash flow statements, audited by independent public accountants of
recognized national standing and prepared in conformity with GAAP, and
historical pro forma consolidated financial statements for Fiscal Year
1996 giving effect to all completed Acquisitions; and
(xv) such other documents, instruments, certificates and
opinions as the Agent or any Lender may reasonably request on or prior
to the Closing Date in connection with the consummation of the
transactions contemplated hereby.
B. EACH OF THE FOLLOWING SHALL HAVE OCCURRED OR BE TRUE:
(i) there shall not be any action, suit, investigation or
proceeding pending or threatened by any Governmental Authority that
could reasonably be expected to have a Material Adverse Effect on the
Borrower or its Subsidiaries or any transaction contemplated hereby;
and
(ii) the Borrower and its Subsidiaries shall be in
compliance with respect to all existing financial obligations.
C. IN THE GOOD FAITH JUDGMENT OF THE AGENT AND THE LENDERS:
(i) there shall not have occurred a material adverse change
since the Borrower's most recent annual report dated February 1, 1997
in the business, business
<PAGE> 50
prospects, results of operations, condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole, or in the facts and
information regarding such entities as represented to date; and
(ii) Agent shall have received and reviewed, with results
satisfactory to the Agent and its counsel, all information regarding
litigation, tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material contracts, debt
agreements, property ownership, and contingent liabilities of the
Borrower and its Subsidiaries.
5.02 CONDITIONS OF LOANS. The obligations of the Lenders to make any
Loans, the Swing Line Lender to make Swing Line Loans and NationsBank to issue
Letters of Credit hereunder, on or subsequent to the Closing Date are (except as
set forth in Section 2.02(e) with respect to Revolving Credit Loans made to
repay Swing Line Loans) subject to the satisfaction of the following conditions:
(a) the Agent shall have received a notice of such borrowing or request
if required by Article II hereof;
(b) the representations and warranties of the Borrower and each
Guarantor set forth in Article VI hereof and in each of the other Loan Documents
shall be true and correct in all material respects on and as of the date of such
Loan or issuance of such Letters of Credit, as the case may be, with the same
effect as though such representations and warranties had been made on and as of
such date, other than such representations and warranties which expressly relate
to an earlier date, except that the representations and warranties set forth in
Section 6.01(d) and (e) shall be deemed to include and take into account any
merger or consolidation permitted under Section 8.10 hereof, and except that the
financial statements referred to in Section 6.01(f)(i) and 6.01(f)(ii) shall be
deemed to be those financial statements most recently delivered to the Agent and
the Lenders pursuant to Section 7.01 hereof;
(c) in the case of the issuance of a Letter of Credit, Borrower shall
have executed and delivered to NationsBank an Application and Agreement for
Letter of Credit in form and content acceptable to NationsBank together with
such other instruments and documents as it may reasonably request;
(d) at the time of each such Loan, Swing Line Loan or issuance of each
Letter of Credit, as the case may be, no Default or Event of Default shall have
occurred and be continuing;
(e) immediately after giving effect to a Swing Line Loan, the aggregate
Swing Line Outstandings shall not exceed the Total Swing Line Commitment;
(f) immediately after issuing any Letter of Credit, the aggregate
Outstanding Letters of Credit shall not exceed the Total Letter of Credit
Commitment; and
(g) immediately after giving effect to any Loan or Letter of Credit (i)
the sum of Outstandings shall not exceed the lesser of the Total Revolving
Credit Commitment or the Borrowing Base, as most recently determined by the
Borrower and presented to the Agent in
<PAGE> 51
either a compliance certificate required pursuant to Section 7.01(a) or (b)
hereof or in the Borrowing Base Certificate delivered to the Agent pursuant to
Section 7.01(d) hereof, and (ii) each Lender's Applicable Commitment Percentage
of Revolving Credit Loans and Participations shall not exceed its Revolving
Credit Commitment.
<PAGE> 52
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01 REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Lenders and the Agent with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans and issuance of Letters
of Credit), that:
(a) ORGANIZATION AND AUTHORITY.
(i) the Borrower and each Subsidiary is a legal entity duly
organized or created and validly existing under the laws of the
jurisdiction of its incorporation or creation;
(ii) the Borrower and each Subsidiary (x) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted, and (y) is qualified to do
business in each jurisdiction in which its ownership or lease of
property or the nature of its business makes such qualification
necessary and in which failure so to qualify could reasonably be
expected to have a Material Adverse Effect;
(iii) the Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(iv) each Guarantor has the power and authority to execute,
deliver and perform the Guaranty and the other Loan Documents to which
it is a party; and
(v) each of the Loan Documents to which a Loan Party is a
party has been duly executed and delivered by such Loan Party and is
the legal, valid and binding obligation or agreement, as the case may
be, of such Loan Party, enforceable against such Loan Party in
accordance with its terms, subject to the effect of any applicable
bankruptcy, moratorium, insolvency, reorganization or other similar law
affecting the enforceability of creditors' rights generally and to the
effect of general principles of equity which may limit the availability
of equitable remedies (whether in a proceeding at law or in equity);
(b) LOAN DOCUMENTS. The execution, delivery and performance by a Loan
Party of each of the Loan Documents to which such Loan Party is a party:
(i) have been duly authorized by all requisite corporate,
partnership or other similar action (including any required shareholder
approval) of such Loan Party required for the lawful execution,
delivery and performance thereof;
(ii) do not violate any provisions of (1) applicable law,
rule or regulation, (2) any order of any court or other agency of
government binding on the Borrower or
<PAGE> 53
any Guarantor, or their respective properties, or (3) the charter
documents, documents of creation, by-laws, partnership agreements or
other similar governing documents of such Loan Party;
(iii) will not be in conflict with, result in a breach of or
constitute an event of default, or an event which, with notice or lapse
of time, or both, would constitute an event of default, under any
indenture, agreement or other instrument to which any Loan Party is a
party, or by which the properties or assets of any Loan Party are
bound; and
(iv) will not result in the creation or imposition of any
Lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of any Loan Party except any Liens in favor of the
Agent and the Lenders created by the Loan Documents;
(c) SOLVENCY. Each Loan Party is Solvent after giving effect to the
transactions contemplated by this Agreement and the other Loan Documents;
(d) SUBSIDIARIES AND STOCKHOLDERS. Borrower has no Subsidiaries other
than those Persons listed as Subsidiaries in Schedule 6.01(d) hereto and
Subsidiaries after the date hereof acquired or created in compliance with
Section 7.18; Schedule 6.01(d) to this Agreement states as of the date hereof
the authorized and issued capitalization of each Subsidiary listed thereon, the
number of shares or other equity interests of each class of capital stock or
interest issued and outstanding of each such Subsidiary and the number and/or
percentage of outstanding shares or other equity interest (including options,
warrants and other rights to acquire any interest) of each such class of capital
stock or equity interest owned by Borrower or by any such Subsidiary; the
outstanding shares or other equity interests of each Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable; and Borrower
and each such Subsidiary owns beneficially and of record all the shares and
other interests it is listed as owning in Schedule 6.01(d) and all shares and
other interests for each of its wholly owned Subsidiaries, free and clear of any
Lien;
(e) OWNERSHIP INTERESTS. Borrower owns no interest in any Person other
than as permitted under Section 8.09;
<PAGE> 54
(f) FINANCIAL CONDITION.
(i) The Borrower has heretofore furnished to each Lender
audited consolidated balance sheets of the Borrower and its
Subsidiaries as at February 1, 1997 and the notes thereto and the
related consolidated statements of operations, cash flows, and changes
in stockholders' equity for the Fiscal Year then ended as examined and
certified by Coopers & Lybrand, L.L.P.. Except as set forth therein,
such financial statements (including the notes thereto) present fairly,
in all material respects, the financial condition of the Borrower and
its Subsidiaries as of the end of such Fiscal Year and results of their
operations and the changes in their stockholders' equity for the Fiscal
Year then ended, all in conformity with Generally Accepted Accounting
Principles applied on a Consistent Basis;
(ii) since the date of the financial statements referenced in
(i) above, there has been no material adverse change in the condition,
financial or otherwise, of the Borrower and its Subsidiaries taken as a
whole or in the businesses, properties and operations of the Borrower
and its Subsidiaries, considered as a whole, nor have such businesses
or properties, taken as a whole, been materially adversely affected as
a result of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo or act of God;
(iii) except as set forth in the financial statements referred
to in Section 6.01(f)(i) or in Schedule 6.01(f) or Schedule 6.01(j)
attached hereto, or as permitted under Section 8.06 hereof, neither
Borrower nor any Subsidiary has incurred, other than in the ordinary
course of business, any material indebtedness, obligations, commitments
or other liability contingent or otherwise which remain outstanding or
unsatisfied;
(g) TITLE TO PROPERTIES. The Borrower and its Subsidiaries have title
to all their respective owned real and personal properties, subject to no
transfer restrictions or Liens of any kind, except for (i) the transfer
restrictions and Liens described in Schedule 6.01(g) attached hereto, (ii)
transfer restrictions which could not individually or collectively reasonably be
expected to have a Material Adverse Effect, and (iii) Liens permitted under
Section 8.07 hereof;
(h) TAXES. Except as set forth in Schedule 6.01(h) attached hereto, the
Borrower and its Subsidiaries have filed or caused to be filed all federal,
state, local and foreign tax returns which are required to be filed by them and
except for taxes and assessments being contested as permitted under Section
7.04, have paid or caused to be paid all taxes as shown on said returns or on
any assessment received by them, to the extent that such taxes have become due;
(i) OTHER AGREEMENTS. Neither the Borrower nor any Subsidiary is
<PAGE> 55
(i) a party to any judgment, order, decree or any agreement
or instrument or subject to restrictions which could reasonably be
expected to have a Material Adverse Effect; or
(ii) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which the Borrower or any Subsidiary is a
party, which default has, or if not remedied within any applicable
grace period could reasonably be expected to have, a Material Adverse
Effect;
(j) LITIGATION. Except as set forth in Schedule 6.01(j) attached
hereto, there is no action, suit, litigation, investigation or proceeding at law
or in equity or by or before any Governmental Authority pending, including
without limitation matters pertaining to labor, employment, wages, hours,
occupational safety and taxation, or, to the knowledge of the Borrower,
threatened by or against the Borrower or any Subsidiary or affecting the
Borrower or any Subsidiary or any properties or rights of the Borrower or any
Subsidiary, an adverse ruling or determination in which could reasonably be
expected to have a Material Adverse Effect;
(k) MARGIN STOCK. Neither the Borrower nor any Subsidiary owns any
"margin stock" as such term is defined in Regulation U, as amended (12 C.F.R.
Part 221), of the Board. Neither the Borrower nor any agent acting in its behalf
has taken or will take any action which might cause this Agreement or any of the
documents or instruments delivered pursuant hereto to violate any regulation of
the Board or to violate the Securities Exchange Act of 1934, as amended, or the
Securities Act of 1933, as amended, or any state securities laws, in each case
as in effect on the date hereof;
(l) INVESTMENT COMPANY. Neither the Borrower nor any Subsidiary is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (15 U.S.C. ss. 80a-1, et seq.). The
application of the proceeds of the Loans and repayment thereof by the Borrower
and the performance by the Borrower of the transactions contemplated by this
Agreement will not violate any provision of said Act, or any rule, regulation or
order issued by the Securities and Exchange Commission thereunder, in each case
as amended from time to time;
(m) PATENTS, ETC. Except as set forth in Schedule 6.01(m) attached
hereto, the Borrower and its Subsidiaries own or have the right to use, under
valid license agreements or otherwise, all material patents, licenses,
franchises, trademarks, trademark rights, trade names, trade name rights, trade
secrets and copyrights necessary to the conduct of their businesses as now
conducted, without known conflict with any patent, license, franchise,
trademark, trade secrets and confidential commercial or proprietary information,
trade name, copyright, rights to trade secrets or other proprietary rights of
any other Person;
(n) NO UNTRUE STATEMENT. Neither this Agreement nor any other Loan
Document or certificate or document executed and delivered by or on behalf of
any Loan Party in accordance with or pursuant to any Loan Document contains any
misrepresentation or untrue
<PAGE> 56
statement of material fact or omits to state a material fact necessary, in light
of the circumstance under which it was made, in order to make any such
representation or statement contained therein not misleading in any material
respect;
(o) NO CONSENTS, ETC. Except as set forth in Schedule 6.01(o) attached
hereto, neither the respective businesses or properties of the Borrower or any
Subsidiary, nor any relationship between the Borrower or any Subsidiary and any
other Person, nor any circumstance in connection with the execution, delivery
and performance of the Loan Documents and the transactions contemplated hereby
is such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any Governmental Authority on the part of
the Borrower or any Subsidiary as a condition to the execution, delivery and
performance of, or consummation of the transactions contemplated by, this
Agreement or the other Loan Documents or if so, such consent, approval,
authorization, filing, registration or qualification has been obtained or
effected, as the case may be;
(p) BENEFIT PLANS.
(i) None of the employee benefit plans maintained at any
time by the Borrower or any Subsidiary or the trusts created thereunder
has engaged in a prohibited transaction or violated any Foreign Benefit
Law which could subject any such employee benefit plan or trust to a
material tax or penalty on prohibited transactions imposed under
Internal Revenue Code Section 4975 or ERISA or under any Foreign
Benefit Law;
(ii) None of the employee benefit plans maintained at any
time by the Borrower or any Subsidiary which are employee pension
benefit plans and which are subject to Title IV of ERISA or any Foreign
Benefit Law or the trusts created thereunder has been terminated so as
to result in a material liability of the Borrower under ERISA or under
any Foreign Benefit Law nor has any such employee benefit plan of the
Borrower or any Subsidiary incurred any material liability to the
Pension Benefit Guaranty Corporation established pursuant to ERISA or
any other Person exercising similar duties and functions under any
Foreign Benefit Law, other than for required insurance premiums which
have been paid or are not yet due and payable; neither the Borrower nor
any Subsidiary has withdrawn from or caused a partial withdrawal to
occur with respect to any Multi-employer Plan resulting in any material
assessed and unpaid withdrawal liability; the Borrower and the
Subsidiaries have made or provided for all contributions in all
material amounts to all such employee pension benefit plans which they
maintain and which are required as of the end of the most recent fiscal
year under each such plan; neither the Borrower nor any Subsidiary has
incurred any material accumulated funding deficiency with respect to
any such plan, whether or not waived; nor has there been any reportable
event, or other event or condition, which presents a material risk of
termination of any such employee benefit plan by such Pension Benefit
Guaranty Corporation or any other Person exercising similar duties and
functions under any Foreign Benefit Law;
(iii) The present value of all vested accrued benefits under
the employee pension benefit plans which are subject to Title IV of
ERISA or any Foreign Benefit
<PAGE> 57
Law, maintained by the Borrower or any Subsidiary, did not, as of the
most recent valuation date for each such plan, exceed by a material
amount the then current value of the assets of such employee benefit
plans allocable to such benefits;
(iv) To the knowledge of the Borrower based on its actual
knowledge and based on information, if any, that the Lenders may
provide to the Borrower from time to time, the consummation of the
Loans and the issuance of the Letters of Credit provided for in Article
II and Article III will not involve any prohibited transaction under
ERISA or any Foreign Benefit Law which is not subject to a statutory or
administrative exemption;
(v) To the best of the Borrower's knowledge, each employee
pension benefit plan subject to Title IV of ERISA or any Foreign
Benefit Law, maintained by the Borrower or any Subsidiary, has been
administered in accordance with its terms in all material respects and
is in compliance in all material respects with all applicable
requirements of ERISA and other applicable laws, regulations and rules
and any applicable Foreign Benefit Law;
(vi) There has been no material withdrawal liability
incurred and unpaid with respect to any
Multi-employer Plan to which the Borrower or any
Subsidiary is or was a contributor;
(vii) As used in this Agreement, the terms "employee
benefit plan," "employee pension benefit plan," "accumulated funding
deficiency," "reportable event," and "accrued benefits" shall have the
respective meanings assigned to them in ERISA, and the term "prohibited
transaction" shall have the meaning assigned to it in Code Section 4975
and ERISA;
(viii) Neither the Borrower nor any Subsidiary has any
liability not disclosed on any of the financial statements furnished to
the Lenders pursuant to Section 7.01 hereof, contingent or otherwise,
under any plan or program or the equivalent for unfunded
post-retirement benefits, including pension, medical and death
benefits, which liability could reasonably be expected to have a
Material Adverse Effect;
(q) NO DEFAULT. As of the date hereof, there does not exist any Default
or Event of Default hereunder;
(r) HAZARDOUS MATERIALS. Neither the Borrower nor any Subsidiary has
been notified of any material action, suit, proceeding or investigation which
calls into question compliance by the Borrower or any Subsidiary with any
Environmental Laws or which seeks to suspend, revoke or terminate any license,
permit or approval necessary for the generation, handling, storage, treatment or
disposal of any Hazardous Material in any material respect of the Borrower's
operations;
(s) RICO. Neither the Borrower nor any Subsidiary is engaged in or has
engaged in any course of conduct that could subject any of their respective
properties to any
<PAGE> 58
Lien, seizure or other forfeiture under any criminal law, racketeer influenced
and corrupt organizations law, civil or criminal, or other similar laws;
(t) COMPLIANCE WITH LAWS. The Borrower and each Subsidiary is in
compliance with all laws, rules and regulations, including without limitation,
all Environmental Laws, and all applicable laws, rules and regulations
pertaining to labor or employment matters, including without limitation those
pertaining to wages, hours, occupational safety and taxation and all other valid
requirements of any Governmental Authority with respect to the conduct of its
business, the noncompliance with which could reasonably be expected to have a
Material Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
Until this Agreement has been terminated in accordance with the terms
hereof, unless the Required Lenders shall otherwise consent in writing, the
Borrower will:
7.01 FINANCIAL REPORTS, ETC. (a) as soon as practical and in any event
within ninety-five (95) days after the end of each Fiscal Year of the Borrower,
deliver or cause to be delivered to the Agent and each Lender (i) the
consolidated balance sheets of the Borrower and its Subsidiaries, in each case
with the notes thereto, the related consolidated statements of operations, cash
flow, and shareholders' equity and the respective notes thereto for such Fiscal
Year, setting forth in the case of the consolidated statements comparative
financial statements for the preceding Fiscal Year, all prepared in accordance
with Generally Accepted Accounting Principles applied on a Consistent Basis and
containing, with respect to the consolidated financial reports, an opinion of
Coopers & Lybrand, L.L.P., or any other "Big 6" accounting firm or other such
independent certified public accountants of recognized national standing
selected by the Borrower and approved by the Agent, which is unqualified and
devoid of any exception which is not acceptable to the Required Lenders; and
(ii) a certificate of an Authorized Representative as to the existence or
non-existence of any Default or Event of Default, demonstrating compliance with
Sections 8.01, 8.02, 8.03, 8.04 and 8.05 of this Agreement as of the
Determination Date for which such covenant compliance is demonstrated, which
certificate shall be substantially in the form attached hereto as Exhibit J and
incorporated herein by reference;
(b) as soon as practical and in any event within fifty (50) days after
the end of each quarterly period of each Fiscal Year (except the last reporting
period of the Fiscal Year), or if an extension has been granted by the
Securities and Exchange Commission for the filing by the Borrower of its
quarterly report on Form 10-Q, then by the earlier of the date such Form 10-Q is
actually filed and the last day of such extended time period, but in no event
later than sixty (60) days after the end of such quarterly period for which such
Form 10-Q is to be filed, deliver to the Agent and each Lender (i) the
consolidated balance sheets of the Borrower and its Subsidiaries, in each case
as of the end of such reporting period, the related consolidated statements of
operations and cash flow for such reporting period and for the period from the
beginning of the Fiscal Year through the end of such reporting period,
accompanied by a certificate of an Authorized Representative to the effect that
such financial statements present
<PAGE> 59
fairly, in all material respects, the financial position of the Borrower and
its Subsidiaries as of the end of such reporting period and the results of
their operations and the changes in their financial position for such reporting
period, all of such interim financial statements being prepared on a
consolidated basis in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis, subject to normal year-end audit adjustments,
and (ii) a certificate of an Authorized Representative as to the existence or
non-existence of any Default or Event of Default and containing computations
for such quarter comparable to that required pursuant to Section 7.01(a)(ii);
(c) together with each delivery of the financial statements required by
Section 7.01(a)(i) hereof, deliver to the Agent and each Lender a letter from
the Borrower's accountants specified in Section 7.01(a)(i) hereof stating that
in performing the audit necessary to render an opinion on the financial
statements delivered under Section 7.01(a)(i), they obtained no knowledge of any
Default or Event of Default by the Borrower in the fulfillment of the terms and
provisions of this Agreement insofar as they relate to financial matters (which
at the date of such statement remains uncured); and if the accountants have
obtained knowledge of such Default or Event of Default, a statement specifying
the nature and period of existence thereof;
(d) as soon as practical and in any event within fifteen (15) days
following the last day of each month of the Borrower's Fiscal Year, a
certificate as to the Borrowing Base substantially in the form attached hereto
as Exhibit K and incorporated herein by reference (a "Borrowing Base
Certificate") certified by an Authorized Representative to be true, accurate and
complete with respect to the information set forth therein showing the
calculation of the Borrowing Base as at the last day of the preceding month of
the Borrower's Fiscal Year;
(e) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Borrower or any
Subsidiary shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, and (ii) any proxy statement
distributed by the Borrower to its shareholders, bondholders or the financial
community in general; and
(f) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding Borrower's and each
Subsidiary's operations, business affairs and financial condition as the Agent
or such Lender may reasonably request.
7.02 MAINTAIN PROPERTIES. Maintain all properties necessary to its
operations in good working order and condition (ordinary wear and tear excepted)
and make all needed repairs, replacements and renewals as are necessary to
conduct its business in accordance with customary business practices.
7.03 EXISTENCE, QUALIFICATION, ETC. Do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all
material rights and franchises, trade names, trademarks and permits, except to
the extent conveyed in connection with a transaction permitted under Section
8.08 hereof, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership
<PAGE> 60
or lease of property or the nature of its business makes such license
or qualification necessary and in which the failure so to qualify could
reasonably be expected to have a Material Adverse Effect.
7.04 TAXES. Pay all taxes, assessments, governmental charges, claims
for labor, supplies, rent and any other obligation which, if unpaid, might
become a Lien against any of its properties except any of the foregoing being
contested in good faith by appropriate proceedings diligently conducted and
against which reserves sufficient under GAAP have been established.
7.05 INSURANCE. (i) Maintain insurance with responsible insurance
carriers against loss or damage by fire and other hazards as are customarily
insured against by similar businesses owning such properties similarly situated,
(ii) maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property having such limits, deductibles, exclusions and co-insurance and other
provisions providing no less coverage than insurance customarily carried by
similar businesses owning similar properties and conducting similar operations,
and (iii) maintain insurance under all applicable workers' compensation laws (or
in the alternative, maintain required reserves if self-insured for workers'
compensation purposes).
7.06 TRUE BOOKS. Keep true books of record and account in which full
and correct entries will be made of all financial transactions and its assets
and business in compliance with Generally Accepted Accounting Principles.
7.07 RIGHT OF INSPECTION. Permit any Lender or the Agent (through their
employees and other agents), at the expense of such Lender or the Agent, as
applicable, or at the expense of the Borrower if a Default has occurred and is
continuing, to visit and inspect any of the properties, corporate books and
financial reports of the Borrower and its Subsidiaries, and to discuss their
respective affairs, finances and accounts with their principal officers and
independent certified public accountants, all at reasonable times, at reasonable
intervals and with reasonable prior notice.
7.08 OBSERVE ALL LAWS. Comply in all material respects with all laws,
rules and regulations and all other valid requirements of any Governmental
Authority with respect to the conduct of its business, including without
limitation Environmental Laws, the noncompliance with which could reasonably be
expected to have a Material Adverse Effect.
7.09 COVENANTS EXTENDING TO SUBSIDIARIES. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 7.02 through 7.08, inclusive.
7.10 OFFICER'S KNOWLEDGE OF DEFAULT. Upon any Authorized Representative
of the Borrower obtaining knowledge of any Default or Event of Default hereunder
or under any other obligation of the Borrower or any Subsidiary, promptly notify
the Agent of the nature thereof, the period of existence thereof, and what
action the Borrower proposes to take with respect thereto and stating that such
notice is a "notice of default."
<PAGE> 61
7.11 SUITS OR OTHER PROCEEDINGS. Upon any Authorized Representative of
the Borrower obtaining knowledge of any litigation or other proceeding being
instituted against the Borrower or any Subsidiary, or any attachment, levy,
execution or other process being instituted against any assets of the Borrower
or any Subsidiary, in an aggregate amount greater than $2,500,000 not otherwise
covered by insurance, promptly deliver to the Agent written notice thereof
stating the nature and status of such litigation, proceeding, levy, execution or
other process.
7.12 NOTICE OF DISCHARGE OF HAZARDOUS MATERIAL OR ENVIRONMENTAL
COMPLAINT. Promptly provide to the Agent true, accurate and complete copies of
any and all written notices, complaints, orders, directives, claims, or
citations received by the Borrower or any Subsidiary relating to any material
(a) violation or alleged violation by the Borrower or any Subsidiary of any
applicable Environmental Laws; (b) release or threatened release by the Borrower
or any Subsidiary of any Hazardous Material, except where occurring legally; or
(c) liability or alleged liability of the Borrower or any Subsidiary for the
costs of cleaning up, removing, remediating or responding to a release of
Hazardous Materials.
7.13 ENVIRONMENTAL COMPLIANCE. If the Borrower or any Subsidiary shall
receive notice from any Governmental Authority that the Borrower or any
Subsidiary has violated any applicable Environmental Law, the violation of which
could reasonably be expected to result in a Material Adverse Effect and for
which the Borrower or a Subsidiary is responsible for remedying such violation,
the Borrower shall promptly (and in any event within the time period permitted
by the applicable Governmental Authority) remedy, or cause the applicable
Subsidiary to remedy, such violation.
7.14 INDEMNIFICATION. The Borrower hereby agrees to defend, indemnify
and hold the Agent and the Lenders, and their respective officers, directors,
employees and agents, harmless from and against any and all claims, losses,
liabilities, damages and expenses (including, without limitation, cleanup costs
and reasonable attorneys' fees) arising directly or indirectly from, out of or
by reason of the handling, storage, treatment, emission or disposal of any
Hazardous Material by or in respect of the Borrower or any Subsidiary or
property owned or leased or operated by the Borrower or any Subsidiary. The
provisions of this Section 7.14 shall survive repayment of the Obligations,
occurrence of the Revolving Credit Termination Date and expiration or
termination of this Agreement.
7.15 FURTHER ASSURANCES. At its cost and expense, upon request of the
Agent, duly execute and deliver or cause another Loan Party to duly execute and
deliver, to the Agent such further instruments, documents, certificates, and
agreements, and do and cause another Loan Party to do such further acts that may
be reasonably necessary or advisable in the reasonable opinion of the Agent to
carry out the provisions and purposes of this Agreement and the other Loan
Documents.
7.16 BENEFIT PLANS. Comply in all material respects with all
requirements of ERISA and any Foreign Benefit Law applicable to it and furnish
to the Agent as soon as possible and in any event (i) within thirty (30) days
after the Borrower knows or has reason to know that any reportable event or
other event under any Foreign Benefit Law with respect to any
<PAGE> 62
employee benefit plan maintained by the Borrower or any Subsidiary which could
give rise to termination or the imposition of any material tax or penalty has
occurred, written statement of an Authorized Representative describing in
reasonable detail such reportable event or such other event and any action which
the Borrower or applicable Subsidiary proposes to take with respect thereto,
together with a copy of the notice of such reportable event given to the Pension
Benefit Guaranty Corporation or to any other applicable Person exercising
similar duties and functions under any Foreign Benefit Law or a statement that
said notice will be filed with the annual report of the United States Department
of Labor with respect to such plan if such filing has been authorized, (ii)
promptly after receipt thereof, a copy of any notice that the Borrower or any
Subsidiary may receive from the Pension Benefit Guaranty Corporation or from any
other Person exercising similar duties and functions under any Foreign Benefit
Law relating to the intention of the Pension Benefit Guaranty Corporation or any
such Person to terminate any employee benefit plan or plans of the Borrower or
any Subsidiary or to appoint a trustee to administer any such plan, (iii) within
10 days after a filing with the Pension Benefit Guaranty Corporation pursuant to
Section 412(n) of the Code or with any Person pursuant to any Foreign Benefit
Law of a notice of failure to make a required installment or other payment with
respect to a plan, a certificate of an Authorized Representative setting forth
details as to such failure and the action that the Borrower or its affected
Subsidiary, as applicable, proposes to take with respect thereto, together with
a copy of such notice given to the Pension Benefit Guaranty Corporation or to
such Person, and (iv) promptly after the incurrence thereof and in any event
within 10 days, notice of withdrawal by the Borrower or any Subsidiary from any
Multi-employer Plan which withdrawal could reasonably result in a material
withdrawal liability.
7.17 CONTINUED OPERATIONS. Continue at all times (i) to conduct its
business and engage principally in the same or complementary line or lines of
business substantially as heretofore conducted (subject to the right to dispose
of assets in transactions permitted under Section 8.08 hereof) and (ii) preserve
and protect its material patents, copyrights, licenses, trademarks, trademark
rights, trade names, trade name rights, trade secrets and know-how necessary or
useful in the conduct of its operations.
7.18 NEW SUBSIDIARIES.
(a) No later than forty-five (45) Business Days following the
acquisition or creation of any Subsidiary (other than a Foreign Subsidiary), or
upon any previously existing Person becoming a Subsidiary other than a Foreign
Subsidiary, cause to be delivered to the Agent for the benefit of the Lenders
each of the following:
(i) a Guaranty executed by such Subsidiary, with appropriate
insertions of identifying information and such other changes to which
the Agent may consent in its discretion;
(ii) an opinion of counsel to such Subsidiary dated as of the
date of delivery of the Guaranty provided in the foregoing clause (i)
and addressed to the Agent and the Lenders, in form and substance
substantially similar to the opinions of counsel to the Guarantors
delivered on the Closing Date to the Lenders pursuant to Section 5.01
hereof; and
<PAGE> 63
(iii) current copies of the charter or other organizational
documents and bylaws, if any, of such Subsidiary, minutes of duly
called and conducted meetings (or duly effected consent actions) of the
Board of Directors (or other comparable group of individuals performing
a similar function), or appropriate committees thereof (and, if
required by such charter or other organizational documents, bylaws or
by applicable laws, of the shareholders) of such Subsidiary authorizing
the actions and the execution and delivery of documents described in
clause (i) of this Section 7.18 and evidence satisfactory to the Agent
(confirmation of the receipt of which will be provided by the Agent to
the Lenders) that such Subsidiary is Solvent as of such date and after
giving effect to the Guaranty.
(b) Not later than forty-five (45) Business Days following the
acquisition or creation of a Foreign Subsidiary which is a Material Subsidiary,
or upon any previously existing Person becoming a Foreign Subsidiary which is a
Material Subsidiary, cause to be delivered to the Agent for the benefit of the
Lenders each of the following:
(i) a pledge agreement to be entered into by the Borrower or
Subsidiary owning any or all of the capital stock or other ownership
interest of such Foreign Subsidiary (the "Pledgor") in form and
substance acceptable to the Agent pledging 65% of all such capital
stock or ownership interests (the "Pledged Stock");
(ii) the certificates evidencing the Pledged Stock together
with duly executed stock powers or powers of assignment in blank
affixed thereto;
(iii) an opinion of counsel to the Pledgor dated as of the
date of delivery of the pledge agreement provided in the foregoing
clause (i) and addressed to the Agent and the Lenders as to matters
regarding the enforceability of such pledge agreement and the status of
such Pledged Stock in form and substance acceptable to the Agent; and
(iv) the items referred to in (a)(iii) above with respect to
the Pledgor.
<PAGE> 64
ARTICLE VIII
NEGATIVE COVENANTS
Until this Agreement has been terminated in accordance with the terms
hereof, unless the Required Lenders shall otherwise consent in writing, the
Borrower will not, nor will it permit any Subsidiary to:
8.01 CONSOLIDATED NET WORTH. Permit Consolidated Net Worth at any time
to be less than (A) $486,000,000 plus (B) an amount equal to one hundred percent
(100%) of the Net Proceeds of each sale of capital stock or other equity
interest (including those instruments and securities exchangeable, convertible
or exercisable into capital stock or other equity interests at such time as such
instruments are recognizable in Consolidated Net Worth in accordance with GAAP)
in the Borrower or any Subsidiary since February 1, 1997 plus (C) an amount
equal to the sum of fifty percent (50%) of Consolidated Net Income of the
Borrower and its Subsidiaries (without deduction for any negative Consolidated
Net Income) for each full fiscal quarter ending after February 1, 1997.
8.02 CONSOLIDATED FUNDED SENIOR INDEBTEDNESS TO CONSOLIDATED EBITDA.
Permit at any time the ratio of Consolidated Funded Senior Indebtedness to
Consolidated EBITDA for the Four-Quarter Period most recently ended to be
greater than 3.50 to 1.00.
8.03 CONSOLIDATED FIXED CHARGE RATIO. Permit, at any time during any
Four-Quarter Period of the Borrower, the Consolidated Fixed Charge Ratio for
such Four-Quarter Period to be equal to or less than 1.25 to 1.00 until Fiscal
Year End 1997 and 1.50 to 1.00 thereafter.
8.04 CAPITAL EXPENDITURES. Make or become committed to make in the
aggregate during any Fiscal Year Capital Expenditures greater than $125,000,000
for each of Fiscal Year 1997 and Fiscal Year 1998 and $150,000,000 thereafter;
provided however, such determination shall be made on a cumulative basis, with
the effect that amounts not expended in any Fiscal Year may be carried forward
and expended in a subsequent Fiscal Year.
8.05 CONSOLIDATED FUNDED TOTAL INDEBTEDNESS TO CONSOLIDATED EBITDA.
Permit at any time the ratio of Consolidated Funded Total Indebtedness to
Consolidated EBITDA for the Four-Quarter Period most recently ended to be
greater than 4.00 to 1.00.
8.06 INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except
(i) All Indebtedness existing as of the date hereof and set
forth in Schedule 8.06 attached hereto and incorporated herein by
reference and any extension, renewal or refinancing thereof that does
not increase the principal amount thereof from that existing
immediately prior to such extension, renewal or refinancing; and that
does not result in an interest rate which is greater than the market
rate generally available to companies similarly situated to the
Borrower for similar transactions; provided, none
<PAGE> 65
of the instruments and agreements evidencing or governing such
Indebtedness shall be amended, modified or supplemented after the
Closing Date to change any terms of repayment, subordination,
restrictions against incurring Liens or Indebtedness, rights of
conversion, put or exchange, mandatory prepayment, reduction in
commitment or addition of or adverse change in any borrowing base with
respect to such Indebtedness from such terms and rights as in effect on
the Closing Date unless such amendments, modifications or supplements
would not reasonably be expected to have an adverse effect on the
Borrower, or its creditworthiness with respect to its Obligations;
(ii) Indebtedness owing to the Agent or any Lenders in
connection with this Agreement, any Note or other Loan Document;
(iii) Indebtedness consisting of Rate Hedging Obligations
permitted under Section 8.15 hereof;
(iv) The endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of
business;
(v) Indebtedness incurred directly by the Borrower or any
Subsidiary exclusively to finance machinery, equipment and other fixed
assets purchased after the Closing Date and Indebtedness incurred after
the Closing Date and secured by the Borrower's or any Subsidiary's real
property, provided that such Indebtedness (i) is secured, if at all,
solely by a Lien permitted in accordance with Sections 8.07(iii) or
(vii) hereof, (ii) shall not be refinanced for a principal amount in
excess of the principal balance outstanding thereon at the time of such
refinancing and (iii) does not in the aggregate for the Borrower and
all Subsidiaries exceed the principal amount of $80,000,000 incurred
during any consecutive twelve month period;
(vi) Indebtedness of any Subsidiary owing to the Borrower
or another Subsidiary and Indebtedness of the Borrower owing to any
Subsidiary;
(vii) Additional Indebtedness, including without limitation
Indebtedness related to commercial and documentary letters of credit,
standby letters of credit, or otherwise, in the aggregate amount
outstanding of the Borrower and all Subsidiaries at any time (as
determined by the face amount of such obligations where applicable) not
to exceed $150,000,000: and
(viii) Any guaranty of Indebtedness of another Loan Party
which is permitted to be incurred pursuant to this Section 8.06.
Notwithstanding the foregoing, neither the Borrower nor any of its Subsidiaries
shall incur or allow to exist any Indebtedness which qualifies as Significant
Senior Indebtedness, Parent Senior Indebtedness or Significant Parent Senior
Indebtedness under the Parisian Indenture unless each lender or creditor of such
Significant Senior Indebtedness, Parent Senior Indebtedness or Significant
Senior Indebtedness, as applicable, agrees in the instrument creating,
evidencing or governing such Significant Senior Indebtedness, Parent Senior
Indebtedness or Parent Senior Indebtedness, as applicable, not to deliver any
notice under
<PAGE> 66
either Section 10.2(b)(ii)(B) or Section 14.2(b)(ii)(B) of the Parisian
Indenture without the prior written consent of the Agent and acknowledges in
such instrument that the Lenders are relying on, are third-party beneficiaries
of, and may directly enforce, such agreement.
8.07 LIENS. Incur, create or permit to exist any Lien with respect
to any property or assets now owned or hereafter acquired by the Borrower or
any of its Subsidiaries, other than
(i) Liens existing as of the date hereof and as set forth in
Schedule 6.01(g) attached Hereto;
(ii) Liens imposed by law for taxes, assessments or charges
of any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Generally Accepted
Accounting Principles;
(iii) Liens in respect of purchase money Indebtedness in
connection with the acquisition of certain property permitted to be
incurred pursuant to Section 8.06(v) hereof; provided that (a) the
original principal balance of the Indebtedness secured by such Lien
constitutes not less than 75% and not more than 100% of the purchase
price of the property acquired and (b) such Lien extends only to the
property acquired with the proceeds of the indebtedness so secured;
(iv) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
120 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Generally Accepted Accounting Principles;
(v) Liens incurred or deposits made in the ordinary course
of business (including, without limitation, surety bonds and appeal
bonds) in connection with workers' compensation, unemployment insurance
and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under
government contracts;
(vi) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which
do not interfere materially with the ordinary conduct of the business
of the Borrower or any Subsidiary and which do not materially detract
from the value of the property to which they attach or materially
impair the use thereof by the Borrower or any Subsidiary;
<PAGE> 67
(vii) Liens on real property securing Indebtedness permitted
under Section 8.06(v) hereof; provided, however, that the real property
securing such Indebtedness permitted under Section 8.06(v) hereof, if
such Indebtedness is in a principal amount of $5,000,000 or more, must
be appraised in connection with the incurrence of such Indebtedness and
such appraisal value shall not be less than an amount equal to 133% of
the principal amount of such Indebtedness; and
(viii) Liens on specific items of inventory of the Borrower or
any Subsidiary granted to secure reimbursement obligations incurred
with respect to documentary letters of credit issued in connection with
the purchase of such inventory; provided such liens at all times remain
unperfected and no such lien attaches to inventory not acquired with
the credit support of such documentary letter of credit.
8.08 TRANSFER OF ASSETS. Other than as permitted in Section 8.10
hereof, sell, lease, transfer or otherwise dispose of any assets of the Borrower
or any Subsidiary during any Fiscal Year, other than assets sold in the ordinary
course of business and accounts receivable transferred to a Securitization
Subsidiary, which have an aggregate book value in excess of ten percent (10%) of
the book value of the Consolidated Total Assets as at the last day of the
immediately preceding Fiscal Year; provided, however, such determination shall
be made on a noncumulative basis, with the effect that the amount of assets not
disposed of in one Fiscal Year may not be carried forward and disposed of in a
subsequent Fiscal Year.
8.09 INVESTMENTS; ACQUISITIONS. Purchase, own, invest in or otherwise
acquire, directly or indirectly, any stock or other securities of, or all or
substantially all of the assets of, or make or permit to exist any interest
whatsoever in, any other Person or otherwise make any Acquisition or permit to
exist any loans or advances to any Person, except that Borrower and its
Subsidiaries may maintain investments or invest in
(i) Eligible Securities;
(ii) investments existing as of the date hereof; such
investments having a book value equal to or greater than $100,000 are
set forth in Schedule 6.01(d) attached hereto;
(iii) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(iv) loans and advances to and investments in Subsidiaries
who are Guarantors;
(v) loans and advances to its officers, directors and
employees for travel expenses incurred in the ordinary course of
business without limitation and for any other business purpose in an
aggregate principal amount at any time outstanding not to exceed
$7,500,000;
<PAGE> 68
(vi) other investments in an aggregate principal amount at
any time outstanding not to exceed 5% of Consolidated Net Worth;
(vii) Permitted Acquisitions and other mergers permitted in
Section 8.10 hereof; and
(viii) Securitization Subsidiaries of the Borrower in an
aggregate amount not to exceed 10% of Consolidated Net Worth; provided
further, investments made in Securitization Subsidiaries on or prior to
the date hereof and the retained earnings of Securitization
Subsidiaries as of the date hereof and subsequent thereto may be
transferred between Securitization Subsidiaries or between the Borrower
and a Securitization Subsidiary without limitation.
8.10 MERGER OR CONSOLIDATION. Consolidate with or merge into any other
Person, or permit any other Person to merge into it, or sell, transfer or lease
or otherwise dispose of all or a substantial part of its assets (other than
sales in the ordinary course of business); provided, however, (i) any Subsidiary
of the Borrower may merge or transfer all or any part of its assets into or
consolidate with the Borrower or any Subsidiary wholly owned by the Borrower,
(ii) any Subsidiary may merge into another Person whereby such other Person is
the surviving corporation provided that if such other Person would not be a
Subsidiary after giving effect to such merger, such other Person complies with
all the requirements of Section 7.18 as if it is a newly acquired Subsidiary and
that such merger would be a Permitted Acquisition but for the Subsidiary not
being the surviving corporation and (iii) in connection with any Permited
Acquisition, any Person may merge with the Borrower or any Subsidiary wholly
owned by the Borrower if the Borrower or such wholly owned Subsidiary, as
applicable, shall be the surviving corporation.
8.11 TRANSACTIONS WITH AFFILIATES. Other than transactions permitted
under Section 8.09 hereof, enter into any transaction (or series of related
transactions) after the Closing Date, with, or for the benefit of, any Affiliate
of the Borrower or any officer or director of the Borrower or any Subsidiary
(each, an "Affiliate Transaction"), unless (i) (A) such Affiliate Transaction is
in the ordinary course of and pursuant to the reasonable requirements of the
Borrower's or any Subsidiary's business and is on terms that are no less
favorable to the Borrower or the Subsidiary, as the case may be, than those
which could have been obtained in a comparable transaction at such time from
Persons who do not have such a relationship and are engaged in same or similar
transactions in the ordinary course of their business and (B) with respect to
any Affiliate Transaction or series of Affiliate Transactions involving
aggregate payments or value equal to or greater than $5,000,000, the Borrower
shall have delivered a certificate of an Authorized Representative to the Agent
certifying that such Affiliate Transaction or series of related Affiliate
Transactions complies with the preceding clause (i)(A) and, with respect to any
Affiliate Transaction or series of Affiliate Transactions involving aggregate
payments or value equal to or greater than $10,000,000, further certifying that
such Affiliate Transaction or series of Affiliate Transactions has been approved
by a majority of the Board of Directors of the Borrower, including a majority of
the disinterested directors of the Board of Directors of the Borrower or (ii)
such Affiliate Transaction is with a wholly owned Subsidiary (other than a
Foreign Subsidiary) of the Borrower.
<PAGE> 69
8.12 BENEFIT PLANS. With respect to all employee pension benefit plans
maintained by the Borrower or any Subsidiary:
(i) terminate any of such employee pension benefit plans
so as to incur any material liability to the Pension
Benefit Guaranty Corporation established pursuant to
ERISA or to any other Person exercising similar
duties and functions under any Foreign Benefit Law;
(ii) allow or suffer to exist any prohibited transaction
involving any of such employee pension benefit plans or any trust
created thereunder which would subject the Borrower or a Subsidiary to
a material tax or material penalty or other material liability (a) on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA or (b) under any Foreign Benefit Law;
(iii) fail to pay to any such employee pension benefit plan
any material contribution which it is obligated to pay under the terms
of such plan;
(iv) allow or suffer to exist any material accumulated
funding deficiency, whether or not waived, with respect to any such
employee pension benefit plan;
(v) allow or suffer to exist any occurrence of a reportable
event or any other event or condition, which presents a material risk
of termination by the Pension Benefit Guaranty Corporation, or to any
other Person exercising similar duties and functions under any Foreign
Benefit Law, of any such employee pension benefit plan that is a Single
Employer Plan, which termination could result in any material liability
(a) to the Pension Benefit Guaranty Corporation or (b) under any
Foreign Benefit Law; or
(vi) incur any material withdrawal liability with respect to
any Multi-employer Plan.
8.13 FISCAL YEAR. Change its Fiscal Year.
8.14 DISSOLUTION, ETC. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into the Borrower pursuant to
Section 8.10.
8.15 RATE HEDGING OBLIGATIONS. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except in an aggregate notional amount not to exceed the
Total Revolving Credit Commitment at any time and in no event shall any Rate
Hedging Obligation be incurred for speculative purposes.
8.16 NEGATIVE PLEDGE CLAUSES. Enter into any agreement with any Person,
other than the Agent and the Lenders pursuant to this Agreement, which prohibits
or limits the
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ability of the Borrower or any Subsidiary to create, incur, assume or suffer to
exist any Lien, upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for (i) agreements creating Liens permitted by
Section 8.07 hereof which prohibit Liens upon, but only upon, the property
subject to such Lien, (ii) the Parisian Indenture and the Senior Indenture
pursuant to which the Borrower issued its Senior Notes in the aggregate
principal amount of $125,000,000, (iii) agreements governing Indebtedness for
Borrowed Money incurred pursuant to Section 8.06(vii) hereof and (iv) accounts
receivable and assets directly related thereto of the Borrower and any
Subsidiary which are subject to accounts receivable securitizations transacted
in the ordinary course of business and consistent with past practice of the
Borrower or any Subsidiary; provided, however, in no event shall the Borrower or
any Subsidiary be prohibited or limited from incurring any Lien on inventory.
<PAGE> 71
ARTICLE IX
EVENTS OF DEFAULT AND ACCELERATION
9.01 EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment of the
principal of any Loan or Reimbursement Obligation, when and as the same shall be
due and payable whether pursuant to any provision of Article II or Article III
hereof, at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of any
amount of interest on any Loan or of any fees for other amounts payable to the
Lenders, the Agent or NationsBank under the Loan Documents on the date on which
the same shall be due and payable; or
(c) if default shall be made in the performance or observance of any
covenant set forth in Sections 7.07, 7.10, 7.18 or Article VIII hereof; or
(d) if a default shall be made in the performance or observance of, or
shall occur under, any covenant, agreement or provision contained in this
Agreement or the Notes (other than as described in clauses (a), (b) or (c)
above) and such default shall continue for thirty (30) or more days after the
earlier of receipt of notice of such default by the Authorized Representative
from the Agent or the Borrower becomes aware of such default, or if a default
shall be made in the performance or observance of, or shall occur under, any
covenant, agreement or provision contained in any of the other Loan Documents
(beyond any applicable grace period, if any, contained therein) or in any
instrument or document evidencing or creating any obligation, guaranty, or Lien
in favor of the Agent or the Lenders or delivered to the Agent or the Lenders in
connection with or pursuant to this Agreement or any of the Obligations, or if
any Loan Document ceases to be in full force and effect (other than in
accordance with its terms in the absence of default or by reason of any action
by the Agent or any Lender), or if without the written consent of the Agent and
the Lenders, this Agreement or any other Loan Document shall be disaffirmed or
shall terminate, be terminable or be terminated or become void or unenforceable
for any reason whatsoever (other than in accordance with its terms in the
absence of default or by reason of any action by the Agent or any Lender); or
(e) (i) if a default shall occur, which is not waived, (A) in the
payment of any principal, interest, premium or other amounts with respect to any
Indebtedness for Money Borrowed (other than the Loans) or Rate Hedging
Obligations of the Borrower or of any Subsidiary which Indebtedness is in an
amount (which amount for Rate Hedging Obligations shall be equal to the market
exposure thereunder on the date of default) not less than $10,000,000 in the
aggregate outstanding and includes without limitation any of the
<PAGE> 72
Consolidated Subordinated Debt and the Senior Notes, and such default shall
continue for more than the period of grace, if any, therein specified or (B) in
the performance, observance or fulfillment of any term or covenant contained in
any agreement or instrument under or pursuant to which any such Indebtedness for
Money Borrowed, including without limitation any of the Consolidated
Subordinated Debt and the Senior Notes or Rate Hedging Obligations, may have
been issued, created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, and as a result of such default the holder of any such Indebtedness,
including without limitation any of the Consolidated Subordinated Debt and the
Senior Notes, may accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact by the
Borrower or any Guarantor contained herein or any other Loan Document or in any
writing, certificate, report or statement at any time furnished to the Agent or
any Lender by or on behalf of the Borrower or any Guarantor pursuant to or in
connection with this Agreement or the other Loan Documents, or otherwise, shall
be false or misleading in any material respect when given or made or deemed
given or made; or
(g) if the Borrower or any Material Subsidiary shall be unable to pay
its debts generally as they become due; file a petition to take advantage of any
insolvency, reorganization, bankruptcy, receivership or similar law, domestic or
foreign; make an assignment for the benefit of its creditors; commence a
proceeding for the appointment of a receiver, trustee, liquidator or conservator
of itself or of the whole or any substantial part of its property; file a
petition or answer seeking reorganization or arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or statute, federal,
state or foreign; or
(h) if a court of competent jurisdiction shall enter an order, judgment
or decree appointing a custodian, receiver, trustee, liquidator or conservator
of the Borrower or any Material Subsidiary or of the whole or any substantial
part of its properties and such order, judgment or decree continues unstayed and
in effect for a period of sixty (60) days, or approve a petition filed against
the Borrower or any Material Subsidiary seeking reorganization or arrangement or
similar relief under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state or foreign country,
province or other political subdivision, which petition is not dismissed within
sixty (60) days; or if, under the provisions of any other law for the relief or
aid of debtors, a court of competent jurisdiction shall assume custody or
control of the Borrower or any Material Subsidiary or of the whole or any
substantial part of its properties, which control is not relinquished within
sixty (60) days; or if there is commenced against the Borrower or any Material
Subsidiary any proceeding or petition seeking reorganization, arrangement or
similar relief under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state or foreign country,
province or other political subdivision which proceeding or petition remains
undismissed for a period of sixty (60) days; or if the Borrower or any Material
Subsidiary takes any action to indicate its consent to or approval of any such
proceeding or petition; or
(i) if (i) any judgment where the amount not covered by insurance (or
the amount as to which the insurer denies liability) is in excess of $10,000,000
is rendered against the
<PAGE> 73
Borrower or any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or any Subsidiary's properties for any
amount in excess of $1,000,000, and such judgment, attachment, injunction or
execution remains unpaid, unstayed, undischarged, unbonded or undismissed for a
period of sixty (60) days; or
(j) if the Borrower or any Material Subsidiary shall, other than as
permitted under Section 8.08 hereof or in the ordinary course of business (as
determined by past practices), suspend (other than for a period not to exceed
twenty (20) days by reason of force majeure) all or any part of its operations
material to the conduct of the business of the Borrower or such Material
Subsidiary, taken as a whole; or
(k) if (i) the Borrower or any Subsidiary shall engage in any
prohibited transaction (as described in Section 8.12(ii) hereof), which is not
subject to a statutory or administrative exemption, involving any employee
pension benefit plan of the Borrower or any Subsidiary and thereby incur any
material tax, material penalty or other material liability, (ii) any material
accumulated funding deficiency (as referred to in Section 8.12(iv) hereof),
whether or not waived, shall exist with respect to any Single Employer Plan,
(iii) a reportable event (as referred to in Section 8.12(v) hereof) (other than
a reportable event for which the statutory notice requirement to the Pension
Benefit Guaranty Corporation has been waived by regulation) shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed to administer or to terminate, any Single Employer
Plan, which reportable event or institution or proceedings is, in the reasonable
opinion of the Required Lenders, likely to result in the termination of such
Single Employer Plan for purposes of Title IV of ERISA, and in the case of such
a reportable event, the continuance of such reportable event shall be unremedied
for sixty (60) days after notice of such reportable event pursuant to Section
4043(a), (c) or (d) of ERISA is given, as the case may be, and shall result in
the incurrence of a material liability to any Governmental Authority (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, and such
termination results in a material liability of the Borrower or any Subsidiary to
such Single Employer Plan or the Pension Benefit Guaranty Corporation, or (v)
the Borrower or any Subsidiary shall withdraw from a Multi-employer Plan for
purposes of Title IV of ERISA, and, as a result of any such withdrawal, the
Borrower or any Subsidiary shall incur a material withdrawal liability to such
Multi-employer Plan; or
(l) if there shall occur any "Event of Default" as defined in any of
the Loan Documents; or
(m) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) (except for the Proffitt's Inc. 401(k) Retirement Plan) is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
except that a Person will be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time or the occurrence of
an event or condition, directly or indirectly, of more than 20% of the total
voting power of the then outstanding voting capital stock of the Borrower;
<PAGE> 74
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent may, and at the direction of the Required
Lenders shall, declare any obligation of the Lenders to make
further Loans or issue Letters of Credit terminated, whereupon
the obligation of each Lender to make further Loans or issue
Letters of Credit, hereunder shall terminate immediately, and
(ii) the Agent shall at the direction of the Required Lenders,
at their option, declare by notice to the Borrower any or all
of the Obligations to be immediately due and payable, and the
same, including all interest accrued thereon and all other
obligations of the Borrower to the Agent and the Lenders,
shall forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; provided,
however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to lend and issue Letters of Credit
hereunder shall automatically terminate and automatically any
and all of the Obligations shall be immediately due and
payable without the necessity of any action by the Agent or
the Required Lenders or notice by the Agent or the Lenders or
to the Borrower or any other Person;
(B) The Borrower shall, upon demand of the Agent
acting on the direction of the Required Lenders, and
automatically upon the occurrence of an Event of Default under
clause (g) or (h) above, deposit cash with the Agent in an
amount equal to the amount of any outstanding Letters of
Credit remaining undrawn or unpaid, as collateral security
pursuant to the LC Account Agreement for the repayment of any
future drawings or payments under such Letters of Credit; and
(C) the Agent and the Lenders shall have all of the
rights and remedies available under the Loan Documents or
under any applicable law.
9.02 AGENT TO ACT. In case any one or more Events of Default shall
occur and not have been waived, the Agent shall, at the direction of the
Required Lenders, proceed to protect and enforce their rights or remedies either
by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
9.03 CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
<PAGE> 75
9.04 NO WAIVER. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
9.05 ALLOCATION OF PROCEEDS. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder shall be applied by the Agent in the following order:
(i) amounts due to NationsBank and the Lenders pursuant to
Sections 2.11, 3.02(f), 3.03(i), 7.14, 11.06 and 11.11 hereof;
(ii) amounts due to (A) NationsBank pursuant to Sections
3.03(ii) and 3.04 hereof, and (B) to NationsBank and/or the Agent
pursuant to Section 2.14 hereof;
(iii) payments of interest on Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(iv) payments of principal on Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(v) payment of cash amounts to the Agent in respect of
Outstanding Letters of Credit pursuant to Section 9.01(B) hereof;
(vi) payment of Obligations owed a Lender or Lenders
pursuant to Swap Agreements on a pro rata basis according to amounts
owed;
(vii) payments of all other amounts due under this Agreement,
if any, to be applied for the ratable benefit of the Lenders; and
(viii) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE X
THE AGENT
10.01. APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 10.05 and
the first sentence of Section 10.06 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, agents): (a) shall not
have any duties or responsibilities except those expressly set forth in this
Agreement and shall not be a trustee or fiduciary for any Lender; (b) shall not
be responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Loan
Document or any certificate or other document referred to or provided for in, or
received by any of them under, any Loan Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any Loan Document,
or any other document referred to or provided for therein or for any failure by
any Loan Party or any other Person to perform any of its obligations thereunder;
(c) shall not be responsible for or have any duty to ascertain, inquire into, or
verify the performance or observance of any covenants or agreements by any Loan
Party or the satisfaction of any condition or to inspect the property (including
the books and records) of any Loan Party or any of its Subsidiaries or
affiliates; (d) shall not be required to initiate or conduct any litigation or
collection proceedings under any Loan Document; and (e) shall not be responsible
for any action taken or omitted to be taken by it under or in connection with
any Loan Document, except for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
10.02. RELIANCE BY AGENT. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telecopy) believed by it to be
genuine and correct and to have been signed, sent or made by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Loan Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until the Agent
receives and accepts an Assignment and Acceptance executed in accordance with
Section 11.01 hereof. As to any matters not expressly provided for by this
Agreement, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding on all of the
Lenders; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to any
Loan Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
<PAGE> 77
10.03. DEFAULTS. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to Section 10.02 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, 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 in the best interest of the Lenders.
10.04. RIGHTS AS LENDER. With respect to its Commitment and the Loans
made by it, NationsBank (and any successor acting as Agent) in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. NationsBank (and any successor
acting as Agent) and its affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with any Loan Party or any of its Subsidiaries or affiliates as if it
were not acting as Agent, and NationsBank (and any successor acting as Agent)
and its affiliates may accept fees and other consideration from any Loan Party
or any of its Subsidiaries or affiliates for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
10.05. INDEMNIFICATION. The Lenders agree to indemnify the Agent (to
the extent not reimbursed under Section 11.11 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising out of any Loan
Document or the transactions contemplated thereby or any action taken or omitted
by the Agent under any Loan Document provided that no Lender shall be liable for
any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Person to be indemnified. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any costs or expenses payable by the Borrower under Section
11.11, to the extent that the Agent is not promptly reimbursed for such costs
and expenses by the Borrower. The agreements contained in this Section 10.05
shall survive payment in full of the Loans, the Obligations and all other
amounts payable under this Agreement.
10.06. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Loan Parties and their Subsidiaries and decision to
enter into this Agreement and that it will,
<PAGE> 78
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under the Loan Documents. Except for notices, reports, and other documents and
information expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition, or business of any Loan Party or any of its Subsidiaries or
affiliates that may come into the possession of the Agent or any of its
affiliates.
10.07. RESIGNATION OF AGENT. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $100,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article X shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
<PAGE> 79
ARTICLE XI
MISCELLANEOUS
11.01 ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Loans, its Note, and its Revolving Credit
Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, any
such partial assignment shall be in an amount at least equal to $10,000,000 or
an integral multiple of $5,000,000 in excess thereof;
(iii) except in the case of an assignment of all of a Lender's
rights and obligations under this Agreement, no Lender shall make any assignment
that would result in its Revolving Credit Commitment being less than
$10,000,000;
(iv) each such assignment by a Lender shall be of a constant, and
not varying, percentage of all of its rights and obligations under this
Agreement and its Note; and
(v) the parties to such assignment shall execute and deliver
to the Agent for its acceptance an Assignment and Acceptance, together with any
Note subject to such assignment and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement; provided, the
assigning Lender shall be entitled to reimbursement from the Borrower with
respect to amounts payable pursuant to Sections 4.01, 4.05, 4.06, 7.14, 11.06
and 11.11 in connection with events prior to such assignment; provided further,
to the extent the Borrower makes any such payments to the assigning Lender, the
Borrower shall not be required to also pay the assignee such amounts. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Agent certification as to exemption
from deduction or withholding of Taxes in accordance with Section 4.06.
(b) The Agent shall maintain at its Principal Office a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time (the "Register"). The entries in the
<PAGE> 80
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit B hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and its Loans) up to and including, but not greater
than, fifty percent (50%) of its Revolving Credit Commitment; provided, however,
that (i) such Lender s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participant shall be entitled to
the benefit of the right of set-off contained in Section 11.04, and (iv) the
Borrower shall continue to deal solely and directly with such Lender in
connection with such Lender s rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of the
Borrower relating to its Loans and its Note and to approve any amendment,
modification, or waiver of any provision of this Agreement (other than
amendments, modifications, or waivers decreasing the amount of principal of or
the rate at which interest is payable on such Loans or Note, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans or Note, or extending its Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Any Lender may furnish any information concerning the Borrower or
any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.03 hereof.
11.02 NOTICES. All notices shall be in writing, except as to telephonic
notices expressly permitted or required herein, and written notices shall be
delivered by hand delivery,
<PAGE> 81
telefacsimile, overnight courier or certified or registered mail. Any notice
shall be conclusively deemed to have been received by any party hereto and be
effective on the day on which delivered to such party (against (except as to
telephonic or telefacsimile notice) receipt therefor) at the address set forth
below or such other address as such party shall specify to the other parties in
writing:
(a) if to the Borrower:
Proffitt's, Inc.
750 Lakeshore Parkway
Birmingham, AL 35211
Attention: Treasurer
Telephone: (205) 940-4732
Telefacsimile: (205) 940-4098
with a copy to:
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30909-3424
Attention: Paul Cushing
Telephone: (404) 881-7000
Telefacsimile: (404) 881-7777
(b) if to the Agent:
NationsBank of Texas, National Association
NationsBank Plaza
901 Main Street, 67th Floor
Dallas, Texas 75202
Attention: Ms. Renita Cummings, Agency Services
Telephone: (214) 508-2133
Telefacsimile: (214) 508-2515
with a copy to:
NationsBank, N.A.
600 Peachtree Street, N.E., 21st Floor
Atlanta, Georgia 30308-2213
Attention: Nancy Goldman
Telephone: 404-607-5539
Telefacsimile: 404-607-6467
(c) if to NationsBank in its capacity as issuer of the Letters of
Credit:
NationsBank of Texas, National Association
NationsBank Plaza
901 Main Street, 9th Floor
<PAGE> 82
Dallas, Texas 75202
Attention: Sandy Bohanon, Letter of Credit Department
Telephone: (214) 508-2285
Telefacsimile: (214) 508-2543
(d) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance.
11.03 CONFIDENTIALITY. The Agent and each Lender shall utilize all
non-public information obtained pursuant to the requirements of this Agreement
or any of the other Loan Documents which has been identified as confidential by
the Borrower in accordance with the customary procedure of the Agent or such
Lender, as the case may be, for handling confidential information of this nature
and in accordance with safe and sound banking practices but in any event may
make disclosure: (a) to any of their respective affiliates (provided they shall
agree in writing to keep such information confidential in accordance with the
terms of this Section 11.03); (b) as reasonably required by any bona fide
potential assignee, participant or other transferee in connection with the
contemplated transfer of any Commitment or participations therein as permitted
hereunder (provided they shall agree in writing to keep such information
confidential in accordance with the terms of this Section); (c) as required,
ordered or requested by any Governmental Authority or representative thereof or
pursuant to legal process or in connection with any legal proceedings relating
to any of the Loan Documents or the transactions contemplated thereby; (d) to
the Agent's or such Lender's independent auditors and other professional
advisors (provided they shall be notified of the confidential nature of the
information); (e) as required by any law, rule or regulation; (f) of such
information that is or becomes available to the public or that is or becomes
available to any Lending Party other than as a result of a disclosure by any
Lending Party prohibited by this Agreement; (g) to any other Lending Party or
any affiliate of any Lending Party, or any officer, director, employee, agent,
or advisor of any Lending Party or affiliate of any Lending Party; and (h) after
the happening and during the continuance of an Event of Default, to any other
Person, in connection with the exercise by the Agent or the Lenders of rights
hereunder or under any of the other Loan Documents.
11.04 RIGHT OF SET-OFF; ADJUSTMENTS.
(a) Upon the occurrence and during the continuance of any Event of
Default, each Lender (and each of its affiliates) is hereby authorized at any
time and from time to time, 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 and other indebtedness at any time owing by such
Lender (or any of its affiliates) to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender, irrespective of
whether such Lender shall have made any demand under this Agreement or such
Note. Each Lender agrees promptly to notify the Borrower after any such set-off
and application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender may have.
<PAGE> 83
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest. The Borrower agrees that any Lender so
purchasing a participation from a Lender pursuant to this Section 11.04 may, to
the fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Person were the direct creditor of the Borrower in the amount of such
participation.
11.05 SURVIVAL. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the expiration of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of the Obligations remain outstanding or any Lender has
any commitment hereunder. Whenever in this Agreement, any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and agreements by
or on behalf of the Borrower which are contained in this Agreement, the Notes
and the other Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Lenders or any of them.
11.06 EXPENSES. The Borrower agrees to pay on demand all reasonable
costs and expenses of the Agent in connection with the preparation, execution,
delivery, administration, modification, waiver and amendment of this Agreement,
the other Loan Documents, and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and expenses of counsel for
the Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under the Loan Documents. The Borrower further
agrees to pay on demand all reasonable costs and expenses of the Agent and of
each of the Lenders, if any (including, without limitation, reasonable
attorneys' fees actually incurred and expenses and the cost of internal
counsel), in connection with the enforcement, workout or preservation of any
rights under this Agreement and other Loan Documents (whether through
negotiations, legal proceedings, or otherwise) and the other documents to be
delivered hereunder.
11.07 AMENDMENTS AND WAIVERS. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders
(and, if Article X or the rights or duties of the Agent are affected thereby, by
the Agent); provided that no such amendment or waiver shall, unless signed by
all the Lenders, (i) increase the Revolving Credit Commitments of the Lenders,
(ii) reduce the principal of, or rate of interest on, any Loan (other than a
Swing Line Loan) or any fees or other amounts payable hereunder, including
<PAGE> 84
without limitation accrued interest, (iii) postpone any date fixed for the
payment of any scheduled installment of principal of or interest on any Loan or
any fees or other amounts payable hereunder or for termination of any Revolving
Credit Commitment, (iv) change the percentage of the Revolving Credit
Commitments or of the unpaid principal amount of the Notes, or the number of
Lenders, which shall be required for the Lenders or any of them to take any
action under this Section or any other provision of this Agreement or (v)
release any Guarantor.
11.08 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
11.09 TERMINATION. At such times as (a) all of the Revolving Credit
Commitments have been terminated, (b) none of the Lenders is obligated any
longer under this Agreement to make any Loans, (c) NationsBank is no longer
obligated under this Agreement to issue any Letters of Credit, (d) the Swing
Line Lender is no longer obligated under this Agreement to make Swing Line
Loans, (e) no Letters of Credit remain issued and outstanding and (f) all
Obligations (other than obligations which survive as provided in the following
two sentences) have been paid and satisfied in full, this Agreement shall
terminate. Notwithstanding the foregoing, the termination of this Agreement
shall not affect any rights of the Borrower, the Lenders or the Agent or any
obligation of the Borrower, the Lenders or the Agent, arising prior to the
effective date of such termination, and all representations, warranties,
covenants, waivers and agreements contained herein shall continue until this
Agreement is so terminated, unless continuing thereafter as otherwise provided
herein. Without limitation of the foregoing, the provisions of Sections 4.05,
4.06, 7.14, 10.05, 11.06 and 11.11 shall survive the termination of this
Agreement and the Loan Documents. Notwithstanding the foregoing, if after
receipt of any payment pursuant to the Loan Documents of all or any part of the
Obligations, any Lender is for any reason compelled to surrender such payment to
any Person because such payment is determined to be void or voidable as a
preference, impermissible setoff, a diversion of trust funds or for any other
reason, this Agreement shall continue in full force and the Borrower shall be
liable to, and shall indemnify and hold such Lender harmless for, the amount of
such payment surrendered until such Lender shall have been finally and
irrevocably paid in full. The provisions of the foregoing sentence shall be and
remain effective notwithstanding any contrary action which may have been taken
by the Lenders in reliance upon such payment, and any such contrary action so
taken shall be without prejudice to the Lenders' rights under this Agreement and
shall be deemed to have been conditioned upon such payment having become final
and irrevocable.
11.10 GOVERNING LAW. ALL DOCUMENTS EXECUTED PURSUANT TO THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION, THIS AGREEMENT
AND EACH OF THE LOAN DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS MADE UNDER, AND
FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND
JUDICIAL DECISIONS OF THE STATE OF GEORGIA. THE BORROWER HEREBY SUBMITS TO THE
JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF GEORGIA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR FOR THE PURPOSES OF COLLECTION.
11.11 INDEMNIFICATION. (a) The Borrower agrees to indemnify and hold
harmless the Agent and each Lender and each of their affiliates and their
respective officers, directors,
<PAGE> 85
employees, agents, and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys' fees and disbursements of
counsel ) that are incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or relating to or by
reason of (including, without limitation, in connection with any investigation,
litigation, or proceeding or preparation of defense in connection therewith) the
Loan Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans, except to the extent such claim,
damage, loss, liability, cost, or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct or to the extent
relating to actions or proceedings between or among the Indemnified Parties and
the Lenders not arising from any action or inaction by the Borrower, or
resulting from any claim brought by the Borrower against any Lender for failure
to fund under the Revolving Credit Facility in accordance with this Agreement in
which the Borrower is the prevailing party. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 11.11
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of each of the
indemnified liabilities which is permissible under applicable law. The Borrower
further agrees not to assert any claim against the Agent, any Lender, any of
their affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans. Without prejudice to
the survival of any other agreement of the Borrower hereunder, the agreements
and obligations of the Borrower contained in this Section 11.11 shall survive
the payment in full of the Loans, the Obligations and all other amounts payable
under this Agreement.
(b) If a claim is to be made by a party entitled to indemnification
under this Section 11.11 or Section 7.14 against the Borrower, the Indemnified
Party shall give written notice to the Borrower promptly after the Indemnified
Party receives actual notice of any claim, action, suit, loss, cost, liability,
damage or expense incurred or instituted for which the indemnification is
sought. If requested by Borrower in writing, and so long as no Default or Event
of Default shall have occurred and be continuing, such Indemnified Party shall
contest at the expense of the Borrower the validity, applicability and/or amount
of such suit, action, or cause of action to the extent such contest may be
conducted in good faith on legally supportable grounds. If any lawsuit or
enforcement action is filed against any Indemnified Party, written notice
thereof shall be given to the Borrower as soon as practicable (and in any event
within 20 days after the service of the citation or summons). Notwithstanding
the foregoing, the failure so to notify the Borrower as provided in this Section
will relieve the Borrower from liability hereunder only if and to the extent
that such failure results in the forfeiture by the Borrower of any substantive
rights or defenses. The Indemnified Party shall control the defense and
investigation of such lawsuit or action and to employ and engage counsel of its
own choice to handle and defend the same, at the Borrower's cost, risk and
expense; provided, however, that the Borrower may, at its own cost participate
in the investigation, trial and defense of such lawsuit or action and any appeal
arising therefrom. If
<PAGE> 86
the Borrower has acknowledged to the Indemnified Party its obligation to
indemnify hereunder, the Indemnified Party, so long as no Default or Event of
Default shall have occurred and be continuing, shall not settle such lawsuit or
enforcement action without the prior written consent of the Borrower and, if the
Borrower has not so acknowledged its obligation, the Indemnified Party shall not
settle such lawsuit or enforcement action without giving twenty (20) days' prior
written notice of such settlement and its terms to the Borrower.
11.12 HEADINGS AND REFERENCES. The headings of the Articles and
Sections of this Agreement are inserted for convenience of reference only and
are not intended to be a part of, or to affect the meaning or interpretation of
this Agreement. Words such as "hereof", "hereunder", "herein" and words of
similar import shall refer to this Agreement in its entirety and not to any
particular Section or provisions hereof, unless so expressly specified. As used
herein, the singular shall include the plural, and the masculine shall include
the feminine or a neutral gender, and vice versa, whenever the context requires.
11.13 SEVERABILITY. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
11.14 ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
11.15 AGREEMENT CONTROLS. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any term of this Agreement,
the terms and provisions of this Agreement shall control.
11.16 USURY SAVINGS CLAUSE. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
Georgia law, shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if and when the Loans made hereunder are repaid in full
the total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrower shall
pay to the Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the
Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or
<PAGE> 87
receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be canceled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum non-usurious interest rate than applicable laws now allow.
11.17 STATUS OF DEBT. Each party hereto agrees that the Revolving
Credit Facility, the Letter of Credit Facility, all Swing Line Loans and all
Outstandings are hereby
(i) specifically designated as "Significant Senior
Indebtedness," "Parent Senior Indebtedness" and as "Significant Parent
Senior Indebtedness" for all purposes of the Parisian Indenture and are
to be afforded all rights of, and terms applicable to, Significant
Senior Indebtedness, Parent Senior Indebtedness and Significant Parent
Senior Indebtedness under the terms of the Parisian Indenture,
including without limitation subordination of the Parisian Senior
Subordinated Notes and of the Parent Guarantee (as defined in the
Parisian Indenture); and
(ii) determined to be "Senior Indebtedness" as defined in and
for all purposes of the Convertible Subordinated Debentures Indenture
and the Junior Subordinated Debentures and are to be afforded all
rights of, and terms applicable to, Senior Indebtedness under the terms
of the Convertible Subordinated Debentures Indenture and the Junior
Subordinated Debentures, including without limitation subordination of
the Convertible Subordinated Debentures and the Junior Subordinated
Debentures.
11.18 WAIVER OF JURY TRIAL. EXCEPT AS PROHIBITED BY LAW, EACH PARTY
HERETO HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS.
11.19 REMOVAL OF LENDERS. If (a) a Lender requests compensation
pursuant to Sections 4.01(a) or (b) or Section 4.06 and the Required Lenders are
not also doing the same, (b) the obligation of a Lender to make Eurodollar Loans
or to Continue, or to Convert Base Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Section 4.01(a) or Section 4.03 but the obligation of the
Required Lenders shall not have been suspended under such Sections, or (c) any
Lender refuses or otherwise fails to consent to any waiver, amendment or other
modification of any Loan Document which (i) requires the unanimous written
consent of all Lenders under Section 11.07 and (ii) has been approved in writing
by the Required Lenders, then, so long as there does not then exist any Default
or Event of Default, the Borrower may either (A) demand that such Lender (the
"Affected Lender"), and upon such demand the Affected Lender shall promptly,
assign its Commitment and all of its Loans to another Eligible Assignee
identified by the Borrower and willing to become a Lender subject to and in
accordance with the provisions of Section 11.01(a) for a purchase price equal to
the aggregate principal balance of Loans then owing to the Affected Lender plus
any accrued but
<PAGE> 88
unpaid interest thereon, accrued but unpaid fees owing to the Affected Lender
and any amounts owing the Affected Lender under Section 4.05, or (B) pay to the
Affected Lender the aggregate principal balance of Loans then owing to the
Affected Lender plus any accrued but unpaid interest thereon, accrued but unpaid
fees owing to the Affected Lender and any amounts owing the Affected Lender
under Section 4.05, whereupon the Affected Lender shall no longer be a party
hereto or have any rights or obligations hereunder or under any of the other
Loan Documents and the Total Revolving Credit Commitment shall immediately and
permanently be reduced by an amount equal to the amount of the Affected Lender's
Commitment. Each of the Agent and the Affected Lender shall reasonably cooperate
in effectuating the replacement of an Affected Lender under this Section, but at
no time shall the Agent or the Affected Lender be obligated in any way
whatsoever to initiate any such replacement. The exercise by the Borrower of its
rights under this Section shall be at the Borrower's sole cost and expense.
[SIGNATURES ON FOLLOWING PAGES.]
<PAGE> 89
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
PROFFITT'S, INC.
By: /s/ James S. Scully
--------------------
Title: Vice President
ATTEST: /s/ Brian J. Martin
- ---------------------------
Assistant Secretary
- ----------
(Seal)
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, as Agent for the Lenders
By: /s/ Nancy S. Goldman
---------------------
Title: Vice President
<PAGE> 90
NATIONSBANK OF TEXAS,
NATIONAL ASSOCIATION
By: /s/ Nancy S. Goldman
---------------------
Title: Vice President
Lending Office:
NationsBank of Texas,
National Association
NationsBank Plaza
901 Main Street
67th Floor
Dallas, Texas 75202
Attention: Ms. Renita Cummings,
Agency Services
Telephone: (214) 508-2133
Telefacsimile: (214) 508-2515
Wire Transfer Instructions:
NationsBank of Texas,
National Association
ABA# 111000025
Reference: Proffitt's, Inc.
Account No.: 1292000883
Attention: Credit Services
Signature page 2 of 22
<PAGE> 91
NATIONAL CITY BANK,
KENTUCKY
By: /s/ Kevin L. Anderson
----------------------
Title: Vice President
Lending Office:
National City Bank, Kentucky
101 South 5th Street
8th Floor
Louisville, Kentucky 40202
Attention: Mr. Kevin L. Anderson,
Vice President
Telephone: (502) 581-7894
Telefacsimile: (502) 581-5122
Wire Transfer Instructions:
National City Bank Kentucky
101 South Fifth Street
Louisville, Kentucky 40202
ABA# 083-000-056
Reference: Proffitt's, Inc.
Account No.: 5737553042
Attention: Ms. Etta Moore,
Commercial Loan Operations
Signature 3 of 22
<PAGE> 92
SOUTHTRUST BANK,
NATIONAL ASSOCIATION
By: /s/ Alex Morton
--------------------------
Title: Commercial Loan Officer
Lending Office:
SouthTrust Bank, N.A.
420 N. 20th Street
11th Floor
Birmingham, Alabama 35203
Attention: Mr. Alex Morton
Commercial Loan Officer
Telephone: (205) 254-4990
Telefacsimile: (205) 254-8270
Wire Transfer Instructions:
SouthTrust Bank, N.A.
ABA# 062000080
Reference: Proffitt's, Inc.
Attention: Ms. Rebekah Johns
Corporate Banking
Signature page 4 of 22
<PAGE> 93
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
CAYMAN ISLANDS BRANCH
By: /s/ John W. Somers
-----------------------------------
Title: Senior Vice President & Manager
By: /s/ William J. Bartlett
----------------------------
Title: Assistant Vice President
Lending Office:
DG BANK New York Branch
609 Fifth Avenue
New York, New York 10017-1021
Attention: Mr. Ed Thorne
Telephone: (212) 745-1464
Telefacsimile: (212) 745-1422
Wire Transfer Instructions:
DG BANK
via CHIPS SYSTEM
ABA# 845
Reference: Proffitt's, Inc.
Routing/Account No.: 026008455
Attention: Mr. Ed Thorne
Signature page 5 of 22
<PAGE> 94
DEPOSIT GUARANTY NATIONAL BANK
By: /s/ Larry C. Ratzlaff
------------------------
Title: Senior Vice President
Lending Office:
Deposit Guaranty National Bank
210 East Capitol St.
Jackson, Mississippi 39201
Attention: Mr. Larry C. Ratzlaff
Telephone: (601) 968-4749
Telefacsimile: (601) 354-8315
Wire Transfer Instructions:
Deposit Guaranty National Bank
210 E. Capitol Street
Jackson, Mississippi 39201
ABA# 065305436
Account No.: 7171416
Reference: Proffitt's, Inc.
Attention: Ms. Addie Bates
Loan Closing
Signature page 6 of 22
<PAGE> 95
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By: /s/ James Chapman
------------------------
Title: Senior Vice President
Lending Office:
First Tennessee Bank National
Association
165 Madison Ave.
6th Floor Main Office
Memphis, Tennessee 38103
Attention: Mr. Jim Chapman
Telephone: (901) 523-4273
Telefacsimile: (901) 523-4633
Wire Transfer Instructions:
First Tennessee Bank National Association
165 Madison Avenue
Memphis, Tennessee 38103
ABA# 084000026
Account No.: 1141746870
Reference: Proffitt's, Inc.
Attention: Ms. Deborah Johnson
ext.4188
Signature page 7 of 22
<PAGE> 96
THE BANK OF NOVA SCOTIA
By: /s/ P. Hawes
-----------------------
Title: Relationship Manager
Lending Office:
The Bank of Nova Scotia
600 Peachtree Street
Suite 2700
Atlanta, Georgia 30308
Attention: Mr. Patrick M. Brown
Telephone: (404) 877-1506
Telefacsimile: (404) 888-8998
Wire Transfer Instructions:
The Bank of Nova Scotia
ABA# 026002532
Account No.: 0606634
Reference: Proffitt's, Inc.
Attention: Atlanta Agency
Signature page 8 of 22
<PAGE> 97
AMSOUTH BANK OF ALABAMA
By: /s/ D.M. Sinclair
-----------------
Title: Vice President
Lending Office:
AmSouth Bank of Alabama
1900 5th Avenue North
7th Floor
Birmingham, Alabama 35288
Attention: Mr. Donald M. Sinclair
Vice President
Telephone: (205) 801-0349
Telefacsimile: (205) 583-4436
Wire Transfer Instructions:
AmSouth Bank of Alabama
1900 5th Avenue North - AST 7th Floor
Birmingham, Alabama 35203
ABA# 062000019
Account No.: Corporate Clearing
acct #001102450400100
Reference: Proffitt's, Inc.
Attention: Sharon Volland
Ext. 7632
Signature page 9 of 22
<PAGE> 98
BANK OF AMERICA ILLINOIS
By: /s/ Sandra S. Ober
------------------
Title: Vice President
Address for Notices:
Bank of America Illinois
231 S. LaSalle Street
Chicago, Illinois 60647
Attention: Ms. Sandra Ober
Vice President
Telephone: (312) 828-1307
Telefacsimile: (312) 987-0303
Lending Office:
Bank of America Illinois
231 S. LaSalle St., 200/9
Chicago, IL 60697
Telephone: (312) 828-6568
Telefacsimile: (312) 974-9626
Wire Transfer Instructions:
Bank of America Illinois
231 S. LaSalle Street
Chicago, Illinios 60697
ABA# 071000039
Account No.: 47-03421
Reference: Proffitt's, Inc.
Attention: Sheila Johnson
Account Administration
Signature page 10 of 22
<PAGE> 99
HIBERNIA NATIONAL BANK
By: /s/ Christopher B. Piter
---------------------------
Title: Assistant Vice President
Lending Office:
Hibernia National Bank
313 Carondelet Street
New Orleans, Louisiana 70130
Attention: Mr. Christopher B. Pitre
Telephone: (504) 533-2878
Telefacsimile: (504) 533-5344
Wire Transfer Instructions:
Hibernia National Bank
P.O. Box 61540
New Orleans, Louisiana 70161
ABA# 065000090
Account No.:0520-36615
Reference: Proffitt's, Inc.
Attention: National Accounts
Signature page 11 of 22
<PAGE> 100
FIRST AMERICAN NATIONAL BANK
By: /s/ William Stutts
------------------
Title: Vice President
Lending Office:
First American National Bank
6000 Poplar Ave. Suite 300
Memphis, Tennessee 38119
Attention: Mr. William R. Stutts
Telephone: (901) 762-5675
Telefacsimile: (901) 762-5665
Wire Transfer Instructions:
First American National Bank
First American Center
4th & Union NA-0075
Nashville, Tennessee 37237
ABA# 064000017
Account No.:1002295498
Reference: Proffitt's, Inc.
Attention: Trish Reavis
Signature page 12 of 22
<PAGE> 101
NORWEST BANK IOWA, N.A.
By: /s/ Douglas Barclay
-------------------
Title: Vice President
Lending Office:
Norwest Bank Iowa, N.A.
M.S. 4019
7th & Walnut
Des Moines, Iowa 50309
Attention: Mr. Douglas C. Barclay
Telephone: (515) 245-3016
Telefacsimile: (515) 245-3128
Wire Transfer Instructions:
Norwest Bank Iowa, N.A.
666 Walnut Street
Des Moines, Iowa 50309
ABA# 073000228
Reference: Proffitt's, Inc.
Attention: Tammy Gregory or Cheryl Hansen
Signature page 13 of 22
<PAGE> 102
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Debora K. Oberling
----------------------
Title: Vice President
Lending Office:
The First National Bank of Chicago
One First National Plaza
Suite 0086
Chicago, Illinois 60670
Attention: Ms. Debora K. Oberling
Telephone: (312) 732-4644
Telefacsimile: (312) 732-1117
Wire Transfer Instructions:
The First National Bank of Chicago
ABA# 071000013
Account No.:7521-7653
Reference: Proffitt's, Inc.
Attention: Karen Hannusch
Signature page 14 of 22
<PAGE> 103
CREDIT LYONNAIS ATLANTA AGENCY
By: /s/
-----------------
Title: Vice President
Credit Lyonnais Atlanta Agency
303 Peachtree St., NE
Suite 4400
Atlanta, Georgia 30308
Attention: Christina Earnshaw
Vice President
Telephone: (404) 524-3700
Telefacsimile: (404) 584-5249
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/
------------------------
Title: Senior Vice President
Credit Lyonnais New York Branch
1301 Ave. of the Americas
18th Floor
New York, New York 10019
Attention: Robert Ivosevich
Telephone: (212) 261-7130
Telefacsimile: (212) 459-3360
Wire Transfer Instructions:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
ABA#0260-0807-3
Account No.: 01-24173.0001.00
Credit: CL Atlanta Agency
Reference: Proffitt's, Inc.
Attention: Loan Servicing
Signature page 15 of 22
<PAGE> 104
DEUTSCHE BANK AG, NEW
YORK BRANCH AND/OR CAYMAN
ISLAND BRANCH
By: /s/ Joel Makowsky
---------------------------
Title: Assistant Vice President
By: /s/ S. O'Connor
---------------
Title: Director
Lending Office:
Deutsche Bank AG
New York Branch and/or Cayman Islands
Branch
31 West 52nd Street
New York, New York 10019
Wire Transfer Instructions:
Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
ABA No.: 026003780
Attention: Joseph Gyurindak
Reference: Proffitt's, Inc.
Signature page 16 of 22
<PAGE> 105
THE BANK OF NEW YORK
By: /s/ Paula DiPonzio
------------------
Title: Vice President
Lending Office:
The Bank of New York
One Wall Street, 8th Floor
New York, New York 10286
Attention: Paula DiPonzio
Vice President
Telephone: (212) 635-7867
(212) 635-1481/1483
Base Rate Loans: Wire Transfer Instructions:
The Bank of New York
101 Barclay Street
ABA: 021000018
Commercial Loan Servicing Department
GLA No.: 111556
Reference: Proffitt's
ie: principal, interest, fees
EuroDollar Loans: The Bank of New York
101 Barclay Street
ABA: 021000018
Eurodollar/Cayman Funding Area
GLA No.: 111556
Reference: Proffitt's
ie: principal, interest
Letters of Credit: The Bank of New York
101 Barclay Street
ABA: 021000018
Trade Services Division
GLA No.: 111115
Reference: Proffitt's
ie: fee period
L/C No.:
ie: fee period
Signature page 17 of 22
<PAGE> 106
FIRST BANK
By: /s/ Carol M. Preisinger
-------------------------
Title: Senior Vice President
Lending Office:
First Bank National Association
601 2nd Avenue South
Minneapolis, Minnesota 55402
Wire Transfer Instructions:
First National Bank Association
601 2nd Avenue South
Minneapolis, Minnesota 55402
ABA #: 091000022
Attention: Commercial Loan Service Center
Account No.: 30000472160600
Reference: for Proffitt's, Inc.
A/C No.: 1735056807
Signature page 18 of 22
<PAGE> 107
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Christopher C. Kunhardt
---------------------------
Title: Vice President
Lending Office:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260-0060
Wire Transfer Instructions:
Morgan Guaranty Trust Company of New York
ABA No.: 021-000-238
For credit to: International Trade Services
A/C No.: 999-99-068
Reference: Proffitt's, Inc.
Signature page 19 of 22
<PAGE> 108
THE SUMITOMO BANK, LIMITED
By: /s/ Masayuki Fukushima
-------------------------
Title: Joint General Manager
Lending Office:
The Sumitomo Bank, Limited
277 Park Avenue
New York, New 10172
Attention: Peter Leahy
Assistant Vice President
Telephone: (404) 525-8516
Telefacsimile: (404) 521-1187
Wire Transfer Instructions:
US Dollars
Morgan Guaranty Trust Company of New York
Account Number: 631-28-256 (The Sumitomo
Bank, Ltd.)
Routing Transit/ABA No.: 021000238
Attention: Loan Operations
Reference: Proffitt's, Inc.
Signature page 20 of 22
<PAGE> 109
UNION BANK OF CALIFORNIA, N.A.
By: /s/ John Cinderey
------------------
Title: Vice President
Lending Office:
Union Bank of California, N.A.
350 California St.
11th Floor
San Francisco, California 94104
Attention: John Cinderey
Vice President
Telephone: (415) 705-5041
Telefacsimile: (415) 705-7085
Wire Transfer Instructions:
Union Bank of California, N.A.
1980 Satrun Street
Monterey Park, California 91755
ABA No.: 122-000-496
Account No.: 196431
Attention: Wire Transfer Clearing
192 Note Center
Reference: Proffitt's, Inc.
Signature page 21 of 22
<PAGE> 110
WACHOVIA BANK, N.A.
By: /s/
-----------------
Title: Vice President
Lending Office:
Wachovia Bank, N.A.
191 Peachtree Street, NE, 29th Floor
Atlanta, Georgia 30303
Attention: Lanny Nixon
Vice President
Telephone: (404) 332-4884
Telefacsimile: (404) 332-5016
Wire Transfer Instructions:
Wachovia Bank, N.A.
191 Peachtree Street, NE
Atlanta, Georgia 30303-17517
ABA# 061000010
Account No.: 18-800-621
Attention: Sharon Westmoreland
Signature page 22 of 22
<PAGE> 111
EXHIBIT A
REVOLVING CREDIT COMMITMENTS
<TABLE>
<CAPTION>
Lender Revolving Credit Commitment
- ---------------------------------------------------------------------------------
<S> <C>
NationsBank of Texas, National Association $ 30,000,000
Bank of America Illinois $ 27,500,000
Morgan Guaranty Trust Company of New York $ 27,500,000
The Bank of Nova Scotia $ 25,000,000
Credit Lyonnais, Atlanta Agency $ 25,000,000
First Tennessee Bank National Association $ 25,000,000
Hibernia National Bank $ 25,000,000
SouthTrust Bank, National Association $ 25,000,000
AmSouth Bank of Alabama $ 25,000,000
Deutsche Bank AG, New York Branch $ 25,000,000
and/or Cayman Island Branch
Deposit Guaranty National Bank $ 15,000,000
DG BANK Deutsche Genossenschaftsbank $ 15,000,000
Cayman Islands Branch
The First National Bank of Chicago $ 15,000,000
National City Bank, Kentucky $ 15,000,000
Norwest Bank Iowa, N.A. $ 15,000,000
First American National Bank $ 15,000,000
The Bank of New York $ 10,000,000
First Bank National Association $ 10,000,000
The Sumitomo Bank, Limited $ 10,000,000
Union Bank of California, N.A. $ 10,000,000
Wachovia Bank, N.A. $ 10,000,000
Total Revolving Credit Commitment $400,000,000
</TABLE>
<PAGE> 112
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit Facilities
and Reimbursement Agreement dated as of June 26, 1997 (the "Credit Agreement")
among PROFFITT'S, INC., a Tennessee corporation (the "Borrower"), the Lenders
(as defined in the Credit Agreement) and NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, as agent for the Lenders (the "Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. After
giving effect to such sale and assignment, the Assignee's Revolving Credit
Commitment and the amount of the Loans owing to the Assignee will be as set
forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note held by the Assignor and requests that the Agent
exchange such Note for new Notes payable to the order of the Assignee in an
amount equal to the Revolving Credit Commitment assumed by the Assignee pursuant
hereto and to the Assignor in an amount equal to the Revolving Credit Commitment
retained by the Assignor, if any, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Sections 6.01(f) and 7.01 thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably
<PAGE> 113
incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (vi) attaches any U.S. Internal
Revenue Service or other forms required under Section 4.06.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Georgia.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
<PAGE> 114
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
<TABLE>
<S> <C>
Percentage interest assigned: ________%
Assignee's Commitment: $_______
Aggregate outstanding principal amount
of Loans assigned: $_______
Principal amount of Note payable to Assignee: $_______
Principal amount of Note payable to Assignor: $_______
Effective Date (if other than date
of acceptance by Agent): *_______, 19__
</TABLE>
[NAME OF ASSIGNOR], as Assignor
By:
Title:
Dated: , 19_
[NAME OF ASSIGNEE], as Assignee
By:
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
<PAGE> 115
Accepted [AND APPROVED] **
this ___ day of ___________, 19__
NATIONSBANK ___________, N.A.
By:
Title:
[APPROVED THIS ____ DAY
OF ____________, 19__
[NAME OF BORROWER]
BY:
TITLE: ]**
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee" and no Event of Default
shall have occurred and be continuing.
<PAGE> 116
EXHIBIT C
NOTICE OF APPOINTMENT (OR REVOCATION)
OF AUTHORIZED REPRESENTATIVE
Reference is hereby made to the Second Amended and Restated Credit
Facilities and Reimbursement Agreement dated as of June 26, 1997 (the
"Agreement") among Proffitt's, Inc. (the "Borrower"), the Lenders (as defined in
the Agreement), and NationsBank of Texas, National Association, as Agent for the
Lenders ("Agent"). Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual, (ii) each such individual has been duly authorized by the
Borrower to act as Authorized Representative under the Loan Documents, and (iii)
each such individual may be notified by the Agent at the address set forth for
the Borrower in Section 11.02 of the Agreement:
<TABLE>
<CAPTION>
Name and Address Office Specimen Signature
- --------------------- ------------------------- ------------------
<S> <C> <C>
R. Brad Martin Chairman of the Board of
_________________ Directors and Chief
_________________ Executive Officer
James A. Coggin President and Chief
_________________ Operating Officer
_________________
Douglas E. Coltharp Executive Vice
_________________ President and Chief
_________________ Financial Officer
Brian J. Martin Executive Vice President
_________________ of Law and General
_________________ Counsel
Donald E. Wright Senior Vice President
_________________ of Finance and Accounting
_________________
James S. Scully Vice President
_________________ and Treasurer
_________________
</TABLE>
Borrower hereby revokes (effective upon receipt hereof by the Agent) the prior
appointment of ________________ as an Authorized Representative.
<PAGE> 117
This the 26th day of June, 1997.
PROFFITT'S, INC.
By:
Title:
--------------------------------------
<PAGE> 118
EXHIBIT D
FORM OF BORROWING NOTICE--REVOLVING CREDIT LOANS
AND SWING LINE LOANS
To: NationsBank of Texas, National Association, as Agent
NationsBank Plaza
901 Main Street, 67th Floor
Dallas, Texas 75202
Telefacsimile: 214-508-2515
Attention: Ms. Renita Cummings, Agency Services
Reference is hereby made to the Second Amended and Restated Credit
Facilities and Reimbursement Agreement dated as of June 26, 1997 (the
"Agreement") among Proffitt's, Inc. (the "Borrower"), the Lenders (as defined in
the Agreement), and NationsBank of Texas, National Association, as Agent for the
Lenders ("Agent"). Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby
confirms its prior notice of borrowing given to the Agent by telephone
approximately at __________ __.m. on ____________, 19__ to the effect that
Revolving Credit Loans or Swing Line Loans of the type and amount set forth
below be made on the date indicated:
<TABLE>
<CAPTION>
Type of Loan Interest Aggregate Date of Interest
(check one) Period(1) Amount(2) Loan(3) Rate(4)
- ----------- ------ -------------- ------------- ----
<S> <C> <C> <C> <C>
Base Rate
Loan ______
Eurodollar
Loan ______
Swing Line
Loan ______
</TABLE>
(1) For any Eurodollar Loan, one, two, three or six months.
(2) Must be $5,000,000 or a multiple of $1,000,000 in excess thereof for
Revolving Credit Loans; must be $1,000,000 or a multiple of $100,000 in
excess thereof for Swing Line Loans.
(3) At least three (3) Eurodollar Business Days later if a Eurodollar Loan;
may be same Business Day in case of a Base Rate Loan or Swing Line
Loans.
(4) For Swing Line Loans only, as agreed between the Agent and the
Borrower; the Agent's receipt of this notice with any interest rate set
forth for a Swing Line Loan as to which it has not agreed shall not be
effective as to such rate selection nor evidence of any rate selection.
Upon the Agent's written demand to Borrower for repayment of
outstanding Swing Line Loans, the outstanding balance of such Swing
Line Loans shall bear
<PAGE> 119
interest at the Base Rate and such indebtedness shall be deemed to
constitute a Base Rate Loan advanced under the Revolving Credit
Facility as of the date of such demand.
The Borrower hereby requests that the proceeds of Revolving Credit
Loans or Swing Line Loans described in this Borrowing Notice be made available
to the Borrowers as follows: [INSERT TRANSMITTAL INSTRUCTIONS].
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VI of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that the representations and warranties set forth in Section 6.01(d) and (e) of
the Agreement shall be deemed to include and take into account any merger or
consolidation permitted under Section 8.10 of the Agreement and the reference to
the financial statements in Section 6.01(f)(i) of the Agreement are to those
financial statements most recently delivered to you pursuant to Section 7.01 of
the Agreement; and
3. After giving effect to Loans requested hereby, (i) the Outstandings
will not exceed, subject to Section 2.15 of the Agreement, [the lesser of the
Borrowing Base and] the Total Revolving Credit Commitment and (ii) Swing Line
Outstandings will not exceed $25,000,000.
PROFFITT'S, INC.
By:
Authorized Representative
<PAGE> 120
EXHIBIT E
FORM OF GUARANTY AGREEMENT
[SEE ATTACHED]
<PAGE> 121
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (the "Guaranty Agreement" or the "Guaranty"),
is made and entered into as of this 26th day of June, 1997 by and between each
of MCRAE'S, INC., a Mississippi corporation, MCRAE'S OF ALABAMA, INC., an
Alabama corporation, PARISIAN, INC., an Alabama corporation, MCRAE'S STORES
PARTNERSHIP, a Mississippi general partnership and G.R. HERBERGER'S, INC., a
Delaware corporation, (collectively, the "Guarantors" and individually, each a
"Guarantor"); and NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association, as Agent (the "Agent") for each of the lenders now or hereafter
party to the Credit Agreement (as defined below) (collectively, the "Lenders"
and individually, a "Lender");
W I T N E S S E T H:
WHEREAS, the Agent and the Lenders have agreed, pursuant to the terms
of a Second Amended and Restated Credit Facilities and Reimbursement Agreement
of even date herewith (as amended, modified or supplemented from time to time,
the "Credit Agreement") among the Agent, the Lenders named therein and
Proffitt's, Inc., a Tennessee corporation (the "Borrower"), to make available to
the Borrower a revolving credit facility in the maximum aggregate principal
amount at any time outstanding of $400,000,000, which will include (i) a standby
letter of credit facility of up to $50,000,000, and (ii) a swing line facility
of up to $25,000,000 (collectively, the "Credit Facilities"), as evidenced by
the promissory notes of the Borrower dated as of June 26, 1997 in the maximum
aggregate principal amount of $400,000,000 payable to the respective Lenders
(collectively, the "Notes");
WHEREAS, all capitalized terms not otherwise defined herein shall have
the meanings therefor set forth in the Credit Agreement; and
WHEREAS, each of the Guarantors is a wholly owned, direct or indirect,
subsidiary of the Borrower; and
WHEREAS, the Agent and the Lenders are unwilling to enter into the
Credit Agreement and the Lenders are unwilling to make any Loans and NationsBank
is unwilling to issue any Letter of Credit under the Credit Facilities unless
each Guarantor guarantees to the Lenders payment of the Borrower's Liabilities
(as hereinafter defined);
WHEREAS, each Guarantor will materially benefit from the Credit
Facilities, and each Guarantor is willing to enter into this Guaranty to provide
an inducement for the Lenders and the Agent to enter into the Credit Agreement
and for the Lenders to make Loans and for NationsBank to issue Letters of Credit
under the Credit Facilities; and
NOW, THEREFORE, in order to induce the Lenders and the Agent to enter
into the Credit Agreement and to induce the Lenders to make Loans and to induce
NationsBank to issue Letters of Credit under the Credit Facilities to or on
behalf of the Borrower, each Guarantor agrees as follows:
<PAGE> 122
(1.) GUARANTY. For all purposes of this Guaranty Agreement, "Borrower's
Liabilities" means: (a) the Borrower's prompt payment in full, when due, by
acceleration or otherwise, or declared due and at all such times, of all
Obligations heretofore, now or at any time or times hereafter owing, arising,
due or payable (including without limitation interest accruing after the filing
of any bankruptcy or similar petition); and (b) the Borrower's prompt, full and
faithful performance, observance and discharge of each and every agreement,
undertaking, covenant and provision to be performed, observed or discharged by
the Borrower under the Credit Agreement and all other Loan Documents. Each
Guarantor hereby jointly and severally, unconditionally, absolutely, continually
and irrevocably guarantees to the Lenders the Borrower's Liabilities. Each
Guarantor's obligations to the Lenders under this Guaranty Agreement are
hereinafter collectively referred to as the "Guarantor's Obligations"; provided,
however, that the liability of each Guarantor with respect to the Guarantor's
Obligations shall be limited to an aggregate amount equal to the largest amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provisions of
any State law.
Each Guarantor agrees that it is jointly and severally, directly and
primarily liable for the Borrower's Liabilities.
(2.) PAYMENT. If the Borrower shall default in payment or performance
of any Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and attorneys' fees and expenses),
amount payable pursuant to any indemnity or otherwise, when and as the same
shall become due, whether according to its terms, by acceleration, or otherwise,
or upon the occurrence of any other Event of Default under the Credit Agreement
that has not been cured or waived, then each Guarantor, upon demand thereof by
the Agent or its successors or assigns, will AS OF THE DATE OF AGENT'S DEMAND
fully pay to the Agent for the benefit of the Lenders, subject to any
restriction set forth in Section 1 hereof, an amount equal to all Guarantor's
Obligations then due and owing.
(3.) UNCONDITIONAL OBLIGATIONS. This is a guaranty of payment and not
of collection. The Guarantor's Obligations under this Guaranty Agreement shall
be joint and several, absolute and unconditional irrespective of the validity,
legality or enforceability of the Credit Agreement, the Notes or any other Loan
Document or any other guaranty of the Borrower's Liabilities, and shall not be
affected by any action taken under the Credit Agreement, the Notes or any other
Loan Document, any other guaranty of the Borrower's Liabilities, or any other
agreement between the Agent or the Lenders and the Borrower or any other Person,
in the exercise of any right or power therein conferred, or by any failure or
omission to enforce any right conferred thereby, or by any waiver of any
covenant or condition therein provided, or by any acceleration of the maturity
of any of the Borrower's Liabilities, or by the release or other disposal of any
security for any of the Borrower's Liabilities, or by the dissolution of the
Borrower or the combination or consolidation of the Borrower into or with
another entity or any transfer or disposition of any assets of the Borrower or
by any extension or renewal of the Credit Agreement, the Notes or any other Loan
Document, in whole or in part, or by any modification, alteration, amendment or
addition of or to the Credit Agreement, the Notes or any other Loan Document,
any other guaranty of the Borrower's Liabilities, or any other agreement between
the Agent or the Lenders
<PAGE> 123
and the Borrower or any other Person, or by any other circumstance whatsoever
(with or without notice to or knowledge of any Guarantor) which may or might in
any manner or to any extent vary the risks of any Guarantor, or might otherwise
constitute a legal or equitable discharge of a surety or guarantor; it being the
purpose and intent that this Guaranty Agreement and the Guarantor's Obligations
hereunder shall be absolute, irrevocable and unconditional under any and all
circumstances and shall not be discharged except by payment as herein provided.
(4.) CURRENCY AND FUNDS OF PAYMENT. Each Guarantor hereby guarantees
that the Guarantor's Obligations will be paid in lawful currency of the United
States of America and in immediately available funds, regardless of any law,
regulation or decree now or hereafter in effect that might in any manner affect
the Borrower's Liabilities, or the rights of any Lender with respect thereto as
against the Borrower, or cause or permit to be invoked any alteration in the
time, amount or manner of payment by the Borrower of any or all of the
Borrower's Liabilities.
(5.) EVENTS OF DEFAULT. In the event that there shall occur an Event of
Default, then notwithstanding any collateral that the Lenders may possess from
Borrower or any other guarantor of the Borrower's Liabilities, or any other
party, at the Agent's election and without notice thereof or demand therefor, so
long as such Event of Default shall be continuing, the Guarantor's Obligations
shall automatically and immediately become due and payable.
(6.) SUITS. Each Guarantor from time to time shall pay to the Agent for
the benefit of the Lenders, on demand, at the Agent's place of business set
forth in the Credit Agreement, the Guarantor's Obligations as they become or are
declared due, and in the event such payment is not made forthwith, the Agent on
behalf of the Lenders may proceed to suit against any one or more or all of the
Guarantors and/or any other guarantor of the Borrower's Liabilities. At the
Agent's election, one or more and successive or concurrent suits may be brought
hereon by the Agent against any one or more or all of the Guarantors, whether or
not suit has been commenced against the Borrower, any other guarantor of the
Borrower's Liabilities, or any other Person and whether or not the Agent or any
Lender has taken or failed to take any other action to collect all or any
portion of the Borrower's Liabilities.
(7.) SET-OFF AND WAIVER. Each Guarantor waives any right to assert
against the Agent and the Lenders as a defense, counterclaim, set-off, or cross
claim, any defense (legal or equitable), or other claim which such Guarantor may
now or at any time or times hereafter have against the Borrower, without waiving
any additional defenses, set-offs, counterclaims or other claims otherwise
available to such Guarantor against any Person other than the Agent or any
Lender. If at any time or times hereafter the Agent or any Lender employs
counsel for advice or other representation to enforce the Guarantor's
Obligations that arise out of a default hereunder or an Event of Default, then,
in any of the foregoing events, all of the reasonable attorneys' fees actually
incurred and arising from such services and all reasonable expenses, costs and
charges in any way or respect arising in connection therewith or relating
thereto shall be jointly and severally paid by the Guarantors to the Agent, on
demand.
<PAGE> 124
(8.) WAIVER; SUBROGATION.
(a) Each Guarantor hereby waives notice of the following events or
occurrences: (i) the Agent's acceptance of this Guaranty Agreement; (ii) the
Lenders' heretofore, now or from time to time hereafter loaning monies or giving
or extending credit to or for the benefit of the Borrower, whether pursuant to
the Credit Agreement or the Notes or any amendments, modifications, or additions
thereto, or alterations, substitutions, refinancings or extensions thereof;
(iii) the Agent, the Lenders or the Borrower heretofore, now or at any time or
times hereafter, obtaining, amending, substituting for, releasing, waiving or
modifying the Credit Agreement, the Notes or any other Loan Documents; (iv)
presentment, demand, notices of default, non-payment, partial payment and
protest; (v) the Agent or the Lenders heretofore, now or at any time or times
hereafter granting to the Borrower (or any other party liable to the Lenders on
account of the Borrower's Liabilities) any indulgence or extensions of time of
payment of the Borrower's Liabilities; and (vi) the Agent or the Lenders
heretofore, now or at any time or times hereafter accepting from the Borrower or
any other person, any partial payment or payments on account of the Borrower's
Liabilities or any collateral securing the payment thereof or the Agent
settling, subordinating, compromising, discharging or releasing the same. Each
Guarantor agrees that the Agent and each Lender may heretofore, now or at any
time or times hereafter do any or all of the foregoing events or occurrences in
such manner, upon such terms and at such times as the Agent and each Lender, in
its sole and absolute discretion, deems advisable, without in any way or respect
impairing, affecting, reducing or releasing such Guarantor from the Guarantor's
Obligations, and each Guarantor hereby consents to each and all of the foregoing
events or occurrences.
(b) Each Guarantor hereby agrees that payment or performance by such
Guarantor of the Guarantor's Obligations under this Guaranty Agreement may be
enforced by the Agent on behalf of the Lenders upon demand by the Agent to such
Guarantor without the Agent being required, each Guarantor expressly waiving any
right it may have to require the Agent, to (i) prosecute collection or seek to
enforce or resort to any remedies against the Borrower or any other guarantor of
the Borrower's Liabilities, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND
AGREED TO BY EACH GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE
MADE BY THE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE AGENT, EFFECTIVE AS
OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT
AGREEMENT, or (ii) seek to enforce or resort to any remedies with respect to any
security interests, liens or encumbrances granted to the Agent by the Borrower
or any other Person on account of the Borrower's Liabilities or any guaranty
thereof. Neither the Agent nor any Lender shall have any obligation to protect,
secure or insure any of the foregoing security interests, liens or encumbrances
on the properties or interests in properties subject thereto. The Guarantor's
Obligations shall in no way be impaired, affected, reduced, or released by
reason of the Agent or any Lender's failure or delay to do or take any of the
acts, actions or things described in this Guaranty Agreement including, without
limiting the generality of the foregoing, those acts, actions and things
described in this Section 8.
(c) Each Guarantor further agrees with respect to this Guaranty
Agreement that such Guarantor shall have no right of subrogation, reimbursement
or indemnity whatsoever, nor any right of recourse to security for the
Borrower's Liabilities. In addition, each Guarantor hereby waives and renounces
any and all rights it has or may have for subrogation, indemnity, reimbursement
or contribution against the Borrower for amounts paid under this Guaranty
Agreement.
<PAGE> 125
This waiver is expressly intended to prevent the existence of any claim in
respect to such reimbursement by any Guarantor against the estate of the
Borrower within the meaning of Section 101 of the United States Bankruptcy Code,
and to prevent each Guarantor from constituting a creditor of the Borrower in
respect of such reimbursement within the meaning of Section 547(b) of the United
States Bankruptcy Code in the event of a subsequent case involving the Borrower.
(9.) EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date of the initial Loan under the Credit Agreement and
shall continue in full force and effect until the Borrower's Liabilities are
finally and fully paid, performed and discharged, none of the Lenders is
obligated any longer to make any Loans, NationsBank is no longer obligated to
issue Letters of Credit on behalf of the Borrower under the Credit Agreement,
the Swing Line Lender is no longer obligated to make Swing Line Loans, no
Letters of Credit remain outstanding, all Obligations have been paid and
satisfied in full and the Agent gives each Guarantor written notice of that fact
at each Guarantor's address on the signature pages hereto. This Guaranty
Agreement shall be binding upon and inure to the benefit of each Guarantor, the
Agent and the Lenders and their respective successors and assigns.
Notwithstanding the foregoing, no Guarantor may, without the prior written
consent of the Agent, assign any rights, powers, duties or obligations
hereunder. Any claim or claims that the Agent and the Lenders may at any time or
times hereafter have against any Guarantor under this Guaranty Agreement may be
asserted by the Agent by written notice directed to any one or more or all of
the Guarantors at the address specified below. Each Guarantor warrants and
represents to the Agent for the benefit of the Lenders that it is duly
authorized to execute, deliver and perform this Guaranty Agreement, that this
Guaranty Agreement has been duly executed and delivered and is legal, valid,
binding and enforceable against such Guarantor in accordance with its terms
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles; and that such
Guarantor's execution, delivery and performance of this Guaranty Agreement do
not violate or constitute a breach of any documents of corporate, partnership or
other similar type governance or agreement to which such Guarantor is a party,
or any applicable laws.
(10.) EXPENSES. Each Guarantor agrees to be liable for the payment of
all reasonable fees and expenses, including reasonable attorney's fees, actually
incurred by the Agent in connection with the negotiation, preparation or
enforcement of this Guaranty Agreement.
(11.) REINSTATEMENT. Each Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by the Agent under the Credit Agreement or this Guaranty
Agreement is rescinded or must be restored for any reason.
(12.) GOVERNING LAW. This Guaranty Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
(13.) COUNTERPARTS. This Guaranty Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
constitute one and the same instrument.
<PAGE> 126
(14.) RELIANCE. Each Guarantor represents and warrants to the Agent for
the benefit of the Lenders that: (a) such Guarantor has adequate means to obtain
from Borrower, on a continuing basis, information concerning Borrower and
Borrower's financial condition and affairs; (b) such Guarantor is not relying on
the Agent or any Lender, its or their employees, agents or other
representatives, to provide such information, now or in the future; (c) such
Guarantor is executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by providing this
Guaranty; (d) such Guarantor has relied solely on the Guarantor's own
independent investigation, appraisal and analysis of Borrower and Borrower's
financial condition and affairs in deciding to provide this Guaranty and is
fully aware of the same; (e) such Guarantor has not depended or relied on the
Agent or any Lender, its or their employees, agents or representatives, for any
information whatsoever concerning Borrower or Borrower's financial condition and
affairs or other matters material to such Guarantor's decision to provide this
Guaranty or for any counseling, guidance, or special consideration or any
promise therefor with respect to such decision; (f) no consent, approval or
authorization of, or filing, registration or qualification with, any
Governmental Authority is required on the part of or on behalf of such Guarantor
as a condition to the execution, delivery, and performance of, or consummation
of the transactions contemplated by, this Guaranty Agreement; and (g) the
execution, delivery and performance of this Guaranty Agreement by such Guarantor
will not (i) result in the creation or imposition of any Lien upon any of the
properties or assets of such Guarantor or (ii) be in conflict with, result in a
breach of or constitute an event of default, or an event which, with notice or
lapse of time, or both, would constitute an event of default, under any
indenture, agreement or other instrument to which such Guarantor is a party, or
by which the properties or assets of such Guarantor are bound. Each Guarantor
agrees that neither the Agent nor any Lender has any duty or responsibility
whatsoever, now or in the future, to provide to any Guarantor any information
concerning Borrower or Borrower's financial condition and affairs and that, if
such Guarantor receives any such information from the Agent or any Lender, its
or their employees, agents or other representatives, such Guarantor will
independently verify the information and will not rely on the Agent or any
Lender, its or their employees, agents or other representatives, with respect to
such information.
(15.) CONSENT TO JURISDICTION AND VENUE; WAIVER OF JURY TRIAL AND
CERTAIN DAMAGES.
(a) IN THE EVENT THAT ANY ACTION, SUIT OR OTHER PROCEEDING IS BROUGHT
AGAINST ANY GUARANTOR BY OR ON BEHALF OF THE LENDERS TO ENFORCE THE OBSERVANCE
OR PERFORMANCE OF ANY OF THE PROVISIONS OF THIS GUARANTY AGREEMENT, INCLUDING
WITHOUT LIMITATION THE COLLECTION OF ANY AMOUNTS OWING HEREUNDER, EACH SUCH
GUARANTOR HEREBY IRREVOCABLY (I) CONSENTS TO THE EXERCISE OF JURISDICTION OVER
SUCH GUARANTOR AND ITS PROPERTY BY THE UNITED STATES DISTRICT COURT AND THE
COURTS OF THE STATE OF GEORGIA, AND (II) WAIVES ANY OBJECTION SUCH GUARANTOR
MIGHT NOW OR HEREAFTER HAVE OR ASSERT TO THE VENUE OF ANY SUCH PROCEEDING IN ANY
COURT DESCRIBED IN CLAUSE (I) ABOVE.
(b) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
<PAGE> 127
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS GUARANTY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
(c) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN PARAGRAPH
(A) OF THIS SECTION 15 ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES
OR ANY OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
[SIGNATURES ON FOLLOWING PAGE.]
<PAGE> 128
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the day and year first written above.
MCRAE'S, INC.
ATTEST:
By:
----------------------------------
Name:
--------------------------------
Title: Secretary
-------------------------------
(SEAL)
Address:
3455 Highway 80 West
Jackson, Mississippi 39209
Attention: President
MCRAE'S OF ALABAMA, INC.
ATTEST:
By:
----------------------------------
Name:
--------------------------------
Title: Secretary
-------------------------------
(SEAL)
Address:
3455 Highway 80 West
Jackson, Mississippi 39209
Attention: President
PARISIAN, INC.
ATTEST:
By:
----------------------------------
Name:
--------------------------------
Title: Secretary
-------------------------------
(SEAL)
Address:
3455 Highway 80 West
Jackson, Mississippi 39209
Attention: President
<PAGE> 129
MCRAE'S STORES PARTNERSHIP
By: McRae's, Inc., as Managing Partner
ATTEST:
By:
----------------------------------
Name:
--------------------------------
Title: Secretary
-------------------------------
(SEAL)
Address:
3455 Highway 80 West
Jackson, Mississippi 39209
Attention: President
G.R. HERBERGER'S INC.
ATTEST:
By:
----------------------------------
Name:
--------------------------------
Title: Secretary
-------------------------------
(SEAL)
Address:
3455 Highway 80 West
Jackson, Mississippi 39209
Attention: President
<PAGE> 130
NATIONSBANK OF TEXAS,
NATIONAL ASSOCIATION, as Agent for
the Lenders
By:
Name:
Title:
Address:
NationsBank of Texas, National Association
901 Main Street, 67th Floor
Dallas, Texas 75202
Attention: Ms. Renita Cummings
Agency Services
With a copy to:
NationsBank, N.A.
600 Peachtree Street, N.E., 21st Floor
Atlanta, Georgia 30308-2213
Attention: Corporate Banking
<PAGE> 131
EXHIBIT F
FORM OF REVOLVING CREDIT NOTES
_______________(1)
June 26, 1997
FOR VALUE RECEIVED, PROFFITT'S, INC., a Tennessee corporation (the
"Borrower"), hereby promises to pay to the order of _________________________(2)
(the "Lender"), in its individual capacity, at the office of NationsBank of
Texas, National Association, as agent for the Lenders (the "Agent"), located at
901 Main Street, Dallas, Texas 75202 (or at such other place or places as the
Agent may designate) at the times set forth in the Second Amended and Restated
Credit Facilities and Reimbursement Credit Agreement dated as of June 26, 1997
among the Borrower, the financial institutions party thereto (collectively, the
"Lenders") and the Agent (as amended and supplemented and in effect from time to
time, the "Credit Agreement"; all capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement), in lawful
money of the United States of America, in immediately available funds, the
principal amount of [_________________________________________](3) DOLLARS
($__________)(1) or, if less than such principal amount, the aggregate unpaid
principal amount of all Revolving Credit Loans made by the Lender to the
Borrower pursuant to the Credit Agreement on the Revolving Credit Termination
Date or such earlier date as may be required pursuant to the terms of the Credit
Agreement, and to pay interest from the date hereof on the unpaid principal
amount hereof, in like money, at said office, on the dates and at the rates
provided in Article II of the Credit Agreement. All or any portion of the
principal amount of Loans may be prepaid as provided in the Credit Agreement.
This Note is one of the Revolving Credit Notes in the aggregate
principal amount of $400,000,000 referred to in the Credit Agreement and is
issued pursuant to and entitled to the benefits of the Credit Agreement to which
reference is hereby made for a more complete statement of the terms and
conditions upon which the Loans evidenced hereby were or are made and are to be
repaid. Payment of all amounts due under this Note is guaranteed by each
Guarantor pursuant to the Guaranty.
- -------------------------------
(1) Insert Lender's Revolving Credit Commitment in arabic numerals.
(2) Insert name of Lender in capital letters.
(3) Insert Lender's Revolving Credit Commitment in words.
<PAGE> 132
If payment of all sums due hereunder is accelerated under the terms of
the Credit Agreement or under the terms of the other Loan Documents executed in
connection with the Credit Agreement, the then remaining principal amount and
accrued but unpaid interest shall bear interest which shall be payable on demand
at the rates per annum set forth in Article II of the Credit Agreement, or the
maximum rate permitted under applicable law, if lower, until such principal and
interest have been paid in full. Further, in the event of such acceleration,
this Note, and all other Obligations of the Borrower to the Lender shall,
subject to the terms and conditions of the Loan Documents, become immediately
due and payable, without presentation, demand, protest or notice of any kind,
all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees
actually incurred, and interest thereon at the rates set forth above.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Revolving
Credit Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.01 of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of Georgia.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
<PAGE> 133
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
PROFFITT'S, INC.
ATTEST:
By:
- --------------------------- Title:
Secretary
- -----------
[SEAL]
<PAGE> 134
EXHIBIT G
FORM OF SWING LINE NOTE
$25,000,000
June 26, 1997
FOR VALUE RECEIVED, PROFFITT'S, INC., a Tennessee corporation (the
"Borrower"), hereby promises to pay to the order of NATIONSBANK OF TEXAS,
NATIONAL ASSOCIATION, (the "Lender"), in its individual capacity, at the office
of NationsBank of Texas, National Association, as agent for the Lenders (the
"Agent"), located at 901 Main Street, Dallas, Texas 75202 (or at such other
place or places as the Agent may designate) at the times set forth in the Second
Amended and Restated Credit Facilities and Reimbursement Agreement dated as of
June 26, 1997 among the Borrower, the financial institutions party thereto
(collectively, the "Lenders") and the Agent (as amended and supplemented and in
effect from time to time, the "Credit Agreement"; all capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Credit Agreement), in lawful money of the United States of America, in
immediately available funds, the principal amount of TWENTY-FIVE MILLION AND
NO/100 DOLLARS ($25,000,000) or, if less than such principal amount, the
aggregate unpaid principal amount of all Swing Line Loans made by the Lender to
the Borrower pursuant to the Credit Agreement on the Revolving Credit
Termination Date or such earlier date as may be required pursuant to the terms
of the Credit Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in Article II of the Credit Agreement. All or any portion of the
principal amount of Loans may be prepaid as provided in the Credit Agreement.
This Note is the Swing Line Note referred to in the Credit Agreement
and is issued pursuant to and entitled to the benefits of the Credit Agreement
to which reference is hereby made for a more complete statement of the terms and
conditions upon which the Loans evidenced hereby were or are made and are to be
repaid. Payment of all amounts due under this Note is guaranteed by each
Guarantor pursuant to the Guaranty.
If payment of all sums due hereunder is accelerated under the terms of
the Credit Agreement or under the terms of the other Loan Documents executed in
connection with the Credit Agreement, the then remaining principal amount and
accrued but unpaid interest shall bear interest which shall be payable on demand
at the rates per annum set forth in Article II of the Credit Agreement, or the
maximum rate permitted under applicable law, if lower, until such principal and
interest have been paid in full. Further, in the event of such acceleration,
this Note, and all other Obligations of the Borrower to the Lender shall,
subject to the terms and conditions of the Loan Documents, become immediately
due and payable, without presentation, demand, protest or notice of any kind,
all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees
actually incurred, and interest thereon at the rates set forth above.
<PAGE> 135
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Swing
Line Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.01 of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the
law of the State of Georgia.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
<PAGE> 136
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
PROFFITT'S, INC.
ATTEST:
By: By:
------------------------ ------------------------------
Title: Secretary Title:
--------------------- ---------------------------
[SEAL]
<PAGE> 137
EXHIBIT H
INTEREST RATE SELECTION NOTICE
To: NationsBank of Texas, National Association, as Agent
NationsBank Plaza
901 Main Street
67th Floor
Dallas, Texas 75202
Telefacsimile: 214-508-2515
Attention: Ms. Renita Cummings, Agency Services
Reference is hereby made to the Second Amended and Restated Credit
Facilities and Reimbursement Agreement dated as of June 26, 1997 (the "Credit
Agreement") among Proffitt's, Inc. (the "Borrower"), the Lenders (as defined in
the Credit Agreement), and NationsBank of Texas, National Association, as Agent
for the Lenders ("Agent"). Capitalized terms used but not defined herein shall
have the respective meanings therefor set forth in the Credit Agreement.
The Borrower through its Authorized Representative hereby confirms its
prior notice of a selection of a Type of Loan and Interest Period given to the
Agent by telephone approximately at __________ __.m. on _________________, 199__
to the following effect in respect of [CHECK AS APPLICABLE] Revolving Credit
Loans:
<TABLE>
<CAPTION>
Type of Loan Interest Effective
(Check One) Period(1) Amount(2) Date(3)
-------------------------------------------------------
<S> <C> <C> <C>
Eurodollar
Loan ____
Base Rate
Loan ____
</TABLE>
- -------------------------------
(1) For any Eurodollar Loan one, two, three or six months.
(2) Must be $5,000,000 or a multiple of $1,000,000 in excess
thereof.
(3) At least three (3) Eurodollar Business Days after date of
telephonic notice if a Eurodollar Loan; may be same Business
Day in case of a Base Rate Loan.
<PAGE> 138
This the _____ day of ______________, 199__.
PROFFITT'S, INC.
By:
Authorized Representative
<PAGE> 139
EXHIBIT I
FORM OF OPINION OF COUNSEL TO THE
BORROWER AND COUNSEL TO THE GUARANTORS
[SEE ATTACHED]
<PAGE> 140
June __, 1997
Each of the Lenders party to the
Credit Agreement referenced below
and NationsBank of Texas,
National Association, as Agent
901 Main Street
Dallas, Texas 75202
RE: $400,000,000 AMENDED AND RESTATED CREDIT FACILITIES AND
REIMBURSEMENT AGREEMENT BY AND AMONG PROFFITT'S, INC., THE
AGENT AND THE LENDERS PARTY THERETO DATED AS OF JUNE __, 1997,
AS THE SAME MAY BE AMENDED, MODIFIED, SUPPLEMENTED OR RESTATED
FROM TIME TO TIME (THE "CREDIT AGREEMENT")
Ladies and Gentlemen:
We have acted as counsel to Proffitt's, Inc. (the "Company") in
connection with the Credit Agreement and the other Company Loan Documents (as
defined herein) and as such counsel, we have reviewed such documents.
This opinion is being delivered in accordance with the condition set
forth in Section 5.01(a)(ii) of the Credit Agreement. All capitalized terms not
otherwise defined herein shall have the meanings provided therefor in the Credit
Agreement.
We have also acted as counsel to each of McRae's, Inc., McRae's of
Alabama, Inc., Younkers, Inc., Parisian, Inc., Proffitt's of Tri-Cities, Inc.,
McRae's Stores Partnership and G.R. Herberger's, Inc. (each a "Guarantor" and
collectively, the "Guarantors") in connection with the Guaranty, a copy of which
we have reviewed.
In addition, for purposes of giving this opinion, we have examined the
corporate or partnership records, as applicable, of each Credit Party and
examined such other documents and made such inquiries as we have deemed
appropriate.
As used in this opinion, the following terms have the following
meanings:
"Code" means Article 9 of the Uniform Commercial Code as in effect in
the State of Georgia.
"Company Loan Documents" means collectively the following:
(a) the Credit Agreement;
(b) each Revolving Credit Note;
<PAGE> 141
Each of the Lenders party to the Credit
Agreement referenced below and NationsBank
of Texas, National Association, as Agent
June __, 1997
Page 2
(c) the Swing Line Note; and
(d) the LC Account Agreement.
"Credit Parties" means collectively the Company and each Guarantor.
"Loan Documents" means the Company Loan Documents and the Guaranty.
In rendering this opinion, we have with your approval and without
independent investigation, assumed the legal capacity of all natural persons,
the genuineness of all signatures other than those on the Loan Documents of an
officer of any of the Credit Parties and the authenticity of all documents
purporting to be originals. We have also assumed that the representations and
warranties of the Credit Parties as to matters of fact in the Loan Documents are
true and correct insofar as material to our opinion regarding matters of fact,
from and after the dates such representations and warranties were made through
the date hereof, and we advise you that nothing has come to our attention to
indicate that such representations and warranties are not true and correct.
We have, with our permission, further assumed, without independent
investigation or inquiry with respect to any such matter that:
A. Each party to the Loan Documents other than the Credit Parties
possesses full corporate power and authority to execute, deliver and perform
each of its respective obligations under each of the Loan Documents to which it
is a party; the execution and delivery of the Loan Documents and the performance
of such obligations by each party thereto have been duly authorized by all
necessary action on the part of each party thereto other than the Credit
Parties; each of such Loan Documents has been duly executed and delivered by
each party thereto other than the Credit Parties; and each of such Loan
Documents is the legal, valid and binding obligation of each such party other
than the Credit Parties, enforceable against each such party other than the
Credit Parties in accordance with its terms.
B. The execution and delivery of the Loan Documents by the Agent and
each of the Lenders and the performance by the Agent and each of the Lenders of
their respective obligations thereunder comply with all laws and regulations
that are applicable to the Lenders and the transactions contemplated by the Loan
Documents because of the nature of the business of the Lenders.
C. With respect to questions of fact material to the opinions expressed
below, we have, with your consent, relied upon certificates of public officials
and officers or partners, as applicable, of each Credit Party, in each case
without having independently verified the
<PAGE> 142
Each of the Lenders party to the Credit
Agreement referenced below and NationsBank
of Texas, National Association, as Agent
June __, 1997
Page 3
accuracy of completeness thereof, and we advise you that nothing has come to our
attention to indicate that such certificates and the matters expressed therein
are not accurate and complete.
D. The compliance with any Federal Reserve Regulation, except with
respect to regulations G, T, U or X of the Board of Governors of the Federal
Reserve System, of the United States.
E. The legality, validity, binding effect or enforceability of any
provision of any Loan Document to the extent that it provides for a rate of
interest, after failure to pay principal when due or other occurrence of a
default, that is in excess of the rate of interest otherwise payable, to the
extent such rate is found to constitute a penalty.
Our opinion set forth in Paragraph 1 below with respect to the
qualification of the Credit Parties to do business and the good standing of the
Credit Parties in all foreign jurisdictions is based solely on certificates to
such effect examined by us and issued by the Secretary of State of each such
foreign jurisdiction (copies of which have been provided to the Agent), and such
opinion is limited to the meaning ascribed to such certificate by such Secretary
of State.
Based upon and subject to the foregoing it is our opinion that:
1. Each Credit Party is a corporation or partnership, as applicable,
duly organized, validly existing and in good standing under the laws of the
State of its organization and is duly qualified to transact business as a
foreign corporation or partnership, as applicable, and is in good standing in
all other jurisdictions in which the nature of its business requires such
qualification and where the failure to be so qualified would have a Material
Adverse Effect on such Credit Party. Each Credit Party has full corporate or
partnership, as applicable, power and authority to enter into the Loan Documents
to which it is party and to perform its respective obligations thereunder.
2. Each of the Company Loan Documents has been duly authorized,
executed and delivered by the Company, and constitutes the legal, valid and
binding obligation, agreement, instrument or conveyance, as the case may be, of
the Company, enforceable against the Company in accordance with its respective
terms, except (i) as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar
laws relating to or affecting creditors' rights generally and (ii) as the
enforceability of the remedial provisions thereof may be limited by general
equitable principles.
3. The Guaranty has been duly authorized, executed and delivered by
each Guarantor and constitutes the legal, valid and binding obligation and
agreement of each Guarantor, enforceable against
<PAGE> 143
Each of the Lenders party to the Credit
Agreement referenced below and NationsBank
of Texas, National Association, as Agent
June __, 1997
Page 4
each Guarantor in accordance with its respective terms, except (i) as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization and other similar laws relating to or
affecting creditors' rights generally and (ii) as the enforceability to the
remedial provisions thereof may be limited by general equitable principles.
4. Neither the execution or delivery of, nor performance by the Company
or any Guarantor of its respective obligations under, the Loan Documents, (a)
does or will conflict with, violate or constitute a breach of (i) the charter,
articles of organization, partnership agreement or bylaws, as applicable, of the
Company or of any Guarantor, (ii) any laws, rules or regulations applicable to
the Company or any Guarantor with respect to which any conflict, violation or
breach could reasonably be expected to result in a Material Adverse Effect, or
(iii) any contract, agreement, indenture, lease, instrument, other document,
judgment, writ, determination, order or decree to which the Company or any
Guarantor or any of their respective properties is bound, or (b) requires the
prior consent of, notice to or filing with any court, or any governmental
authority, or (c) does or will result in the creation or imposition of any lien,
pledge, charge or encumbrance of any nature upon or with respect to any of the
properties, real or personal, of the Company or any Guarantor, except for the
liens in favor of the Agent and the Lenders created pursuant to the Loan
Documents.
5. There is no pending or, to our knowledge after due inquiry,
threatened, action, suit, investigation or proceeding, before or by any court,
or governmental department, commission, board, bureau, instrumentality, agency
or arbitral authority, (i) which calls into question the validity or
enforceability of any of the Loan Documents, or the titles to their respective
offices or other positions or authority of any officers or partners, as
applicable, of the Company or any Guarantor or (ii) an adverse result in which
could reasonably be expected to have a Material Adverse Effect on the property,
business, prospects, profits or conditions (financial or otherwise) of the
Company or any Guarantor, including, without limitation, any action, suit,
investigation, or proceeding under any environmental or labor law.
6. None of the provisions of the Loan Documents violate any laws of the
State of Georgia relating to interest or usury.
7. None of the transactions contemplated by the Credit Agreement,
including, without limitation, the use of the proceeds of any Loan made to the
Company, will violate or result in a violation of Section 7 of the Securities
Exchange Act of 1934, as amended, any regulations issued pursuant thereto, or
regulations G, T, U or X of the Board of Governors of the Federal Reserve System
and to our knowledge after due inquiry the Company does not own or intend to
purchase or carry any "margin securities" as defined in said regulations.
Our opinion is subject to the following qualifications and limitations:
A. Whenever any statement in this opinion letter is qualified by the
phrase "to our
<PAGE> 144
Each of the Lenders party to the Credit
Agreement referenced below and NationsBank
of Texas, National Association, as Agent
June __, 1997
Page 5
knowledge," or a phrase of similar import, such phrase is intended to mean the
actual knowledge of information by the lawyers in our firm who have given
substantive legal attention to matters on behalf of any of the Credit Parties,
but does not include other information that might be revealed if there were to
be undertaken a canvass of all lawyers in our firm or a general search of our
files. Moreover, we have not undertaken any independent investigation to
determine the accuracy or completeness of such knowledge, and any limited
inquiries made by us should not be regarded as such an investigation. Any
certificates or representations obtained by us from officers of any of the
Credit Parties or others with respect to such opinions have been relied upon by
us without independent verification, although nothing has come to our attention
to indicate that such certificates and warranties are not true and correct.
B. We are not expressing any opinion as to any matter relating to any
jurisdiction other than the laws of the United States of America and the laws of
the State of Georgia and the business laws of the State of Delaware, and we
assume no responsibility as to the applicability of the laws of any other
jurisdiction as to the subject transaction or the effect of such laws thereon.
C. Our opinions contained herein are rendered only as of the date
hereof and we undertake no obligation to revise or supplement this opinion after
the date hereof.
D. Our opinions contained herein are rendered solely for your
information in connection with the Loan Documents and may not be relied upon in
any manner by any other person, entity or agency, or by you for any other
purpose. Without our prior written consent, our opinions herein shall not be
quoted or otherwise included, summarized or referred to in any publication or
document, in whole or in part, for any purposes whatsoever, or furnished to any
other person, entity or agency, except as may be required by you by applicable
law or regulation or request of regulatory agencies to which you are subject.
Very truly yours,
<PAGE> 145
EXHIBIT J
COMPLIANCE CERTIFICATE
[SEE ATTACHED]
<PAGE> 146
NationsBank of Texas, National Association
as Agent
NationsBank Plaza
901 Main Street, 67th Floor
Dallas, Texas 75202
Telefacsimile: 214-508-2515
Attention: Ms. Renita Cummings, Agency Services
Reference is hereby made to the Second Amended and Restated Credit
Facilities and Reimbursement Credit Agreement dated as of June 26, 1997 (the
"Credit Agreement") among Proffitt's, Inc. (the "Borrower"), the Lenders (as
defined in the Credit Agreement) and NationsBank of Texas, National Association,
as Agent for the Lenders ("Agent"). Capitalized terms used but not defined
herein shall have the respective meanings therefor set forth in the Credit
Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you, in his or her capacity as an officer of
the Borrower and not in his or her individual capacity, as of
_________________________ [INSERT DETERMINATION DATE] as follows:
1. Calculations
<TABLE>
<S> <C>
A. Compliance with Section 8.01: Consolidated Net Worth
1. Shareholders' equity of the Borrower $
and its Subsidiaries determined on a ----------
consolidated basis in accordance with
Generally Accepted Accounting
Principles applied on a Consistent
Basis less
2. The amount, if any, of any upward
adjustment after the Closing Date due
to the revaluation of assets $
----------
3. Consolidated Net Worth
(A.1-A.2) $
----------
REQUIRED:
(i) $486,000,000 ; PLUS
$
----------
(ii) 100% OF NET
PROCEEDS OF SALE OF CAPITAL STOCK OR OTHER EQUITY $
INTEREST SINCE FEBRUARY 1, 1997; PLUS ----------
</TABLE>
<PAGE> 147
<TABLE>
<S> <C> <C>
(iii) 50% OF
CONSOLIDATED NET INCOME (WITHOUT
DEDUCTION FOR ANY NEGATIVE
CONSOLIDATED NET INCOME) FOR EACH $
----------
FULL FISCAL QUARTER ENDING AFTER
FEBRUARY 1, $__________ 1997;
TOTAL REQUIREMENT $
==========
B. Compliance with Section 8.02: Consolidated Funded
Senior Indebtedness at Determination Date to Consolidated EBITDA for
the Four-Quarter Period ended on the Determination Date
1. Consolidated Funded Total Indebtedness $
----------
2. Convertible Subordinated Debentures $
----------
3. Junior Subordinated Debentures $
----------
4. Parisian Senior Subordinated Notes $
----------
5. Other Consolidated Subordinated Debt $
----------
6. Consolidated Funded Senior Indebtedness
(B.1-B.2-B.3-B.4-B.5) $
----------
7. Consolidated EBITDA*:
(i) Consolidated Net Income, plus $
----------
(ii) Consolidated Interest Expense, plus $
----------
(iii) Income Taxes, plus $
----------
(iv) Amortization, plus $
----------
(v) Depreciation, plus $
----------
(vi) Extraordinary and unusual
charges incurred by the Borrower directly as
a a result of(i) the Parisian, Younkers or
Herbergers Acquisitions or (ii) any Permitted
Acquisition in an amount up to and including $
10% of the Cost of Acquisition for such ----------
Acquisition
Total $
==========
8. Ratio of Consolidated Funded Senior
Indebtedness (B.6) to Consolidated EBITDA
(B.7) ___ to 1.00
REQUIRED: NOT GREATER THAN: 3.50 TO 1.00
</TABLE>
<PAGE> 148
<TABLE>
<S> <C>
C. Compliance with Section 8.03. Consolidated
Fixed Charge Ratio for each Four-Quarter Period
1. Consolidated EBITDA* (See Total from B.7): $
----------
2. Consolidated Financing Charges $
----------
3. Lease, rental and all other payments made in
connection with operating leases and deducted in $
computing Consolidated EBITDA ----------
4. C.1+C.2+C.3. $
----------
5. Consolidated Fixed Charges*:
(i) Consolidated Interest Expense, plus $
----------
(ii) Lease, rental and all other
payments made in connection with operating $
leases and deducted in computing ----------
Consolidated EBITDA, plus
(iii) Current maturities of
Consolidated Funded Total Indebtedness, plus $
----------
(iv) Cash dividends and other
distributions paid on any shares of capital $
stock, plus ----------
(v) Consolidated Financing Charges $
----------
Total $
==========
6. Ratio of C.4. to C.5. ____ to 1.00
REQUIRED: NOT LESS THAN:
CLOSING DATE THROUGH FISCAL YEAR END 1997 1.25 TO 1.00
AT ALL TIMES AFTER FISCAL YEAR END 1997 1.50 TO 1.00
D. Compliance with Section 8.04 Capital Expenditures
1. Total Capital Expenditures during Fiscal
Year _____ (INSERT APPROPRIATE YEAR) $
----------
2. Cumulative Capital Expenditures actually
made during Fiscal Years 1997 and thereafter
(until but excluding the Fiscal Year referred to in
D.1. above) $
----------
</TABLE>
<PAGE> 149
<TABLE>
<S> <C> <C> <C>
3. Cumulative Capital Expenditures permitted
during Fiscal Years 1997 and thereafter
(until but excluding the Fiscal Year referred to in
D.1. above) $
----------
REQUIRED: LINE D.1. CANNOT EXCEED (i)
$125,000,000 FOR EACH OF FISCAL YEAR 1997
AND FISCAL YEAR 1998 AND $150,000,000
THEREAFTER PLUS (ii) THE CUMULATIVE
DIFFERENCE IN EACH FISCAL YEAR SINCE CLOSING DATE
BETWEEN PERMITTED (LINE D.1.) AND ACTUAL
(LINE D.2.) CAPITAL EXPENDITURES.
E. Compliance with Section 8.05. Consolidated Funded
Total Indebtedness at Determination Date to EBITDA for the Four-Quarter
Period ended on the Determination Date
1. Consolidated Funded Total Indebtedness $
----------
2. Consolidated EBITDA for Four Quarter
Period (See Total for Line B.7): $
==========
3. Ratio of E.1 to E.2 ___ to 1.00
REQUIRED: NOT GREATER THAN: 4.00 TO 1.00
</TABLE>
2. No Default
A. To the best knowledge of the undersigned, on the
date hereof, no Default or Event of Default exists [or] the
following Defaults or Events of Default have occurred and are
continuing:________________________
B. If a Default or Event of Default has occurred and
is continuing, the Borrower proposes to take the following
action with respect to such Default or Event of Default:
3. Rating on long term senior indebtedness:
(i) _______:
(ii)_______:
(INSERT NAMES OF RATING AGENCIES, ONE OF WHICH MUST BE MOODY'S
OR S&P)
The undersigned Authorized Representative hereby certifies that the
information set forth above is true, correct and complete as of the date hereof.
<PAGE> 150
IN WITNESS WHEREOF, I have executed this Certificate this 26th day of
June, 1997.
Authorized Representative for
Proffitt's, Inc.
<PAGE> 151
EXHIBIT K
BORROWING BASE CERTIFICATE
[SEE ATTACHED]
<PAGE> 152
To: NationsBank of Texas, National Association,
as Agent
NationsBank Plaza
901 Main Street, 67th Floor
Dallas, Texas 75202
Telefacsimile: 214-508-2515
Attention: Ms. Renita Cummings, Agency Services
Reference is hereby made to the Second Amended and Restated Credit
Facilities and Reimbursement Credit Agreement dated as of June 26, 1997 (the
"Credit Agreement") among Proffitt's, Inc. (the "Borrower"), the Lenders (as
defined in the Credit Agreement) and NationsBank of Texas, National Association,
as Agent for the Lenders ("Agent"). Capitalized terms used but not defined
herein shall have the respective meanings therefor set forth in the Credit
Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you, in his or her capacity as an officer of
the Borrower and not in his or her individual capacity, the calculation of the
Borrowing Base as of ____________________ as follows:
<TABLE>
<S> <C> <C> <C>
1. Borrowing Base
A. Inventory $__________
B. Eligible Inventory $__________
C. Commercial L/C's $__________
D. Borrowing Base Factor 60%
E. Borrowing Base: (1.B.-1.C. X 1.D) $__________
2. Availability
A. Total Revolving Credit Commitment $__________
B. Revolving Credit Outstandings $__________
C. Outstanding Letters of Credit $__________
D. Swing Line Outstandings $__________
E. Outstandings (2.B. + 2.C. + 2.D.) $__________
F. Lesser of Borrowing Base (1.E.)
or Total Revolving Credit Commitment (2.A.) $__________
G. Availability (2.F.-2.E.) $__________
</TABLE>
<PAGE> 153
3. Ratings on long term senior indebtedness:
(i) _________: ____________
(ii)__________:__________
(Insert names of Rating Agencies, one of which must be Moody's
or S&P)
[Note: No Borrowing Base limitation shall apply or be in effect after both
Rating Agencies assign an Investment Grade Rating to each class of the
Borrower's long term senior unsecured Indebtedness for Borrowed Money.]
4. Amount of Advance (must be less than 2.G.) $__________
The undersigned Authorized Representative hereby certifies that the
information set forth above is true, correct and complete as of the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate this 26th day of
June, 1997.
Authorized Representative for Proffitt's, Inc.
<PAGE> 1
Exhibit 10.2
LC Account Agreement, dated June 26, 1997, by and between Proffitt's, Inc. and
NationsBank of Texas, National Association, as Agent.
<PAGE> 2
EXHIBIT 10.2
LC ACCOUNT AGREEMENT
This LC ACCOUNT AGREEMENT (the "Agreement") is dated as of June 26, 1997,
and made between PROFFITT'S, INC., a Tennessee corporation (the "Pledgor") and
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, as Agent (in such capacity herein
and together with any successors in such capacity, the "Agent") for the Lenders
(the "Lenders") party to the Credit Agreement referenced below.
RECITALS
WHEREAS, Pledgor, the Lenders and the Agent have entered into a Credit
Agreement dated as of the date hereof (said Credit Agreement, as it may
hereafter be amended, amended and restated, supplemented or otherwise modified
from time to time in accordance with the terms thereof and in effect,
hereinafter referred to as the "Credit Agreement");
WHEREAS, as a condition precedent to the Lenders' obligations to make the
Loans or issue Letters of Credit (as such terms are defined in the Credit
Agreement), the Pledgor is required to execute and deliver to the Agent a copy
of this Agreement on or before the Effective Time (defined below);
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants contained herein, the Pledgor and the Agent hereby
agree as follows:
SECTION 1. CAPITALIZED TERMS USED IN THIS AGREEMENT SHALL HAVE THE
FOLLOWING MEANINGS:
"Cash Account" means the cash collateral account established and
maintained pursuant to Section 2 hereof.
"Collateral" means (a) all funds from time to time on deposit in the Cash
Account; (b) all Investments and all certificates and instruments from time to
time representing or evidencing such Investments; (c) all notes, certificates of
deposit, checks and other instruments from time to time hereafter delivered to
or otherwise possessed by the Agent for or on behalf of the Pledgor in
substitution for or in addition to any or all of the Collateral described in
clause (a) or (b) above; (d) all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of the Collateral described in
clause (a), (b) or (c) above; and (e) to the extent not covered by clauses (a)
through (d) above, all proceeds of any or all of the foregoing Collateral.
"Effective Time" means the Closing Date as defined in the Credit
Agreement.
"Investments" means those investments, if any, made by the Agent pursuant
to Section 5 hereof.
<PAGE> 3
"Secured Obligations" means (i) all obligations of the Pledgor now
existing or hereafter arising under or in respect of the Credit Agreement or the
Notes (including, without limitation, the Pledgor's obligations to pay principal
and interest and all other charges, fees, expenses, commissions, reimbursements,
indemnities and other payments related to or in respect of the obligations
contained in the Credit Agreement or the Notes) or any documents or agreement
related to the Credit Agreement or the Notes; and (ii) without duplication, all
obligations of the Pledgor now or hereafter existing under or in respect of this
Agreement, including, without limitation, with respect to all charges, fees,
expenses, commissions, reimbursements, indemnities and other payments related to
or in respect of the obligations contained in this Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Credit Agreement.
SECTION 2. CASH ACCOUNT; CASH COLLATERALIZATION OF LETTERS OF CREDIT.
(i) At such time as there shall be deposited with the Agent
funds pursuant to this Agreement, the Agent shall establish and
maintain at its offices at [NATIONSBANK PLAZA, 901 MAIN STREET, DALLAS,
TEXAS], in the name of the Agent and under the sole dominion and
control of the Agent, a cash collateral account for the Pledgor
designated as NationsBank/Proffitt's Cash Account (the "Cash Account").
(ii) In accordance with Article IX of the Credit Agreement, in
the event that an Event of Default has occurred and is continuing and
Pledgor is required to pay to Agent an amount equal to the maximum
amount remaining undrawn, unpaid or at any time that may become payable
under the Letters of Credit, the Agent shall, upon receipt of any such
amounts, exercise the remedies set forth in Section 12 hereof. Any such
amounts received by the Agent pursuant to Article IX of the Credit
Agreement shall be deposited in the Cash Account. Upon a drawing under
the Letters of Credit in respect of which any amounts described above
have been deposited in the Cash Account, the Agent shall apply such
amounts to reimburse the Agent for the amount of such drawing. In the
event the Pledgor's Letters of Credit are cancelled or expire or in the
event of any reduction in the maximum amount available at any time for
drawing under such Letters of Credit (collectively, the "Maximum
Available Amount"), the Agent shall apply the amount then in the Cash
Account designated to reimburse the Agent for any drawings under the
Letters of Credit less the Maximum Available Amount immediately after
such cancellation, expiration or reduction, if any, first, to the cash
collateralization of the Letters of Credit if the Pledgor has failed to
pay all or a portion of the maximum amounts described above and,
second, (a) so long as no Event of Default is in existence and so long
as no application of the Collateral shall be made within 25 days of the
expiration of the Pledgor's Letters of Credit then the Agent shall
return to the Pledgor such amount not applied to drawings and other
amounts owing with respect to Letters of Credit and (b) otherwise, the
payment in full of the outstanding Secured Obligations.
(iii) Interest received in respect of Investments of any
amounts deposited the Cash Account pursuant to clause (ii) of this
Section 2 shall be delivered by the Agent to the Pledgor on the last
Business Day of each calendar month or, if earlier, upon cancellation
or expiration of or drawing of the Maximum Available Amount for drawing
under the
<PAGE> 4
Letters of Credit, as the case may be, in respect of which such amounts
were so deposited; provided, however, that the Agent shall not deliver to
the Pledgor any such interest received in respect of Investments of any
amounts deposited in the Cash Account pursuant to this Section 2 if an
Event of Default has occurred and is continuing or unless all outstanding
Secured Obligations have been indefeasibly paid in full in cash.
SECTION 3. PLEDGE; SECURITY FOR SECURED OBLIGATIONS. The pledgor hereby
grants and pledges to the agent (for itself and on behalf of the lenders) a
first priority lien and security interest in, the collateral, as collateral
security for the prompt payment in full when due, whether at stated maturity,
by acceleration or otherwise (including, without limitation, the payment of
interest and other amounts which would accrue and become due but for the filing
of a petition in bankruptcy or the operation of the automatic stay under
Section 362(a) of the bankruptcy code), of all secured obligations.
SECTION 4. DELIVERY OF COLLATERAL. All certificates or instruments, if
any, representing or evidencing the collateral shall be delivered to and held by
the agent pursuant hereto and shall be a suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance reasonably satisfactory to the agent. In the
event any collateral is not evidenced by a certificate, a notation, reflecting
title in the name of the agent or the security interest of the agent, shall be
made in the records of the issuer of such collateral or in such other
appropriate records as the agent may require, all in form and substance
reasonably satisfactory to the agent. The agent shall have the right, at any
time and without notice to a pledgor, to transfer to or to register in the name
of the agent or any of its nominees any or all of the collateral. In addition,
the agent shall have the right at any time to exchange certificates or
instruments representing or evidencing collateral for certificates or
instruments of smaller or larger denominations.
SECTION 5. INVESTING OF AMOUNTS IN THE CASH ACCOUNT; AMOUNTS HELD BY THE
AGENT. Cash held by the agent in a cash account shall not be invested or
reinvested except as provided in this Section 5.
(i) Except as otherwise provided in Section 12 hereof and
provided that the lien and security interest in favor of the Lenders
remains perfected, any funds on deposit in the Cash Account shall be
invested by the Agent so long as no Default or Event of Default shall
have occurred and be continuing, in cash equivalents.
(ii) The Agent is hereby authorized to sell, and shall sell, all
or any designated part of the Collateral (A) so long as no Default or
Event of Default shall have occurred and be continuing, upon the receipt
of appropriate written instructions from the Pledgor or (B) in any event
if such sale is necessary to permit the Agent to perform its duties
hereunder or under the Credit Agreement. The Agent shall have no
responsibility and the Pledgor hereby agrees to hold the Agent and the
Lenders harmless for any loss in the value of the Collateral resulting
from a fluctuation in interest rates or otherwise. Any interest on
securities constituting part of the Collateral and the net proceeds of
the sale or payment of any such securities shall be held in the Cash
Account by the Agent.
<PAGE> 5
SECTION 6. REPRESENTATIONS AND WARRANTIES. In addition to its
representations and warranties made pursuant to Article VI of the credit
agreement, the pledgor represents and warrants to the agent (for itself and as
agent on behalf of the lenders), that the following statements are true, correct
and complete:
(i) At the time the Pledgor delivers the Collateral (or any
portion thereof) to the Agent, the Pledgor will be the legal and
beneficial owner of the Collateral free and clear of any Lien except
for the lien and security interest created by this Agreement; and
(ii) The pledge and assignment of the Collateral pursuant to this
Agreement creates a valid and perfected first priority security
interest in the Collateral, securing the payment of the Secured
Obligations.
SECTION 7. FURTHER ASSURANCES. The pledgor agrees that at any time and
from time to time, at its expense, it will promptly execute and deliver to the
agent any further instruments and documents, and take any further actions, that
may be necessary or that the agent may reasonably request, in order to perfect
and protect any security interest granted or purported to be granted hereby or
to enable the agent to exercise and enforce its rights and remedies hereunder
with respect to the collateral.
SECTION 8. TRANSFERS AND OTHER LIENS. The pledgor agrees that it will
not (a) sell or otherwise dispose of any of the collateral, or (b) create or
permit to exist any lien upon or with respect to any of the collateral, except
for the lien and security interest created by this agreement.
SECTION 9. THE AGENT APPOINTED ATTORNEY-IN FACT. The pledgor hereby
appoints the agent as its attorney-in-fact, with full authority in the place and
stead of the pledgor and in the name of the pledgor or otherwise, from time to
time in the agent's reasonable discretion to take any action and to execute any
instrument which the agent may reasonably deem necessary or advisable to
accomplish the purposes of this agreement, including, without limitation, to
receive, endorse and collect all instruments made payable to the pledgor
representing any payment, dividend, or other distribution in respect of the
collateral or any part thereof and to give full discharge for the same. In
performing its functions and duties under this agreement, the agent shall act
solely for itself and as the agent of the lenders and the agent has not assumed
nor shall be deemed to have assumed any obligation towards or relationship of
agency or trust with or for the pledgor.
SECTION 10. THE AGENT MAY PERFORM. If the pledgor fails to perform any
agreement contained herein, after notice to the pledgor, the agent may itself
perform, or cause performance of, such agreement, and the expenses of the agent
incurred in connection therewith shall be payable by the pledgor under section
13 hereof.
SECTION 11. STANDARD OF CARE; NO RESPONSIBILITY FOR CERTAIN MATTERS. In
dealing with the collateral in its possession, the agent shall exercise the same
care which it would exercise in dealing with similar collateral property pledged
by others in transactions of a similar nature, but it shall not be responsible
for (a) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other
<PAGE> 6
matters relative to any collateral, whether or not the agent has or is deemed to
have knowledge of such matters, (b) taking any steps to preserve rights against
any parties with respect to any collateral (other than steps taken in accordance
with the standard of care set forth above to maintain possession of the
collateral), (c) the collection of any proceeds, (d) any loss resulting from
investments made pursuant to section 5 hereof, or (e) determining (x) the
correctness of any statement or calculation made by the pledgor in any written
or telex (tested or otherwise) instructions, or (y) whether any deposit in a
cash account is proper.
SECTION 12. REMEDIES UPON DEFAULT; APPLICATION OF PROCEEDS. If any event
of default shall have occurred and be continuing:
(i) The Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein otherwise
available to it, all the rights and remedies of a secured party on
default under the applicable Uniform Commercial Code (the "Code") as in
effect at that time, and the Agent may, without notice except as
specified below, sell the Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange or broker's board or
at any of the Agent's offices or elsewhere, for cash, on credit or for
future delivery, and at such price or prices, and upon such other terms
as the Agent may deem commercially reasonable. The Pledgor agrees that,
to the extent notice of sale shall be required by law, at least ten (10)
days' notice to the Pledgor of the time and place of any public sale or
the time after which any private sale is to be made shall constitute
reasonable notification. The Agent shall not be obligated to make any
sale of the Collateral regardless of notice of sale having been given.
The Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(ii) In addition to the remedies set forth in part (i) above and
subject to the provisions of Section 2 hereof, any cash held by the Agent
as Collateral and all cash proceeds received by the Agent in respect of
any sale of, collection from, or other realization upon all or part of
the Collateral shall be applied (after payment of any amounts payable to
the Agent pursuant to Section 13 hereof) by the Agent to cash
collateralize the Pledgor's Letters of Credit and thereafter to pay the
Secured Obligations. Any surplus of such cash or cash proceeds held by
the Agent and remaining after payment in full of all Secured Obligations
shall be paid over to the Pledgor or to whomsoever may be lawfully
entitled to receive such surplus.
SECTION 13. EXPENSES. In addition to any payments of expenses of the
agent pursuant to the credit agreement or any loan document, the pledgor agrees
to pay promptly to the agent all the costs and expenses which the agent may
incur in connection with (a) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the collateral, (b) the
exercise or enforcement of any of the rights of the agent hereunder, or (c) the
failure by the pledgor to perform or observe any of the provisions hereof.
<PAGE> 7
SECTION 14. NO DELAY'S WAIVER, ETC. No delay or failure on the part of
the agent in exercising, and no course of dealing with respect to, any power or
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise by the agent of any power or right hereunder preclude other or
further exercise thereof or the exercise of any other power or right. The
remedies herein provided are to the fullest extent permitted by law cumulative
and are not exclusive of any remedies provided by law.
SECTION 15. AMENDMENTS, ETC. No amendment, modification, termination or
waiver of any provision of this agreement, or consent to any departure by the
pledgor therefrom, shall in any event be effective without the written
concurrence of the agent.
SECTION 16. NOTICES. Except as otherwise specifically provided herein,
all notices which are to be sent to the pledgor or the agent shall be given in
accordance with the credit agreement.
SECTION 17. CONTINUING SECURITY INTEREST; TERMINATION. This agreement
shall create a continuing security interest in the collateral and shall (a)
remain in full force and effect until all secured obligations shall have been
indefeasibly paid in full in cash, the revolving credit commitments or other
obligations of the agent or any lender to make any loan under the credit
agreement shall have expired, the letters of credit shall have expired and the
revolving credit termination date shall have occurred, (b) be binding upon the
pledgor, its successors and assigns, and (c) inure to the benefit of the agent,
the lenders and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c) and subject to the
provisions of the credit agreement, any lender may assign or otherwise transfer
any note held by it to any other person or entity, and such other person or
entity shall thereupon become vested with all the benefits in respect thereof
granted to such lender herein or otherwise. Upon the indefeasible payment in
full in cash of the secured obligations and cancellation or expiration of the
letters of credit and termination or expiration of all revolving credit
commitments and other obligations of the agent and any lender to make any loan
and the occurrence of the revolving credit termination date, the pledgor shall
be entitled to the return, upon its request and at its expense, of such of its
collateral as shall not have been sold or otherwise applied pursuant to the
terms hereof.
SECTION 18. GOVERNING LAW; TERMS. This agreement shall be governed by,
and shall be construed and enforced in accordance with, the laws of the state of
georgia without regard to any otherwise applicable principles of conflicts of
laws, except to the extent that the validity or perfection of the security
interest hereunder, or remedies hereunder, in respect of any particular
collateral are governed by the laws of a jurisdiction other than the state of
georgia. Unless otherwise defined herein or in the credit agreement, terms
defined in article 9 of the code are used herein as therein defined.
<PAGE> 8
SECTION 19. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY PLEDGOR WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF GEORGIA AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, THE PLEDGOR ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY AND
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT SUBJECT TO RIGHT OF
APPEAL. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO
BRING PROCEEDINGS AGAINST THE PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 20. SUCCESSORS AND ASSIGNS. Whenever in this agreement any of the
parties hereto is referred to, such reference shall be deemed to include the
successors and assigns of such party and all covenants, promises, and agreements
by or on behalf of the pledgor or by and on behalf of the agent shall bind and
inure to the benefit of the successors and assigns of the pledgor, the agent and
the lenders.
SECTION 21. EXECUTION IN COUNTERPARTS. This agreement may be executed in
any number of counterparts and by the different parties on separate counterparts
and each such counterpart shall for all purposes be deemed an original, but all
such counterparts shall together constitute but one and the same agreement. The
pledgor and the agent hereby acknowledge receipt of a true, correct, and
complete counterpart of this agreement.
SECTION 22. SEVERABILITY. Any provision of this agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 23. HEADINGS. The section headings in this agreement are inserted
for convenience of reference and shall not be considered a part of this
agreement or used in its interpretation.
[signatures follow]
<PAGE> 9
IN WITNESS WHEREOF, the Pledgor and the Agent have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
PROFFITT'S, INC.
ATTEST:
/s/ Brian J. Martin By: /s/ James S. Scully
- ------------------------- ------------------------------------
Brian J. Martin Name: James S. Scully
-----------------------------------
Title: Secretary
(SEAL) Assistant Secretary
<PAGE> 10
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION, as Agent for the Lenders
By: /s/ Nancy S. Goldman
----------------------------------
Name: Nancy S. Goldman
Title: Vice President
<PAGE> 1
EXHIBIT 99.1
PROFFITT'S, INC. FINALIZES REVOLVING CREDIT FACILITY
BIRMINGHAM, Ala.--June 26, 1997--Proffitt's, Inc. (NASDAQ:PRFT) today announced
the completion of its amended and restated Revolving Credit Facility (the
``Facility''). Under the amended terms, the Facility size has been increased to
$400 million from its current level of $275 million, the maturity has been
extended from October 1999 to June 2002, and the Company's spread over LIBOR
has been reduced. The Facility remains a senior unsecured obligation and is
available for working capital needs, acquisition financing, and general
corporate purposes.
The amended and restated Facility was structured, arranged, and
syndicated by NationsBanc Capital Markets, Inc. The syndication increased the
number of participating financial institutions from 14 to 21.
Proffitt's, Inc. Chairman and Chief Executive Officer, R. Brad Martin,
commented, ``The refinancing of the Revolving Credit Facility is consistent with
the capital structure strategy we previously announced. When combined with our
recently completed Senior Notes issue, it provides an appropriate
asset/liability balance and ample liquidity to operate and further grow our
business. We are extremely pleased with the response we have received in both
the bond and senior bank markets, and we believe it is reflective of the strong
financial performance and favorable prospects of our Company.''
Proffitt's, Inc. operates 175 stores in 24 states under the names of
Proffitt's, McRae's, Younkers, Parisian, and Herberger's. The Company generates
annualized revenues in excess of $2.3 billion.
Contact:
Proffitt's, Inc., Birmingham
Julia Bentley, 423/981-6243
