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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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Amendment No. 17*
to
Schedule 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
and
Statement on
Schedule 13D
Under the Securities Exchange Act of 1934
Big B, Inc.
(Name of Subject Company)
---------------
RDS Acquisition Inc.
Revco D.S., Inc.
(Bidders)
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Common Stock, Par Value $0.001 Per Share
(Including the Associated Common Stock Purchase Rights)
(Title of Class of Securities)
0888917106
(CUSIP Number of Class of Securities)
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Jack A. Staph, Esq.
Senior Vice President, Secretary and General Counsel
Revco D.S., Inc.
1925 Enterprise Parkway
Twinsburg, OH 44087
(216) 487-1667
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Bidders)
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Copy to:
Richard Hall, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019-7475
(212) 474-1293
* Constituting the final amendment to Schedule 14D-1.
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<PAGE>
RDS Acquisition Inc. (the "Purchaser") and Revco D.S., Inc.
("Parent") hereby amend and supplement their Tender Offer Statement on
Schedule 14D-1 and Statement on Schedule 13D (as amended prior to the
date hereof, the "Schedule 14D-1"), originally filed on September 10,
1996, with respect to their offer to purchase all outstanding shares
of Common Stock, par value $0.001 per share, including the associated
common stock purchase rights, of Big B, Inc., an Alabama corporation
(the "Company"), as set forth in this Amendment No. 17, which
constitutes the final amendment. Capitalized terms not defined herein
have the meanings assigned thereto in the Schedule 14D-1.
Item 4. Source and Amount or Funds or Other Consideration.
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(a) and (b) Parent entered into a $125 million Credit
Agreement (364 Day Facility) dated as of November 15, 1996 (the
"364-Day Agreement"), among Parent, Banque Paribas and Bank of America
Illinois (together the "364-Day Facility Lenders"), and Bank of
America National Trust and Savings Association, as administrative
agent. The 364-Day Agreement provides for the payment by Parent of (i)
a non-use fee on the aggregate unused commitment of the 364-Day
Facility Lenders under the 364-Day Agreement, (ii) a fronting fee with
respect to letters of credit and a letter of credit fee based on the
average outstanding amount of letters of credit and (iii) certain
other administrative fees. The interest rate on loans varies depending
on the type of loan, length of interest rate period chosen and current
market rate of certain types of loans. The 364-Day Agreement contains
customary conditions to borrowing, representations and warranties,
covenants and events of default. The commitment of the 364-Day
Facility Lenders under the 364-Day Agreement expires no later than
November 14, 1997. Parent has made no arrangements to refinance its
borrowings under the 364-Day Agreement.
A copy of the 364-Day Agreement is attached as Exhibit
(b)(3) to this Amendment No. 17 and is incorporated herein by
reference.
Item 6. Interest in Securities of the Subject Company.
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(a) and (b) On November 15, 1996, the Purchaser accepted for
payment a total of 17,232,501 Shares. Together with the 1,190,000
Shares previously owned by the Purchaser, the Purchaser now owns
18,422,501 Shares, representing approximately 87.9% of the outstanding
Shares.
Item 11. Material to be Filed as Exhibits.
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(b)(3) Credit Agreement (364 Day Facility) dated as of
November 15, 1996, among Parent, Banque Paribas and Bank of America
Illinois, as lenders, and Bank of America National Trust and Savings
Association, as administrative agent.
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Amendment No.
17 is true, complete and correct.
Dated: November 21, 1996
REVCO D.S., INC.,
by
/s/ Jack A. Staph
-----------------------------------
Name: Jack A. Staph
Title: Senior Vice President,
Secretary and General
Counsel
RDS ACQUISITION INC.,
by
/s/ Jack A. Staph
-----------------------------------
Name: Jack A. Staph
Title: Vice President and Secretary
<PAGE>
Exhibit Index
Page
Exhibit (b)(3) Credit Agreement (364 Day Facility) dated
as of November 15, 1996, among Parent,
Banque Paribas and Bank of America
Illinois, as lenders, and Bank of America
National Trust and Savings Association, as
administrative agent.
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CREDIT AGREEMENT (364 Day Facility)
dated as of November 15, 1996,
among
REVCO D.S., INC.,
as Borrower,
BANQUE PARIBAS
and
BANK OF AMERICA ILLINOIS,
as Lenders
and
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Administrative Agent
=========================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I INCORPORATION OF BANK CREDIT AGREEMENT.......1
1.1. Incorporation.........................1
ARTICLE II COMMITMENTS..................................3
2.1. Commitments...........................3
2.1.1. Revolving Credit Commitments...3
2.1.2. Lenders Not Required to Extend
Credit.........................3
2.2. Reduction of Total Revolving Credit
Commitment Amount.....................3
2.2.1. Optional Reductions............3
2.3. Fees..................................4
2.3.1. Non-Use Fee....................4
2.3.2. Facility Fee...................4
ARTICLE III LOANS AND NOTE...............................4
3.1. Loan Procedure........................4
3.1.1. Loan Requests..................4
3.1.2. Funding of Borrowings..........5
3.2. Note..................................5
3.3. Interest Payments.....................6
3.4. Use of Proceeds.......................6
ARTICLE IV AGREEMENT EFFECTIVENESS AND CONDITIONS TO
CREDIT EXTENSIONS............................6
4.1. Effective Date........................6
4.1.1. Resolutions, etc...............6
4.1.2. Note; Debt Registration
Agreement......................7
4.1.3. No Contest, etc................7
4.1.4. No Materially Adverse Effect...7
4.1.5. Certificate as to Warranties,
No Default, etc................8
4.1.6. Opinions of Counsel............8
4.1.7. Closing Fees, Expenses, etc....8
<PAGE>
ARTICLE V EVENTS OF DEFAULT............................8
5.1. Events of Default.....................8
5.1.1. Non-Payment of Obligations.....8
5.1.2. Non-Performance of Certain
Covenants......................8
5.1.3. Non-Performance of Other
Obligations....................9
5.1.4. Bankruptcy, Insolvency, etc....9
5.1.5. Breach of Warranty.............9
5.1.6. Default on Other Indebtedness,
etc...........................10
5.1.7. Invalidity of
HSI Guaranty..................10
5.1.8. Non-Acceptance of Debt
Registration Agreement........10
5.1.9. Pension Plans.................10
5.1.10. Judgments....................11
5.1.11. Change in Control............11
5.2. Action if Bankruptcy.................11
5.3. Action if Other Event of Default.....11
ARTICLE VI MISCELLANEOUS...............................12
6.1. Waivers, Amendments, etc.............12
6.2. Fees and Expenses....................13
6.3. Indemnification......................14
6.4. Survival.............................16
6.5. Severability.........................16
6.6. Headings.............................16
6.7. Counterparts.........................16
6.8. Governing Law; Entire Agreement......16
6.9. Successors and Assigns...............16
6.10. Other Transactions...................17
6.11. Waiver of Jury Trial, Etc............17
6.12. Submission to Jurisdiction...........17
<PAGE>
INDEX OF EXHIBITS
EXHIBIT A - Form of Note
EXHIBIT F-1 - Form of Opinion of Jack A. Staph, Esq.
EXHIBIT F-2 - Form of Opinion of Mayer, Brown & Platt
EXHIBIT I - Form of Debt Registration Agreement
<PAGE>
CREDIT AGREEMENT
(364 Day Facility)
THIS CREDIT AGREEMENT (364 Day Facility), dated as of November
15, 1996, among REVCO D.S., INC., a Delaware corporation ("Revco"),
BANQUE PARIBAS, a French banking corporation ("Paribas"), BANK OF
AMERICA ILLINOIS, an Illinois banking corporation, formerly known as
Continental Bank ("BAI", and, with Paribas, the "Lenders"), and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as
administrative agent (in such capacity, the "Administrative Agent")
for the Lenders.
W I T N E S E T H:
WHEREAS, the parties hereto are parties to that certain Amended
and Restated Credit Agreement, dated as of July 27, 1995 (as amended
or otherwise modified and in effect on the date hereof, the "Existing
Bank Credit Agreement" and, as hereafter amended or otherwise modified
and from time to time in effect with the prior written consent thereto
for purposes hereof by the Lenders, the "Bank Credit Agreement"); and
WHEREAS, Revco desires to obtain commitments from the Lenders for
revolving loans to Revco in an aggregate principal amount outstanding
at any time not to exceed $125,000,000;
NOW, THEREFORE, the parties hereto, intending legally to be bound
hereby, agree as follows:
ARTICLE I
INCORPORATION OF BANK CREDIT AGREEMENT
SECTION 1.1. Incorporation. Except as expressly set forth herein,
the Bank Credit Agreement is hereby incorporated herein by reference
as if set forth at length, including Revco's representations and
warranties, covenants and agreements and its other obligations under
the Bank Credit Agreement, together with related definitions and other
interpretative provisions, in each case mutatis mutandis, including
that references therein to:
(a) "Administrative Agent" or "Agent" are deemed to refer to
the Administrative Agent hereunder;
(b) "Agreement" are deemed to refer to this Agreement;
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(c) "Borrowing" are deemed to refer to the Loans made on any
Business Day in accordance with Section 3.1 of this Agreement;
(d) Sections 9.1.4 and 9.3 in the definition of "Commitment
Termination Event" are deemed to refer to Sections 5.1.4 and 5.3
of this Agreement, respectively;
(e) "Event of Default" are deemed to refer to an Event of
Default hereunder;
(f) "Fee Letter" are deemed to refer to the Fee Letter
hereunder;
(g) "Indemnified Liabilities" are deemed to refer to the
Indemnified Liabilities hereunder;
(h) Section 3.1 in the definition of "Interest Period" are
deemed to refer to Section 3.1 of this Agreement;
(i) "Letters of Credit" are deemed to be deleted;
(j) "Loans" or "Revolving Loans" are deemed to refer to
Loans hereunder; and
(k) "Note" are deemed to refer to the Note hereunder;
(l) "Revolving Credit Commitment" are deemed to refer to
each Lender's Commitment hereunder;
(m) the percentage "50%" in the definition of "Required
Lenders" are deemed to refer to the percentage "66-2/3%";
(n) the date "July 27, 2000" in the definition of "Revolving
Credit Commitment Termination Date" are deemed to refer to the
date "November 14, 1997";
(o) "Revolving Lender" are deemed to refer to each Lender
hereunder;
(p) "Total Revolving Credit Commitment Amount" are deemed to
refer to the Total Revolving Credit Commitment Amount hereunder.
<PAGE>
ARTICLE II
COMMITMENTS
SECTION 2.1. Commitments. Subject to the terms and conditions of
this Agreement (including Article IV), each Lender severally and for
itself alone agrees to provide the commitments described in this
Section 2.1.
SECTION 2.1.1. Revolving Credit Commitments. Each Lender will,
from time to time on any Business Day on or after the Effective Date
and before the Revolving Credit Commitment Termination Date, make
Loans (relative to such Lender, its "Loans") to Revco equal to its
Percentage of the aggregate principal amount of any Borrowing of Loans
requested from all Lenders on such Business Day.
The commitment of each Lender described in this Section 2.1.1 is
herein referred to as its "Commitment" and is initially set forth
against such Lender's name on the signature pages hereto together with
such Lender's initial Percentage.
SECTION 2.1.2. Lenders Not Required to Extend Credit. No Lender
shall be required to make any Loan if, after giving effect thereto,
the then aggregate outstanding principal amount of all Loans relative
to
(i) all Lenders would exceed $125,000,000 (as such amount
may be reduced from time to time pursuant to Section 2.2, the
"Total Revolving Credit Commitment Amount"), or
(ii) such Lender would exceed its Percentage (after giving
effect to all Loans (whether or not funded by any particular
Lender) as if each Lender had funded its respective Loans in
accordance with the terms of this Agreement) of the aggregate
principal amount of all Loans outstanding from all Lenders.
Subject to the terms hereof, Revco may from time to time borrow,
prepay and reborrow Loans pursuant to the Commitments.
SECTION 2.2. Reduction of Total Revolving Credit Commitment
Amount. The Total Revolving Credit Commitment Amount is subject to
reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional Reductions. Revco may, from time to time
on any Business Day, voluntarily reduce the amount of the Total
Revolving Credit Commitment Amount; provided that all such reductions
shall require at least 2 Business Days' prior written notice to the
Administrative Agent and be permanent, and any partial reduction
<PAGE>
of the Total Revolving Credit Commitment Amount shall be in a minimum
amount of $5,000,000 and in an integral multiple of $1,000,000.
SECTION 2.3. Fees. Revco agrees to pay the fees set forth in this
Section 2.3.
SECTION 2.3.1. Non-Use Fee. Revco agrees to pay to the
Administrative Agent for the account of the Lenders (ratably according
to their respective Percentages) a non-use fee at a rate per annum
equal to the Non-Use Fee minus 0.025% on the daily average Unused
Total Revolving Credit Commitment Amount for the period from the
Effective Date to the Revolving Credit Commitment Termination Date,
payable in arrears on each Quarterly Payment Date and the Revolving
Credit Commitment Termination Date for the period then ended for which
such fee has not theretofore been paid.
SECTION 2.3.2. Facility Fee. On the Effective Date, Revco agrees
to pay the Administrative Agent for the account of the Lenders
(ratably according to their respective Percentages), the fees required
by the letter agreement dated November 15, 1996 between Revco and BofA
(the "Fee Letter").
ARTICLE III
LOANS AND NOTE
SECTION 3.1. Loan Procedure. Borrowings of Loans shall be made in
accordance with this Section 3.1.
SECTION 3.1.1. Loan Requests. By delivering to the Administrative
Agent a duly completed and executed Revolving Loan Request therefor,
in the case of a proposed Borrowing of Eurodollar Rate Loans, at or
before 10:00 a.m., San Francisco time, on a Business Day not less than
3 and not more than 5 Business Days before the proposed Borrowing Date
therefor provided that in the case of a Borrowing of Eurodollar Loans
to be made on the Effective Date such notice shall be given 3 Business
Days prior to the Effective Date, or in the case of a proposed
Borrowing of Base Rate Loans, at or before 10:00 a.m., San Francisco
time, on the Business Day next preceding the proposed Borrowing Date
therefor, Revco may request that the Lenders make Loans to Revco on
the Borrowing Date specified therefor in such request, in each case in
a minimum aggregate principal amount of $5,000,000 and integral
multiple of $100,000 (or, if less, the Unused Total Revolving Credit
Commitment Amount) for Base Rate Loans and a minimum aggregate
principal amount of $5,000,000 and integral multiple of $100,000 for
Eurodollar Rate Loans. After giving effect to any Borrowing, there may
not be more than 4 Interest Periods in effect in respect of all
Eurodollar Rate Loans.
On the terms and subject to the conditions of this
Agreement, each Loan described above shall be disbursed
promptly after the Administrative Agent's receipt from
<PAGE>
each Lender of such Lender's Percentage of the Borrowing then
requested by Revco on the applicable Borrowing Date therefor, in same
day funds by wire transfer to such transferee(s), or to such
account(s) of Revco, as Revco shall have specified in the applicable
request therefor; provided that the Administrative Agent shall
disburse such funds as it has received from the Lenders to Revco no
later than 12:00 noon, San Francisco time.
The Administrative Agent shall promptly notify the Lenders of the
receipt of each request pursuant to this Section. Each request for
Loans made pursuant to this Section 3.1.1 shall constitute Revco's
representation and warranty made to the Administrative Agent, the
Managing Agents and the Lenders that all of the applicable conditions
contained in Article VI of the Bank Credit Agreement will, after
giving effect to such Borrowing, be satisfied, and the making
available of such Loans to Revco shall be subject to the satisfaction
of the applicable conditions of Article VI of the Bank Credit
Agreement.
SECTION 3.1.2. Funding of Borrowings. Subject to the terms and
conditions of this Agreement, each Borrowing shall be made on the
Borrowing Date specified in the request duly made therefor. On each
Borrowing Date, each Lender shall deposit with the Administrative
Agent same day funds, at or before 11:00 a.m., San Francisco time, in
an amount equal to such Lender's Percentage of the amount of such
requested Borrowing, such deposit to be made to such account as the
Administrative Agent shall specify from time to time by notice to the
Lenders. After timely receipt of such funds, the Administrative Agent
shall promptly on such Borrowing Date make such funds available to
Revco by wire transfer to such transferee(s), or to such account(s) of
Revco, as Revco shall have specified in the request therefor. No
Lender's obligation to make any Loan shall be affected by any other
Lender's failure to make any such Loan.
SECTION 3.2. Note. All Loans made by the Lenders shall be
evidenced by a promissory note (the "Note") of Revco, dated the
Effective Date and substantially in the form of Exhibit A, payable to
the order of the Administrative Agent for the account of the Lenders
ratably in accordance with their respective Percentages and in a
maximum principal amount equal to the initial Total Revolving Credit
Commitment Amount.
Revco hereby irrevocably authorizes the Administrative Agent to
make (or cause to be made) appropriate notations on the schedule
attached to the Note (or on a continuation of such schedule attached
to such Note and made a part thereof), or in the Administrative
Agent's other records, which notations shall evidence, inter alia, the
date of, the outstanding principal amount of, and the interest rate
(including any applicable conversions thereof pursuant to Section 4.2
of the Bank Credit Agreement) applicable to, the Loans evidenced
thereby. Such notations indicating the outstanding principal amount of
the Loans shall, in the absence of manifest error, be conclusive
evidence of the principal amount thereof owing and unpaid, but the
failure to record or any error in
<PAGE>
recording any such amount on such schedule (or on such continuation),
or in such other records, shall not limit or otherwise affect the
obligations of Revco hereunder or under such Note to make payment of
principal of or interest on such Loans when due. The Administrative
Agent will hold the original Note.
Nothing in this Section 3.2 shall be construed or deemed to limit
or otherwise prejudicially affect the rights of any Lender to
repayment of its Loans and other Obligations owing to such Lender or
to commence or maintain any action, suit or other proceeding therefor
against Revco or other Obligor without the necessity of joining the
Administrative Agent as party thereto, which rights Revco hereby
acknowledges and agrees to.
SECTION 3.3. Interest Payments. Not in limitation but in
furtherance of Section 1.1 hereof, Section 3.4 of the Bank Credit
Agreement is specifically incorporated herein by reference.
SECTION 3.4. Use of Proceeds. Revco shall apply the proceeds of
each Borrowing for ongoing working capital and general corporate
purposes of Revco and its Subsidiaries, including the making of any
loans or capital contributions by Revco to its Subsidiaries, or for
any other purpose permitted by the Bank Credit Agreement, including a
Permitted Strategic Investment.
ARTICLE IV
AGREEMENT EFFECTIVENESS AND CONDITIONS TO CREDIT EXTENSIONS
SECTION 4.1. Effective Date. This Agreement shall be and become
effective on the date (the "Effective Date") on which Revco, the
Lenders and the Administrative Agent shall have executed and delivered
this Agreement and the prior or concurrent satisfaction of each of the
requirements set forth in this Section 4.1.
SECTION 4.1.1. Resolutions, etc. The Administrative Agent and
such Lenders as shall have requested receipt of same prior to the
Effective Date shall have received:
(a) a certificate, dated the Effective Date, of the
Secretary or any Assistant Secretary of each Obligor as to:
(i) no amendments to the Organic Documents of such
Obligor since July 27, 1995 except as noted in such
certificate;
(ii) resolutions of the Board of Directors of such
Obligor then in full force and effect, authorizing the
execution, delivery and
<PAGE>
performance of each Credit Document to be executed by it and
the related transactions contemplated in connection
therewith, and
(iii) the incumbency and signatures of those of its
officers authorized to act with respect to each Credit
Document to be executed by it,
upon which certificate each Lender, including each Assignee
(whether or not it shall have then become a party hereto), may
conclusively rely until it shall have received a further
certificate of the Secretary of such Obligor replacing or
amending such prior certificate; and
(b) such other documents (certified if requested) as the
Administrative Agent or the Required Lenders may reasonably
request with respect to any Organic Document, Contractual
Obligation or Approval.
SECTION 4.1.2. Note; Debt Registration Agreement. The
Administrative Agent shall have received:
(a) the Note duly executed and delivered pursuant to Section
3.2; and
(b) a debt registration agreement substantially in the form
of Exhibit I (the "Debt Registration Agreement") duly executed
and delivered by Revco.
SECTION 4.1.3. No Contest, etc. No litigation, arbitration,
governmental investigation, proceeding or inquiry shall, on the
Effective Date, be pending or, to the knowledge of Revco, threatened
which:
(a) seeks to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result of,
any transactions contemplated by or in connection with this
Agreement; or
(b) might, in the opinion of the Required Lenders, if
adversely determined, be reasonably expected to have a Materially
Adverse Effect, or be materially detrimental to the interests of
any of the parties hereto with respect to any of the transactions
contemplated hereby.
SECTION 4.1.4. No Materially Adverse Effect. No event or events
which, individually or in the aggregate, in the opinion of the
Required Lenders, could have a Materially Adverse Effect shall have
occurred since June 1, 1996.
<PAGE>
SECTION 4.1.5. Certificate as to Warranties, No Default, etc. The
Administrative Agent shall have received a certificate, dated the
Effective Date, of Revco executed on its behalf by the chief executive
or financial Authorized Officer of Revco stating that on and as of the
Effective Date:
(a) all representations and warranties set forth
in Article VII of the Bank Credit Agreement are true
and correct in all material respects; and
(b) no Default has occurred and is continuing.
SECTION 4.1.6. Opinions of Counsel. The Administrative Agent
shall have received opinion letters, dated the Effective Date and
addressed to the Administrative Agent and the Lenders, from:
(a) Jack A. Staph, Esq., Senior Vice President, Secretary
and General Counsel of Revco, substantially in the form of
Exhibit F-1; and
(b) Mayer, Brown & Platt, counsel to the Administrative
Agent, substantially in the form of Exhibit F-2.
SECTION 4.1.7. Closing Fees, Expenses, etc. The Administrative
Agent shall have received for the account of each Lender, all fees
then due and payable under Section 2.3.2.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.1. Events of Default. The term "Event of Default" shall
mean any of the events set forth in this Section 5.1.
SECTION 5.1.1. Non-Payment of Obligations. Revco shall default:
(a) in the payment or prepayment when due (whether at stated
maturity or by acceleration, mandatory prepayment or otherwise)
of any principal of any Loan; or
(b) in the payment when due of any interest on any Loan or
any other monetary Obligation (other than principal of any Loan)
and such default shall continue unremedied for a period of 5
Business Days.
SECTION 5.1.2. Non-Performance of Certain Covenants. Revco shall
default in the due performance or observance of any of its obligations
under Section 8.2 of the Bank Credit Agreement.
<PAGE>
SECTION 5.1.3. Non-Performance of Other Obligations. Revco shall
default in the due performance and observance of any other agreement
contained herein or in any other Credit Document executed by it, and
such default shall continue unremedied for a period of 30 days after
the earlier of notice thereof shall have been given to Revco by the
Administrative Agent or the date on which an Authorized Officer of
Revco knew or should have known of such default.
SECTION 5.1.4. Bankruptcy, Insolvency, etc. Revco or any of its
Subsidiaries shall:
(a) become insolvent or generally fail to pay, or admit in
writing its inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator or other custodian for Revco
or any such Subsidiary or any property of any thereof, or make a
general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for Revco or
any such Subsidiary or for a substantial part of the property of
any thereof, and such trustee, receiver, sequestrator or other
custodian shall not be discharged within 60 days;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect of
Revco or any such Subsidiary, and, if such case or proceeding is
not commenced by Revco or such Subsidiary, such case or
proceeding shall be consented to or acquiesced in by Revco or
such Subsidiary or shall result in the entry of an order for
relief or shall remain for 60 days undismissed; or
(e) take any corporate action authorizing, or in furtherance
of, any of the foregoing.
SECTION 5.1.5. Breach of Warranty. Any representation or warranty
of Revco hereunder or in the Credit Documents or any representation or
warranty by any Obligor in any Credit Document or any other writing
furnished by or on behalf of Revco or any Obligor to the
Administrative Agent or any Lender for the purposes of or in
connection with this Agreement or any such Credit Document is or shall
be incorrect when made or deemed made in any material respect.
<PAGE>
SECTION 5.1.6. Default on Other Indebtedness, etc. Any other
Indebtedness of Revco or any of its Subsidiaries in an outstanding
principal amount of $10,000,000 or more shall become due and payable
and not be paid or satisfied in full, or its holder shall be entitled
to require Revco or such Subsidiary to purchase, repurchase, redeem,
defease, retire or otherwise prepay such Indebtedness in whole or in
part except with respect to the 6.5% Convertible Subordinate
Debentures of Big B, Inc. due March 15, 2003 or as permitted by
Section 8.2.10(b) of the Bank Credit Agreement (in each case without
giving effect to any grace periods applicable thereto); or any default
shall occur under the terms applicable to any Indebtedness in an
outstanding principal amount of $10,000,000 or more of Revco or any of
its Subsidiaries representing any borrowing or financing or arising
under any other material agreement, and such default shall:
(a) consist of the failure to pay such Indebtedness at the
maturity thereof;
(b) result in the acceleration of such Indebtedness, or
continue unremedied for a period of time sufficient to permit the
acceleration of such Indebtedness or to permit the holder thereof
to require Revco or such Subsidiary to purchase, redeem or
defease such Indebtedness in whole or in part; or
(c) without limiting clause (b) above, continue unremedied
(and not have been waived by the holder of such Indebtedness) for
more than 10 days.
SECTION 5.1.7. Invalidity of HSI Guaranty. The HSI Guaranty shall
cease to be in full force and effect with respect to HSI other than as
expressly permitted hereunder, HSI shall fail (subject to any
applicable grace period) to comply with or to perform any applicable
provision of the HSI Guaranty, or HSI (or any Person by, through or on
behalf of HSI), shall contest in any manner the validity, binding
nature or enforceability of the HSI Guaranty with respect to HSI.
SECTION 5.1.8. Non-Acceptance of Debt Registration Agreement. The
Debt Registration Agreement shall not have been accepted, recorded and
registered by the Collateral Agent in accordance with Section 5.4 of
the Collateral Agency Agreement.
SECTION 5.1.9. Pension Plans. Any of the following events shall
occur with respect to any Pension Plan:
(a) the institution of any steps by Revco, any member of its
Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, Revco or any such member
could be required
<PAGE>
to make a contribution to such Pension Plan, or could incur a
liability or obligation to such Pension Plan, in excess of
$10,000,000;
(b) a contribution failure occurs with respect to any
Pension Plan sufficient to give rise to a Lien under section
302(f) of ERISA;
(c) the institution of any steps or failure to take any
action by Revco, any member of its Controlled Group or any other
Person if such act or omission results, or could reasonably be
expected to result, in the assessment of withdrawal liability by
a Multiemployer Plan against Revco or any member of its
Controlled Group in an amount in excess of $10,000,000; or
(d) a "default" (as defined in section 4219(c)(5) of ERISA)
occurs with respect to payments owed by Revco or any member of
its Controlled Group to any Multiemployer Plan.
SECTION 5.1.10. Judgments. Any judgment or order for the payment
of money in an aggregate amount in excess of $20,000,000 shall be
rendered against Revco or any of its Subsidiaries and either:
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect.
SECTION 5.1.11. Change in Control. Any Change in Control shall
occur.
SECTION 5.2. Action if Bankruptcy. If any Event of Default
described in clauses (a) through (d) of Section 5.1.4 shall occur,
then all Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all
outstanding Loans and all other Obligations shall automatically be and
become immediately due and payable, without notice or demand.
SECTION 5.3. Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (a)
through (d) of Section 5.1.4) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent
may, and upon the direction of the Required Lenders, shall, upon
notice or demand, declare a Commitment Termination Event, declare the
outstanding principal amount of the Loans and all other Obligations to
be due and payable and terminate all Commitments, whereupon the full
unpaid amount of such Loans and any and all other Obligations shall be
and become immediately due and payable, without
<PAGE>
further notice, demand, or presentment, and/or, as the case may be,
the Commitments shall terminate.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Waivers, Amendments, etc. The provisions of this
Agreement, including, without limitation, the provisions of the Bank
Credit Agreement incorporated herein, and of each Credit Document may
from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by Revco and the
Required Lenders and acknowledged by the Administrative Agent (it
being understood that the Administrative Agent has no independent
vote), provided that no such amendment, modification or waiver:
(a) which would modify any requirement hereunder that any
particular action be taken by all Lenders or by the Required
Lenders shall be effective unless consented to by each Lender;
(b) which would modify this Section 6.1, change the
definition of "Required Lenders" or "Voting Percentage", increase
any Total Revolving Credit Commitment Amount or change any
Percentage or Voting Percentage for any Lender, reduce any fees
described in Article II, extend the Revolving Credit Commitment
Termination Date or subject any Lender to any additional
obligations shall be made without the consent of each Lender;
(c) which would extend any mandatory Commitment reduction
date or reduce the amount of any mandatory Commitment reduction
or extend the due date for, or reduce the amount of any payment
of principal, interest or fees on any Loan shall be made without
the consent of each Lender;
(d) which would affect adversely the interests, rights or
obligations of the Administrative Agent qua the Administrative
Agent shall be made without the consent of the Administrative
Agent;
(e) which would release Revco under the Debt Registration
Agreement; or
(f) which would release HSI under the HSI Guaranty, shall be
made without the consent of each Lender,
<PAGE>
and provided, further, that the Fee Letter may be amended or
rights or privileges thereunder waived in a writing executed by
the parties thereto.
No failure or delay on the part of the Administrative Agent or
any Lender in exercising any power or right under this Agreement or
any other Credit Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power
or right. No notice to or demand on Revco in any case shall entitle it
to any notice or demand in similar or other circumstances. No waiver
or approval by the Administrative Agent or any Lender under this
Agreement or any other Credit Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require
any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 6.2. Fees and Expenses. Revco shall pay, upon receipt of
an itemized invoice therefor in reasonable detail, on demand all
expenses of each Lender in connection with its review and examination
of Revco and its Subsidiaries for purposes of the transactions
contemplated hereby, in connection with the development, preparation,
delivery, execution, closing and ongoing administration of the Credit
Documents (including the reasonable fees and expenses of Mayer, Brown
& Platt or other counsel (and allocated costs and disbursements of
internal counsel) to the Lenders and the Administrative Agent (and of
local counsel, if any, who may be retained by counsel to the Lenders)
and all travel and lodging expenses, fees and expenses of consultants,
field examiners and other experts, environmental analysis fees, and
printing, document production, delivery and communication costs in
connection with the Credit Documents and the transactions contemplated
thereby). If, at any time or times, regardless of the existence of an
Event of Default, the Administrative Agent (or, in the case of clause
(b) or (c) below, any Lender) shall employ counsel, consultants, field
examiners or other professional advisors for advice or other
representation or shall incur reasonable legal, appraisal, accounting,
consulting or other costs and expenses (including reasonable loan
administration expenses) in connection with:
(a) any amendment, supplement, modification or waiver of, or
consent with respect to, any of the Credit Documents (including
any "workout" or other restructuring or resetting of any or all
of the Obligations);
(b) any litigation, contest, dispute, suit, proceeding or
action (whether instituted by the Administrative Agent or any
Lender, Revco or any other Person) in any way relating to, any of
the Credit Documents, or any other agreements to be executed or
delivered in connection therewith or herewith, including any
litigation, contest, dispute, suit, case, proceeding or action,
and any appeal or review thereof, in connection with a case
commenced by or against Revco or any other Person that may be
obligated to the Administrative Agent or any Lender by virtue of
the Credit
<PAGE>
Documents, under the Bankruptcy Code or any other applicable
Federal, state, or foreign bankruptcy or other similar law; or
(c) any attempt to enforce any rights of the Administrative
Agent or any Lender against Revco or any other Person that may be
obligated to the Administrative Agent or any Lender by virtue of
any of the Credit Documents;
then, and in any such event, the reasonable fees of such attorneys,
consultants, field examiners and other professional advisors arising
from such services, including those of any appellate proceedings, and
all reasonable expenses, costs, charges and other fees incurred by
such counsel or other professionals in any way or respect arising in
connection with or relating to any of the events or actions described
in this Section, together with all other out-of-pocket expenses of the
Administrative Agent or such Lender in connection with any of the
foregoing events, shall, upon receipt by Revco of an itemized invoice
therefor in reasonable detail, be payable on demand by Revco to the
Administrative Agent or such Lender and shall be additional
Obligations secured under the Credit Documents. Without limiting the
generality of the foregoing, such reasonable expenses, costs, charges
and fees may include: paralegal fees, costs and expenses; accountants'
fees, costs and expenses; environmental analysis fees, costs and
expenses; appraisers' fees, costs and expenses; management, employee
benefit, liquidator and other consultants' fees, costs and expenses;
court costs and expenses; photocopying and duplicating expenses; court
reporter fees, costs and expenses; long distance telephone charges;
air express charges; secretarial overtime charges; and expenses for
travel, lodging and food paid or incurred in connection with the
performance of such legal or other professional services.
SECTION 6.3. Indemnification. In consideration of the execution
and delivery of this Agreement by each Lender and the extension of its
Commitment, Revco hereby indemnifies, exonerates and holds the
Administrative Agent, and each Lender and each of their respective
officers, directors, employees attorneys and agents (the "Indemnified
Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and
expenses actually incurred in connection therewith (irrespective of
whether such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys'
fees and disbursements (the "Indemnified Liabilities"), incurred by
the Indemnified Parties or any of them as a result of, or arising out
of, or relating to:
(a) any transaction financed or to be financed in whole or
in part, directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance by Revco or any other
Obligor of this Agreement and any other Credit Document;
<PAGE>
(c) any investigation, litigation, or proceeding related to
any acquisition or proposed acquisition by Revco or any of its
Subsidiaries of all or any portion of the stock or all or
substantially all the assets of any Person, whether or not the
Administrative Agent or such Lender is party thereto; or
(d) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases
from, any real property owned or operated by Revco or any of its
Subsidiaries of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims
asserted or arising under CERCLA, any so-called "Superfund" or
"Superlien" law, or any other federal, state, local or other
statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability or standards on
conduct concerning, any Hazardous Material), regardless of
whether caused by, or within the control of, Revco or any of its
Subsidiaries; provided that, notwithstanding the foregoing, Revco
shall indemnify each Indemnified Party regardless of whether such
Indemnified Party takes possession of any real property owned or
operated by Revco or any of its Subsidiaries for all matters for
which an Indemnified Party might otherwise be entitled to
indemnification by Revco hereunder which have occurred or arisen
prior to the time at which such Indemnified Party takes such
possession and which are unremediated or continuing, and
possession by such Indemnified Party shall not affect Revco's
duty and obligation to indemnify such Indemnified Party
hereunder, except for any such Indemnified Liabilities arising
for the account of a particular Indemnified Party which are
determined by a final judgment of a court of competent
jurisdiction to be attributable solely to such Indemnified
Party's gross negligence or willful misconduct; provided that, if
Revco institutes any action, suit or proceeding against any of
the Indemnified Parties and such action, suit or proceeding is
unsuccessful, Revco shall indemnify and hold harmless the
Indemnified Parties from and against all Indemnified Liabilities
arising in connection with or relating to such action, suit or
proceeding. If and to the extent that the undertaking described
in this Section 6.3 may be unenforceable for any reason, Revco
hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is
permissible under Applicable Law. No Indemnified Person shall be
responsible or liable to Revco, any of its Subsidiaries, any of
their respective successors or assigns, or any other Person
asserting claims derivatively through any such party, for
indirect, punitive, exemplary or consequential damages which may
be alleged as a result of this Agreement and the other Credit
Documents or the transactions contemplated hereby and thereby.
The provisions of this Section 6.3 shall
<PAGE>
be in addition to any rights that any Indemnified Person may have
at law or otherwise, including any rights to contribution.
SECTION 6.4. Survival. The obligations of Revco under Sections
6.2 and 6.3, and the obligations of the Lenders under Section 10.1 of
the Bank Credit Agreement, shall in each case survive any termination
of this Agreement and the payment in full of any or all of the
Obligations. The representations and warranties made by Revco and any
other Obligor in this Agreement, the Note and in each other Credit
Document shall survive the execution and delivery of this Agreement,
the Note and each such other Credit Document.
SECTION 6.5. Severability. Whenever possible, each provision of
this Agreement will be interpreted in such a manner as to be effective
and valid under Applicable Law, but if any provision of this
Agreement, the Note or any other Credit Document is prohibited or
unenforceable in any jurisdiction, such provision shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement, the Note or such other Credit Document or affecting the
validity or enforceability of such provision in any other
jurisdiction.
SECTION 6.6. Headings. The various headings of this Agreement,
the Note and of each other Credit Document are provided solely for
convenience of reference and shall not affect the meaning or
interpretation of this Agreement, the Note or such other Credit
Document or any provisions hereof or thereof.
SECTION 6.7. Counterparts. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed
to be an original and all of which shall constitute together but one
and the same agreement.
SECTION 6.8. GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT, THE
NOTE AND EACH OTHER CREDIT DOCUMENT SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS. THIS
AGREEMENT, THE NOTE AND THE OTHER CREDIT DOCUMENTS CONSTITUTE THE
ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR
ORAL, WITH RESPECT THERETO.
SECTION 6.9. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns; provided that:
<PAGE>
(a) Revco may not assign or transfer (by operation of law or
otherwise) its rights or obligations hereunder without the prior
written consent of all Lenders; and
(b) the rights of sale, assignment and transfer by the
Lenders are subject to Section 11.11 of the Bank Credit
Agreement.
SECTION 6.10. Other Transactions. Nothing contained herein shall
preclude the Administrative Agent or any Lender from engaging in any
debt, equity or other transaction, in addition to those contemplated
by this Agreement or any other Credit Document, with Revco or any of
its Affiliates in which Revco or such Affiliate is not restricted
hereby from engaging with any other Person.
SECTION 6.11. WAIVER OF JURY TRIAL, ETC. REVCO HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, THE NOTE OR ANY
OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS, OR REVCO. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE ADMINISTRATIVE AGENT, AND SUCH LENDERS ENTERING INTO THIS
AGREEMENT.
SECTION 6.12. SUBMISSION TO JURISDICTION. REVCO HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK
STATE OR FEDERAL COURT SITTING IN NEW YORK CITY OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE CREDIT
DOCUMENTS OR THE NOTE, AND REVCO HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT. REVCO, ON BEHALF
OF ITSELF AND EACH SUBSIDIARY, HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE IN ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT AS WELL AS ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO REMOVE
ANY SUCH ACTION OR PROCEEDING, ONCE COMMENCED, TO ANOTHER COURT ON THE
GROUNDS OF FORUM NON CONVENIENS OR OTHERWISE. REVCO HEREBY IRREVOCABLY
APPOINTS CT CORPORATION SYSTEM (THE "PROCESS AGENT"), WITH AN OFFICE
ON THE DATE HEREOF AT [208 SOUTH LASALLE STREET, CHICAGO, ILLINOIS
60604], UNITED STATES, AS ITS AGENT TO RECEIVE ON BEHALF OF REVCO AND
ITS PROPERTY SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY
OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING.
SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH
PROCESS TO REVCO IN CARE OF THE PROCESS
<PAGE>
AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND REVCO HEREBY
IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH
SERVICE ON ITS BEHALF. REVCO AGREES TO INDEMNIFY THE PROCESS AGENT IN
CONNECTION WITH ALL MATTERS RELATING TO ITS APPOINTMENT AS AGENT OF
REVCO FOR SUCH PURPOSES, TO ENTER INTO ANY AGREEMENT RELATING TO SUCH
APPOINTMENT WHICH THE PROCESS AGENT MAY CUSTOMARILY REQUIRE, AND TO
PAY THE PROCESS AGENT'S CUSTOMARY FEES UPON DEMAND. AS AN ALTERNATIVE
METHOD OF SERVICE, REVC0 ALSO IRREVOCABLY CONSENTS TO THE SERVICE OF
ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES OF SUCH PROCESS TO REVCO AT ITS ADDRESS SPECIFIED PURSUANT TO
SECTION 11.2 OF THE BANK CREDIT AGREEMENT. REVCO AGREES THAT A FINAL,
NON-APPEALABLE JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
REVCO AGREES NOT TO INSTITUTE ANY LEGAL ACTION OR PROCEEDING
AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR THE DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR PROPERTY OF ANY THEREOF, ARISING OUT OF
OR RELATING TO THIS AGREEMENT, IN ANY COURT OTHER THAN THE ONE
HEREINABOVE SPECIFIED IN THIS SECTION. NOTHING IN THIS SECTION,
HOWEVER, SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY
LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING
ANY ACTION OR PROCEEDING AGAINST REVCO OR ITS PROPERTIES IN THE COURTS
OF ANY OTHER JURISDICTION.
[Remainder of page intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
REVCO D.S., INC.
By /s/ Brian P. Carney
----------------------------------
Name: Brian P. Carney
Title: Senior Vice President, Finance
Address: 1925 Enterprise Parkway
Twinsburg, Ohio 44087
Telephone No.: (216) 425-9811
Facsimile No.: (216) 487-1679
(216) 487-1081
Attention: Jack A. Staph, Esq.
General Counsel
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent
By /s/ Kevin P. Morrison
-------------------------------------
Name: Eric A. Schubert
Title: Managing Director
Credit/Documentation Issues:
Address: 231 South LaSalle Street
Chicago, Illinois 60697
Telephone No.: (312) 828-6517
Facsimile No.: (312) 828-3555
Attention: Eric A. Schubert
Managing Director
Administrative Issues:
Address: 1455 Market Street, 12th Floor
San Francisco, California 94103
Telephone No.: (415) 436-2747
Facsimile No.: (415) 436-2700
Attention: George J. Slawek
<PAGE>
Commitment Percentage BANK OF AMERICA ILLINOIS
$65,000,000 52%
By /s/ Kevin P. Morrison
---------------------------------
Name: Eric A. Schubert
Title: Managing Director
Address: 231 South LaSalle Street
Chicago, Illinois 60697
Telephone No.: (312) 828-6517
Facsimile No.: (312) 828-3555
Attention: Eric A. Schubert
Managing Director
Domestic
Office: 231 South LaSalle Street
Chicago, Illinois 60697
Eurodollar
Office: 231 South LaSalle Street
Chicago, Illinois 60697
<PAGE>
Commitment Percentage BANQUE PARIBAS
$60,000,000 48%
By /s/ Peter Toal
--------------------------------
Name: Peter Toal
Title: Regional General Manager
By /s/ Mark Radzik
--------------------------------
Name: Mark Radzik
Title: Vice President
Address: 227 West Monroe Street
Suite 3300
Chicago, Illinois 60606
Telephone No.: (312) 853-6000
Facsimile No.: (312) 853-6020
Attention: Mark Radzik
Vice President
Domestic
Office: 227 West Monroe Street
Suite 3300
Chicago, Illinois 60606
Eurodollar
Office: 227 West Monroe Street
Suite 3300
Chicago, Illinois 60606
<PAGE>
EXHIBIT A
REVOLVING NOTE
$125,000,000 November 15, 1996
FOR VALUE RECEIVED, on or before the Revolving Credit Commitment
Termination Date, the undersigned hereby promises to pay to the order
of Bank of America National Trust and Savings Association, as
administrative agent (the "Administrative Agent"), for the account of
the financial institutions which are now or hereafter become Lenders
(the "Lenders") under the Credit Agreement referred to below, at the
Administrative Agent's principal office in San Francisco, California,
the principal amount of ONE HUNDRED TWENTY-FIVE MILLION DOLLARS
($125,000,000), or, if less, the aggregate unpaid principal amount of
the Loans made by the Lenders to the undersigned pursuant to the
Credit Agreement referred to below (as shown in the records of the
Administrative Agent or, at the Administrative Agent's option, on the
grid attached hereto and any continuation thereof).
The undersigned further promises to pay interest on the unpaid
principal amount of each Loan evidenced by this Note from the date of
such Loan until such Loan is paid in full, payable at such rate(s) and
at such time(s) as are provided in the Credit Agreement referred to
below.
This Note evidences indebtedness incurred as Loans under, and is
subject to the terms and provisions of, the Credit Agreement (364 Day
Facility), dated as of November 15, 1996 (herein, as the same may be
amended, modified, restated, supplemented, extended, refinanced,
refunded or renewed, from time to time, called the "Credit
Agreement"), among the undersigned, Banque Paribas, Bank of America
Illinois (formerly known as Continental Bank) as Lenders and the
Administrative Agent, to which Credit Agreement reference is hereby
made for a statement of such terms and provisions, including those
under which this Note may be paid prior to its due date or its due
date may be accelerated and those requiring partial prepayment under
certain circumstances. Terms used but not otherwise defined herein are
used herein as defined in the Credit Agreement, notwithstanding any
termination thereof.
In addition to and not in limitation of the foregoing, but
subject to the provisions of the Credit Agreement, the undersigned
further agrees to pay on demand all reasonable attorneys' fees and
legal expenses incurred by the Administrative Agent and the Lenders in
connection with the enforcement of this Note, and any and all
amendments, modifications, restatements, supplements, extensions,
refinancings, refunds and renewals relating to this Note.
<PAGE>
This Note is made under and governed by the laws of the State of
New York without regard to principles of conflicts of law.
REVCO D.S., INC.
By:
--------------------
Name:
--------------------
Title:
-------------------
Address:
1925 Enterprise Parkway
Twinsburg, Ohio 44087
<PAGE>
GRID
Grid attached to Note dated November 15, 1996 of Revco D.S., Inc.,
payable to the order of Bank of America National Trust and Savings
Association, as Administrative Agent, for the account of certain
Lenders.
Date of
Loan, Interest
Conversion Amount Type Period, Amount Principal
or of of if of Amount Notation
Continuation Loan Loan any Repayment Outstanding Made By
<PAGE>
EXHIBIT F-1
[Letterhead of Revco]
November 15, 1996
To the Administrative Agent
and each of the Lenders party to
the Credit Agreement (364 Day
Facility) dated as of November
15, 1996 by and among Revco
D.S., Inc., the Administrative
Agent, and such Lenders
Re: Revco D.S., Inc.
----------------
Ladies and Gentlemen:
I am Senior Vice President, Secretary and General Counsel of
Revco D.S., Inc., a Delaware corporation (the "Borrower"), and have
advised the Borrower and its Subsidiaries (together with the Borrower,
the "Companies" and individually a "Company") on certain legal matters
in connection with that certain Credit Agreement (364 Day Facility)
dated as of November 15, 1996 (the "Credit Agreement"), by and among
the Borrower, Banque Paribas, a French banking corporation, and Bank
of America Illinois, an Illinois banking corporation (formerly known
as Continental Bank) (together the "Lenders"), and Bank of America
National Trust and Savings Association, as Administrative Agent (in
such capacity, the "Administrative Agent") for the Lenders.
Capitalized terms used but not defined herein shall have the meanings
assigned thereto in the Credit Agreement. This opinion is furnished to
you pursuant to section 4.1.6(a) of the Credit Agreement.
I have examined originals or copies, certified or otherwise
identified to my satisfaction as being true copies, of the following
(sometimes collectively referred to below as the "Documents" and
individually as a "Document"), each dated (or dated as of) November
15, 1996, unless otherwise indicated:
(a) the Credit Agreement;
(b) the Note; and
(c) the Debt Registration Agreement.
<PAGE>
November 15, 1996
Page 2
I have also examined original copies or copies certified to my
satisfaction of such other agreements, instruments and other documents
as I have deemed necessary to enable me to render the opinions
expressed herein. In my examination, I have assumed the genuineness of
all signatures and the legal capacity of all natural persons.
I have assumed: that each entity that is a party to the Documents
(other than the Borrower and its Subsidiaries) has been duly organized
or formed and is validly existing and in good standing as a corporate
or similar organization under the laws of its jurisdiction or
organization, and is qualified to do business and is in good standing
as a foreign corporation or other organization in each jurisdiction
where by law it is required to be so qualified; that each Document has
been duly authorized, executed and delivered by each other party and
constitutes such other party's valid and binding obligation,
enforceable against such party in accordance with its terms; that each
such other party has the requisite corporate or other organizational
power and authority to perform such other party's obligations under
the Documents; and that each such other party to the Documents has
performed and will perform such other party's obligations under the
Documents.
Based on the foregoing, I am of the opinion that:
1. Each Company is duly incorporated, validly existing and in
good standing under the laws of the state of its incorporation and is
duly qualified to do business as a foreign corporation and is in good
standing in all jurisdictions where it owns or leases a material
amount of property or conducts a material amount of business and in
which the failure to be so qualified would have a Materially Adverse
Effect.
2. The execution and delivery by each Company of each Document to
which it is a party, and performance by each Company of each Document
to which it is a party, are within its corporate powers, have been
duly authorized by all requisite corporate action, and do not and will
not (a) contravene any of the provisions of such Company's Organic
Documents; (b) contravene any existing law, rule or regulation
applicable to such Company, or any court decree or order binding on or
affecting such Company or its properties; (c) result in, or require
the creation or imposition of, any Lien on any of the properties of
such Company pursuant to the provisions of any Contractual Obligation
of such Company; (d) require any authorization or approval from or
other action by, or any notice to or filing with, any governmental
authority or regulatory body or other Person, except such as have been
duly obtained or made and are in full force and effect; or (e)
contravene or conflict with, or constitute a default or breach of, any
Contractual Obligation of such Company.
<PAGE>
November 15, 1996
Page 3
3. Each Document has been duly and validly executed and delivered
by each Company that is a party thereto.
4. To my knowledge, there is no pending or threatened litigation,
action, proceeding or labor controversy affecting any Company, or any
of the properties, businesses, assets or revenues of any Company,
which may have a Materially Adverse Effect, except as disclosed in
Item 7.7 of the Disclosure Schedule, or which purports to affect the
legality, validity or enforceability of the Credit Agreement, the Note
or any other Document.
5. No Company is an "investment company" or is "controlled" by an
"investment company," in each case within the meaning of the
Investment Company Act of 1940, as amended or a "holding company," or
an "affiliate" of a "holding company," in each case within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
6. No Company is engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock, and the
application of the proceeds of the Loans as set forth in the Credit
Agreement will not violate F.R.S. Board Regulations G, T, U or X.
7. Each Document to which any Company is a party constitutes the
valid and binding obligation of such Company, enforceable in
accordance with its terms.
8. The aggregate interest and fees to be paid, and the method of
calculation and payment thereof, in accordance with the Documents are
not usurious under, or otherwise in violation of, the civil usury law
of the State of Ohio.
9. Neither the Administrative Agent nor any Lender is, solely by
reason of the rights and interests conveyed or assigned by the
Documents, required to qualify as a foreign corporation or to file any
designation for service of process or to qualify to do business in the
State of Ohio solely to exercise rights under or with respect to the
Documents.
The above opinions are subject to the following additional
limitations, qualifications and exceptions:
<PAGE>
November 15, 1996
Page 4
A. The effect and application of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other laws now
or hereafter in effect which relate to or limit creditors' rights
generally;
B. The effect and application of general principles of equity,
whether considered in a proceeding in equity or at law;
C. Limitations imposed by or resulting from the exercise by any
court of its discretion; and
D. Limitations imposed by reason of generally applicable public
policy principles or considerations.
I am rendering these opinions in my capacity as a member of the
Bar of the State of Ohio, and I express no opinion in this letter
concerning any law other than the law of the State of Ohio, the
General Corporation Law of the State of Delaware and the federal law
of the United States of America. I assume, with your permission and
without independent review, that insofar as laws other than the law of
the State of Ohio, the General Corporation Law of the State of
Delaware and the federal law of the United States of America may be
applicable to any matters opined to herein, such law is identical to
the law of the State of Ohio, but I express no opinion as to the
extent to which the law of the State of Ohio or the law of any other
jurisdiction may apply.
The opinions expressed herein are solely for your benefit and the
benefit of your assignees and participants in connection with the
Credit Agreement.
Very truly yours,
Jack A. Staph
Senior Vice President,
Secretary and General Counsel
<PAGE>
EXHIBIT F-2
[Mayer, Brown & Platt letterhead]
November 15, 1996
To: The Administrative Agent and
the Lenders party to the Credit
Agreement referred to below on
the date hereof
Re: Revco D.S., Inc.
----------------
Ladies and Gentlemen:
This opinion is being delivered to you pursuant to Section
4.1.6(b) of the Credit Agreement (364 Day Facility), dated as of
November 15, 1996 (the "Credit Agreement"), among Revco D.S., Inc., a
Delaware corporation ("Revco"), Banque Paribas and Bank of America
Illinois (formerly known as Continental Bank) (together the "Lenders")
and Bank of America National Trust and Savings Association as
Administrative Agent (in such capacity, the "Administrative Agent")
for the Lenders. Unless otherwise defined herein or the context
otherwise requires, capitalized terms used herein have the meanings
provided in the Credit Agreement.
We have acted as counsel to the Administrative Agent in
connection with the Credit Documents, and we have participated in the
closing held in connection with the amendment and restatement on the
date hereof.
In so acting, we have examined execution counterparts of the
Credit Documents listed on Schedule I hereto.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as
originals, the conformity to the originals of all such documents
submitted to us as copies, and the due authority of the Persons
executing or delivering the same. We have made no independent
examination of the records of Revco, any Lender or the Administrative
Agent.
As to the factual matters relating to our opinions set forth
herein, we have relied upon the documents that we have examined. As to
matters of law covered by an opinion of counsel referred to in
Schedule I hereto, we have relied solely, without
<PAGE>
November 15, 1996
Page 2
independent verification or investigation as to any of the matters
referred to therein, on such opinion. Our opinions expressed herein
are limited to the law of the State of New York, and we do not express
any opinion concerning any other law.
Based on the foregoing examination of documents and assumptions
and having due regard for legal considerations we deem relevant, we are
of the following opinions:
1. Assuming the due execution and delivery of the Credit
Agreement by the parties thereto, the Credit Agreement
constitutes the legal, valid and binding obligation of Revco
enforceable against Revco in accordance with its terms.
2. The other Credit Documents listed in Schedule I hereto
are substantially responsive to the requirements of Section 4.1
of the Credit Agreement.
Our opinions expressed above are subject to the following
qualifications:
(1) Our opinions in paragraph 1 above are subject to the
effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally
and to the effect of general principles of equity, including
(without limitation) concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law). Such principles of equity are
of general application, and in applying such principles a court,
among other things, might not allow a creditor to accelerate
maturity of a debt upon the occurrence of a default deemed
immaterial or might decline to order Revco or another Obligor to
perform covenants. Such principles applied by a court might
include a requirement that a creditor act with reasonableness and
good faith. Thus, we express no opinion as to the validity or
enforceability of (i) provisions restricting access to legal or
equitable remedies, such as the specific performance of executory
covenants, (ii) provisions that purport to establish evidentiary
standards, (iii) provisions relating to waivers, severability,
indemnity, submissions to jurisdiction, set-off, delay or
omission of enforcement of rights or remedies, and (iv)
provisions purporting to convey rights to Persons other than
parties to the Credit Agreement and the other Credit Documents.
Such requirement might be applied, for example, to the provisions
of the Credit Agreement and the other Credit Documents purporting
to authorize
<PAGE>
November 15, 1996
Page 3
conclusive determinations by the Administrative Agent or any
Lender. Such general principles of equity do not, in our opinion,
make the remedies afforded by the Credit Agreement inadequate for
the practical realization of the respective benefits intended to
be provided thereby, except for the economic consequences
resulting from any delay imposed by, or any procedure required
by, applicable New York laws, rules, regulations and court
decisions and by constitutional requirements in and out of the
State of New York.
(2) We express no opinion whatsoever as to the applicability
(and, if applicable, the effect) of Section 548 of the Federal
Bankruptcy Code, or any comparable provisions of state or foreign
law, to or on any of the Credit Documents.
(3) We express no opinion as to the effect of the law of any
jurisdiction other than the State of New York wherein any Lender
may be located or wherein enforcement of the Credit Agreement or
the Note may be sought which limits the rates of interest legally
chargeable or collectible.
(4) We also express no opinion as to the enforceability of
any provision purporting to provide indemnification or
contribution relating to matters under Federal or state
securities laws.
This opinion is furnished by us, as counsel to the Administrative
Agent, to you and may not be used or relied upon by any other Person
or for any other purpose.
Very truly yours,
MAYER, BROWN & PLATT
By:
---------------------
J. Paul Forrester
<PAGE>
SCHEDULE I
1. Credit Agreement
2. Note
3. Debt Registration Agreement
4. Opinion of Jack A. Staph
<PAGE>
EXHIBIT I
DEBT REGISTRATION AGREEMENT
Date: November 15, 1996
Reference is made to the Collateral Agency Agreement dated as of
July 15, 1994 (as the same may be amended, supplemented, restated, or
otherwise modified or replaced from time to time, the "Collateral
Agency Agreement"; capitalized terms not otherwise defined herein
being used herein as defined in the Collateral Agency Agreement),
among Revco D.S., Inc. (the "Company"), Chemical Bank, as Collateral
Agent, Continental Bank, as HSI Agent, Continental Bank, as Senior
Credit Agent, First Fidelity Bank, National Association, New Jersey,
as Senior Note Trustee and various other Holders of Secured
Obligations.
By executing and delivering this Debt Registration Agreement and,
upon the acceptance and recordation hereof by the Collateral Agent in
accordance with Section 5.4 of the Collateral Agency Agreement, Bank
of America National Trust and Savings Association (the "Holder
Representative") hereby agrees on behalf of itself and the Holders it
represents to be bound by all the terms and provisions of the
Collateral Agency Agreement applicable to a Holder and a Holder
Representative, as applicable, of Secured Obligations, and the address
set out under its signature below shall constitute its address for the
purposes of Section 5.2 until changed in accordance therewith.
The Company and the Holder Representative each hereby confirms
that (i) the Holder Representative represents Holders of Permitted
Additional Indebtedness (as defined in the Credit Agreement), (ii)
furnished herewith is a true and complete copy of the agreement of the
Holder Representative and the Holders it represents evidencing the
Permitted Additional Indebtedness (as defined in the Credit Agreement)
to be registered hereunder, and (iii) the current outstanding
principal amount of such Permitted Additional Indebtedness (as defined
in the Credit Agreement) is $0.
This Debt Registration Agreement shall be construed in accordance
with and governed by the laws of the State of New York without regard
to conflicts of law principles.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Debt
Registration Agreement to be executed as of the day and year first
written above.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:
-----------------------------
Name:
Title:
Address: 231 South LaSalle Street
Chicago, Illinois 60697
Telephone No.: (312) 828-6517
Facsimile No.: (312) 828-3555
Attention: Eric Schubert
Managing Director
REVCO D.S., INC.
By:
-----------------------------
Name:
Title:
