SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
SCHEDULE 14D-1
AMENDMENT NO. 11
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE
ACT OF 1934
AND
SCHEDULE 13D
AMENDMENT NO. 11
UNDER THE SECURITIES EXCHANGE ACT OF 1934
_____________
REVCO D.S., INC.
(Name of Subject Company)
_____________
RITE AID CORPORATION
OCEAN ACQUISITION CORPORATION
(Bidders)
_____________
COMMON STOCK, PAR VALUE, $.01 PER SHARE
(Title of Class of Securities)
_____________
761339 10 0
(CUSIP Number of Class of Securities)
_________________
FRANKLIN C. BROWN, ESQ.
EXECUTIVE VICE PRESIDENT AND CHIEF LEGAL COUNSEL
RITE AID CORPORATION
30 HUNTER LANE
CAMP HILL, PENNSYLVANIA 17011
TELEPHONE: (717) 761-2633
(Name, Address and Telephone Number of Person Authorized
to
Receive Notices and Communications on Behalf of Bidders)
With a Copy to:
NANCY A. LIEBERMAN, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 735-3000
_______________
Ocean Acquisition Corporation, a Delaware corporation
(the "Purchaser") and a wholly owned subsidiary of Rite Aid
Corporation, a Delaware corporation ("Parent"), and Parent
hereby amend and supplement their Statement on Schedule 14D-
1 (the "Schedule 14D-1"), filed with the Securities Exchange
Commission (the "Commission") on December 4, 1995, with
respect to the Purchaser's offer to purchase 35,144,833
shares of common stock, par value $.01 per share (the
"Shares"), of Revco D.S., Inc., a Delaware corporation (the
"Company"), at a price of $27.50 per Share, net to the
seller in cash, (such price, or such higher price per Share
as may be paid in the Offer, the "Offer Price") upon the
terms and subject to the conditions set forth in the Offer
to Purchase and in the related Letter of Transmittal (which,
as amended from time to time, together constitute the
"Offer"). This Amendment No. 11 to the Schedule 14D-1 also
constitutes Amendment No. 11 to the Statement on Schedule
13D of the Purchaser and Parent. The item numbers and
responses thereto below are in accordance with the
requirements of Schedule 14D-1.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(b) Parent has entered into a definitive Credit
Agreement (the "Credit Agreement") with Morgan Guaranty
Trust Company of New York, as Agent ("Morgan Guaranty"), and
the other banks therein (the "Banks") which provides Parent
with a revolving credit facility in the amount of $2.5
billion (the "Credit Facility") which will terminate, and
all outstanding loans shall be due and payable, on February
15, 2001. The Credit Agreement requires that (x) the
commitments thereunder be reduced to $1.5 billion no later
than the second anniversary of the closing date of the Offer
and (y) that the net cash proceeds from the issuance by
Parent of any equity or long term debt securities be applied
to the reduction of the commitments until they have been so
reduced to $1.5 billion.
The Credit Agreement provides that the interest rate on
base rate loans from the Banks under the Credit Facility is
to be at a rate per annum equal to the higher of (i) the
prime rate and (ii) the sum of 1/2 of 1% plus the rate per
annum equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers.
The Credit Facility provides for other interest rates with
respect to CD loans, Euro-Dollar loans, and money-market
London Interbank Offered Rate loans. The effective interest
rate will vary depending on the ratings of Parent's long
term senior debt.
The Credit Agreement contains certain covenants
including, among others, (i) restrictions that the aggregate
amount of indebtedness of Parent and its subsidiaries will
not exceed $3 billion at any time prior to February 15,
1997, (ii) restrictions on sales with leases back, (iii)
maintenance of a maximum leverage ratio (debt to equity)
with required reductions over time, (iv) maintenance of a
minimum fixed charge coverage ratio that increases over
time, (v) restrictions on subsidiaries indebtedness and (vi)
restrictions on consolidations, merger, sales of assets,
minority investments and the creation of liens.
In order to consummate the Offer, Parent expects to
obtain approximately $966.5 million pursuant to the Credit
Agreement. In the event that the average per share value of
Parent Common Stock determined during the Pricing Period is
less than $27.50, Parent will obtain additional funds pursuant
to the Credit Agreement and/or Parent's working capital in order
to deliver any Cash Adjustment Amount to the Company's
stockholders (but only in the event such an election to pay
the Cash Adjustment Amount is made by Parent).
In the event Parent becomes obligated to deliver the
Additional Consideration pursuant to the Merger Agreement,
Parent will obtain the additional funds needed pursuant to
the Credit Agreement and/or Parent's working capital.
Any remaining costs of the Offer and the Merger will be
obtained from funds pursuant to the Credit Agreement and/or
Parent's working capital.
No final decisions have been made concerning the method
Parent will employ to repay such indebtedness. Such
decisions when made will be based on Parent's review from
time to time of the advisability of particular actions, as
well as on prevailing interest rates and financial and other
economic conditions.
A copy of the Credit Agreement is filed herewith as
Exhibit (b)(3) and is incorporated herein by reference.
ITEM 10. ADDITIONAL INFORMATION.
(f) On March 20, 1996, Parent issued a press release
which announced, among other things, that Parent and the
Purchaser have extended the expiration date of the Offer to
11:59 p.m., New York City time, on Tuesday, April 9, 1996.
The Offer had previously been scheduled to expire at 11:59
p.m., New York City time, on Tuesday, March 26, 1996. A
copy of the press release is filed herewith as Exhibit
(a)(19) and is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(19) Text of Press Release, dated March 20, 1996,
issued by Parent.
(b)(3) Credit Agreement by and among Rite Aid
Corporation and the banks named therein and
Morgan Guaranty Trust Company of New York, as
Agent, dated as of March 15, 1996.
SIGNATURES
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
Dated: March 20, 1996
RITE AID CORPORATION
By: /s/ Martin L. Grass
Name: Martin L. Grass
Title: Chairman of the Board and
Chief Executive Officer
OCEAN ACQUISITION CORPORATION
By: /s/ Martin L. Grass
Name: Martin L. Grass
Title: President
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
(a)(19) Text of Press Release, dated March 20,
1996, issued by Parent.
(b)(3) Credit Agreement by and among Rite Aid
Corporation and the banks named
therein and Morgan Guaranty Trust
Company of New York, as Agent, dated
as of March 15, 1996.
(RITE AID
CORPORATION - LOGO)
CONTACTS:
MEDIA: INVESTORS:
SUZANNE MEAD FRANK BERGONZI
VP Corporate Communications Executive VP and CFO
(717) 975-5887 (717) 975-5750
JOELE FRANK/LISSA WEINMANN
Abernathy MacGregor Scanlon
(212) 371-5999
FOR IMMEDIATE RELEASE
RITE AID EXTENDS OFFER FOR REVCO
____________________
CAMP HILL, PA, MARCH 20, 1996 -- Rite Aid
Corporation (RAD: NYSE, PSE) announced today that it has
voluntarily agreed with the Federal Trade Commission to a
rolling 10-day extension, commencing today, to the Hart-
Scott-Rodino waiting period in connection with Rite Aid's
proposed acquisition of Revco D.S., Inc. (RXR: NYSE).
Accordingly, Rite Aid and its subsidiary Ocean Acquisition
Corporation also announced that they have extended the
expiration date of Ocean Acquisition's $27.50 per share
cash tender offer to purchase 35,144,833 shares of common
stock of Revco to 11:59 p.m., New York City time, on
Tuesday, April 9, 1996. The offer had previously been
scheduled to expire at 11:59 p.m. on Tuesday, March 26,
1996. As of 5:00 p.m., New York City time, on Tuesday,
March 19, 1996, 23,146,089 shares of Revco common stock
had been validly tendered in the offer.
As previously announced, the tender offer is
being made pursuant to a merger agreement between Rite
Aid, Ocean Acquisition and Revco. The tender offer will
be followed by a second-step merger in which each share of
Revco not acquired in the tender offer will be converted
into the right to receive Rite Aid common stock and/or
under certain circumstances, cash.
Rite Aid Corporation, based in Camp Hill,
Pennsylvania, is the nation's largest drugstore chain,
with over 2,700 stores in 21 states and the District of
Columbia.
General information about Rite Aid including
corporate background and press releases is available, free
of charge, through the company's News-On-Demand fax
service at (800) 916-7788.
$2,500,000,000
CREDIT AGREEMENT
dated as of
March 15, 1996
among
Rite Aid Corporation,
The Banks from time to time
parties hereto
and
Morgan Guaranty Trust Company of New York,
as Agent
TABLE OF CONTENTS(1)
Page
ARTICLE I.
DEFINITIONS
SECTION 1.1 Definitions . . . . . . . . . . .
SECTION 1.2 Accounting Terms and
Determinations . . . . . . . . .
SECTION 1.3 Types of Borrowings . . . . . . .
ARTICLE II.
THE CREDITS
SECTION 2.1 Commitments to Lend . . . . . . .
SECTION 2.2 Notice of Committed Borrowings .
SECTION 2.3 Money Market Borrowings . . . . .
SECTION 2.4 Notice to Banks; Funding of
Loans . . . . . . . . . . . . .
SECTION 2.5 Notes . . . . . . . . . . . . . .
SECTION 2.6 Maturity of Loans . . . . . . . .
SECTION 2.7 Interest Rates . . . . . . . . .
SECTION 2.8 Fees . . . . . . . . . . . . . .
SECTION 2.9 Optional Termination or
Reduction of Commitments . . . .
SECTION 2.10 Mandatory Termination and
Reduction of Commitments . . . .
SECTION 2.11 Optional Prepayments . . . . . .
SECTION 2.12 General Provisions as to
Payments . . . . . . . . . . . .
SECTION 2.13 Funding Losses . . . . . . . . .
SECTION 2.14 Computation of Interest and
Fees . . . . . . . . . . . . . .
ARTICLE III.
CONDITIONS
SECTION 3.1 Effectiveness . . . . . . . . . .
SECTION 3.2 Borrowings . . . . . . . . . . .
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Corporate Existence and Power . .
SECTION 4.2 Corporate and Governmental
Authorization; No Contravention .
SECTION 4.3 Binding Effect . . . . . . . . .
SECTION 4.4 Financial Information . . . . . .
SECTION 4.5 Full Disclosure . . . . . . . . .
SECTION 4.6 Litigation . . . . . . . . . . .
SECTION 4.7 Compliance with ERISA . . . . . .
SECTION 4.8 Taxes . . . . . . . . . . . . . .
SECTION 4.9 Subsidiaries . . . . . . . . . .
SECTION 4.10 Environmental Matters . . . . . .
SECTION 4.11 Merger Agreement . . . . . . . .
1 The Table of Contents is not a part of this Agreement.
ARTICLE V.
COVENANTS
SECTION 5.1 Information . . . . . . . . . . .
SECTION 5.2 Payment of Obligations . . . . .
SECTION 5.3 Maintenance of Property;
Insurance . . . . . . . . . . . .
SECTION 5.4 Conduct of Business and
Maintenance of Existence . . . .
SECTION 5.5 Compliance with Laws . . . . . .
SECTION 5.6 Inspection of Property, Books
and Records . . . . . . . . . . .
SECTION 5.7 Restriction on Debt of
Subsidiaries . . . . . . . . . .
SECTION 5.8 Restriction on Sales with Leases
Back . . . . . . . . . . . . . .
SECTION 5.9 Restriction on Liens . . . . . .
SECTION 5.10 Leverage Ratio . . . . . . . . .
SECTION 5.11 Fixed Charge Coverage . . . . . .
SECTION 5.12 Limitation on Debt . . . . . . .
SECTION 5.13 Limitation on Minority
Investments . . . . . . . . . . .
SECTION 5.14 Consolidations, Mergers and
Sales of Assets . . . . . . . . .
SECTION 5.15 Use of Proceeds . . . . . . . . .
SECTION 5.16 Existing Revco Debt Retirement .
SECTION 5.17 Merger . . . . . . . . . . . . .
ARTICLE VI.
DEFAULTS
SECTION 6.1 Events of Default . . . . . . . .
SECTION 6.2 Notice of Default . . . . . . . .
ARTICLE VII.
THE AGENT
SECTION 7.1 Appointment and Authorization . .
SECTION 7.2 Agent and Affiliates . . . . . .
SECTION 7.3 Action by Agent . . . . . . . . .
SECTION 7.4 Consultation with Experts . . . .
SECTION 7.5 Liability of Agent . . . . . . .
SECTION 7.6 Indemnification . . . . . . . . .
SECTION 7.7 Credit Decision . . . . . . . . .
SECTION 7.8 Successor Agent . . . . . . . . .
SECTION 7.9 Agent's Fee . . . . . . . . . . .
ARTICLE VIII.
CHANGE IN CIRCUMSTANCES
SECTION 8.1 Basis for Determining Interest
Rate Inadequate or Unfair . . . .
SECTION 8.2 Illegality . . . . . . . . . . .
SECTION 8.3 Increased Cost and Reduced
Return . . . . . . . . . . . . .
SECTION 8.4 Taxes . . . . . . . . . . . . . .
SECTION 8.5 Base Rate Loans Substituted for
Affected Fixed Rate Loans . . . .
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1 Notices . . . . . . . . . . . . .
SECTION 9.2 No Waivers . . . . . . . . . . .
SECTION 9.3 Expenses; Indemnification . . . .
SECTION 9.4 Sharing of Set-Offs . . . . . . .
SECTION 9.5 Amendments and Waivers . . . . .
SECTION 9.6 Successors and Assigns . . . . .
SECTION 9.7 Collateral . . . . . . . . . . .
SECTION 9.8 Governing Law; Submission to
Jurisdiction . . . . . . . . . .
SECTION 9.9 Counterparts; Integration . . . .
SECTION 9.10 WAIVER OF JURY TRIAL . . . . . .
Pricing Schedule
Exhibit A - Note
Exhibit B - Form of Money Market Quote Request
Exhibit C - Form of Invitation for Money Market Quotes
Exhibit D - Form of Money Market Quote
Exhibit E-1 - Opinion of Special Counsel for the
Borrower
Exhibit E-2 - Opinion of Chief Legal Counsel of the
Borrower
Exhibit F - Opinion of Davis Polk & Wardwell, Special
Counsel for the Agent
Exhibit G - Assignment and Assumption Agreement
CREDIT AGREEMENT
AGREEMENT dated as of March 15, 1996 among RITE
AID CORPORATION, the BANKS from time to time parties
hereto and MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as
Agent.
The parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Definitions. The following terms,
as used herein, have the following meanings:
"Absolute Rate Auction" means a solicitation of
Money Market Quotes setting forth Money Market Absolute
Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in
Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.07(c).
"Administrative Questionnaire" means, with
respect to each Bank, an administrative questionnaire in
the form prepared by the Agent and submitted to the Agent
(with a copy to the Borrower) duly completed by such
Bank.
"Agent" means Morgan Guaranty Trust Company of
New York in its capacity as agent for the Banks
hereunder, and its successors in such capacity.
"Applicable Lending Office" means, with respect
to any Bank, (i) in the case of its Domestic Loans, its
Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and
(iii) in the case of its Money Market Loans, its Money
Market Lending Office.
"Assessment Rate" has the meaning set forth in
Section 2.07(b).
"Assignee" has the meaning set forth in Section
9.06(c).
"Attributable Debt" means, as to any particular
Sale and Leaseback Transaction under which the Borrower
or any Subsidiary is at the time liable, at any date as
of which the amount thereof is to be determined (i) in
the case of any such transaction involving a Capital
Lease, the amount on such date of the Capital Lease
Obligation thereunder, or (ii) in the case of any other
Sale and Leaseback Transaction, the then present value of
the minimum rental obligations under such Sale and
Leaseback Transaction during the remaining term thereof
(after giving effect to any extensions at the option of
the lessor) computed by discounting the respective rental
payments at the actual interest factor included in such
payments or, if such interest factor cannot be readily
determined, at the rate of 14% per annum. The amount of
any rental payment required to be made under any such
Sale and Leaseback Transaction not involving a Capital
Lease may exclude amounts required to be paid by the
lessee on account of maintenance and repairs, insurance,
taxes, assessments, utilities, operating and labor costs
and similar charges.
"Bank" means each bank listed on the signature
pages hereof, each Assignee which becomes a Bank pursuant
to Section 9.06(c), and their respective successors.
"Base Rate" means, for any day, a rate per annum
equal to the higher of (i) the Prime Rate for such day
and (ii) the sum of 1/2 of 1% plus the Federal Funds Rate
for such day.
"Base Rate Loan" means a Committed Loan to be
made by a Bank as a Base Rate Loan in accordance with the
applicable Notice of Committed Borrowing or pursuant to
Article VIII.
"Benefit Arrangement" means at any time an
employee benefit plan within the meaning of Section 3(3)
of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means Rite Aid Corporation, a Delaware
corporation, and its successors.
"Borrower's 1995 Form 10-K" means the Borrower's
annual report on Form 10-K for 1995, as filed with the
Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended.
"Borrowing" has the meaning set forth in Section
1.03.
"Capital Lease" means any lease of property
which, in accordance with generally accepted accounting
principles, should be capitalized on the lessee's balance
sheet; and "Capital Lease Obligation" means the amount of
the liability so capitalized in respect of a Capital
Lease.
"CD Base Rate" has the meaning set forth in
Section 2.07(b).
"CD Loan" means a Committed Loan to be made by a
Bank as a CD Loan in accordance with the applicable
Notice of Committed Borrowing.
"CD Reference Banks" means Citibank, N.A., Mellon
Bank N.A. and Morgan Guaranty Trust Company of New York.
"Commitment" means, with respect to each Bank,
the amount set forth opposite the name of such Bank on
the signature pages hereof, as such amount may be reduced
from time to time pursuant to Sections 2.09 and 2.10.
"Commitment Reduction Date" has the meaning set
forth in Section 2.10(b).
"Committed Loan" means a loan made by a Bank
pursuant to Section 2.01.
"Consolidated Debt" means at any date the Debt of
the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis as of such date.
"Consolidated EBIT" means, for any period,
Consolidated Net Income for such period plus, to the
extent deducted in determining Consolidated Net Income
for such period, the aggregate amount of (i) Consolidated
Interest Charges and (ii) provision for income taxes.
"Consolidated Interest Charges" means, for any
period, the aggregate amount of interest charges, whether
expensed or capitalized, incurred or accrued by the
Borrower and its Consolidated Subsidiaries during such
period.
"Consolidated Net Income" means, for any period,
the net income (or loss) of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated
basis for such period.
"Consolidated Net Tangible Assets" means the
total amount of assets (less applicable reserves and
other properly deductible items) which under generally
accepted accounting principles would be included on a
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries after deducting therefrom (i)
all liabilities and liability items, including amounts
in respect of obligations or guarantees of obligations
under leases, which under generally accepted accounting
principles would be included on such balance sheet,
except Funded Debt, capital stock and surplus, surplus
reserves and provisions for deferred income taxes, and
(ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like
intangibles, which in each case under generally accepted
accounting principles would be included on such
consolidated balance sheet.
"Consolidated Net Worth" means at any date the
consolidated stockholders' equity of the Borrower and its
Consolidated Subsidiaries determined as of such date.
"Consolidated Rent" means, for any period, the
consolidated rental expense of the Borrower and its
Consolidated Subsidiaries for such period.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its
consolidated financial statements if such statements were
prepared as of such date.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay
the deferred purchase price of property or services,
except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person
as lessee which are capitalized in accordance with
generally accepted accounting principles, (v) all Debt
secured by a Lien on any asset of such Person, whether or
not such Debt is otherwise an obligation of such Person,
and (vi) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving
of notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks
in New York City are authorized by law to close.
"Domestic Lending Office" means, as to each Bank,
its office located at its address set forth in its
Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending
Office) or such other office as such Bank may hereafter
designate as its Domestic Lending Office by notice to the
Borrower and the Agent; provided that any Bank may so
designate separate Domestic Lending Offices for its Base
Rate Loans, on the one hand, and its CD Loans, on the
other hand, in which case all references herein to the
Domestic Lending Office of such Bank shall be deemed to
refer to either or both of such offices, as the context
may require.
"Domestic Loans" means CD Loans or Base Rate
Loans or both.
"Domestic Reserve Percentage" has the meaning set
forth in Section 2.07(b).
"Effective Date" means the date this Agreement
becomes effective in accordance with Section 3.01.
"Environmental Laws" means any and all federal,
state, local and foreign statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or
other governmental restrictions relating to the
environment or to emissions, discharges or releases of
pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous
substances or wastes into the environment including,
without limitation, ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants,
contaminants, petroleum or petroleum products, chemicals
or industrial, toxic or hazardous substances or wastes or
the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor
statute.
"ERISA Group" means the Borrower, any Subsidiary
and all members of a controlled group of corporations and
all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower or
any Subsidiary, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic
Business Day on which commercial banks are open for
international business (including dealings in dollar
deposits) in London.
"Euro-Dollar Lending Office" means, as to each
Bank, its office, branch or affiliate located at its
address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch
or affiliate of such Bank as it may hereafter designate
as its Euro-Dollar Lending Office by notice to the
Borrower and the Agent.
"Euro-Dollar Loan" means a Committed Loan to be
made by a Bank as a Euro-Dollar Loan in accordance with
the applicable Notice of Committed Borrowing.
"Euro-Dollar Reference Banks" means the principal
London offices of Citibank, N.A., Mellon Bank N.A. and
Morgan Guaranty Trust Company of New York.
"Euro-Dollar Reserve Percentage" has the meaning
set forth in Section 2.07(c).
"Existing Revco Debt" means (i) Debt under the
Revco Bank Agreement, (ii) the 9 1/8% Senior Notes Due
2000 issued by Revco and (iii) the 10 1/8% Senior Notes
Due June 1, 2002 issued by Hook.
"Event of Default" has the meaning set forth in
Section 6.01.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upward, if necessary, to the nearest
1/100th 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 Domestic Business Day next
succeeding such day, provided that (i) if such day is not
a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next
preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no
such rate is so published on such next succeeding
Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Morgan Guaranty
Trust Company of New York on such day on such
transactions as determined by the Agent.
"Fixed Charge Coverage Ratio" means, at any date,
the ratio of (i) Consolidated EBIT plus Consolidated Rent
to (ii) Consolidated Interest Charges plus Consolidated
Rent, in each case for the period of four consecutive
fiscal quarters most recently ended on or prior to such
date; provided that for the purpose of calculating such
ratio, no effect shall be given to restructuring and
similar charges (to the extent the aggregate pre-tax
amount thereof does not exceed $163,000,000) taken by the
Borrower in connection with the transactions contemplated
by the Merger Agreement.
"Fixed Rate Borrowing" means a Borrowing
comprised of Fixed Rate Loans.
"Fixed Rate Loans" means CD Loans or Euro-Dollar
Loans or Money Market Loans (excluding Money Market LIBOR
Loans bearing interest at the Base Rate pursuant to
Section 8.01(a)) or any combination of the foregoing.
"Funded Debt" means any Debt maturing more than
one year after the date of determination thereof and any
Debt, regardless of its term, renewable pursuant to the
terms thereof or of a revolving credit or similar
agreement effective for more than one year after the date
of the creation of such Debt, which would, in accordance
with generally accepted accounting practice, be
classified as funded debt but shall not include:
(a) any Debt for the payment, redemption or
satisfaction of which money (or evidences of
indebtedness, if permitted under the instrument
creating such indebtedness) in the necessary amount
shall have been deposited in trust with a trustee or
proper depository either at or before maturity or
redemption date thereof; or
(b) guarantees arising in connection with the
sale, discount, guarantee or pledge of notes,
chattel mortgages, leases, accounts receivable,
trade acceptances and other paper arising, in the
ordinary course of business, out of instalment or
conditional sales to or by, or transactions
involving title retention with, distributors,
dealers or other customers of merchandise, equipment
or services or guarantees other than guarantees of
indebtedness for borrowed money.
"FYE" and "FQE" mean fiscal year end and fiscal
quarter end, respectively, and when used in conjunction
with a particular month mean the date of ending of the
relevant fiscal period nearest the last day of such
month.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt of any other Person;
provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary
course of business. The term "Guarantee" used as a verb
has a corresponding meaning.
"Hook" means Hook SupeRx, Inc., a Delaware
corporation.
"Indemnitee" has the meaning set forth in Section
9.03(b).
"Interest Period" means: (1) with respect to
each Euro-Dollar Borrowing, the period commencing on the
date of such Borrowing and ending one, two, three or six
months thereafter, as the Borrower may elect in the
applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such
Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the
last Euro-Dollar 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, subject to clause
(c) below, end on the last Euro-Dollar Business Day
of a calendar month; and
(c) if any Interest Period includes a date on
which a payment of principal of the Loans is required
(based on circumstances existing at the first day of
such Interest Period) to be made under Section 2.10
but does not end on such date, then (i) the principal
amount (if any) of each Euro-Dollar Loan required to
be repaid on such date shall have an Interest Period
ending on such date and (ii) the remainder (if any) of
each such Euro-Dollar Loan shall have an Interest
Period determined as set forth above.
(2) with respect to each CD Borrowing, the period
commencing on the date of such Borrowing and ending
(subject to Section 2.07(b)) 30, 60, 90 or 180 days
thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar
Business Day; and
(b) if any Interest Period includes a date on
which a payment of principal of the Loans is required
(based on circumstances existing at the first day of
such Interest Period) to be made under Section 2.10
but does not end on such date, then (i) the principal
amount (if any) of each CD Loan required to be repaid
on such date shall have an Interest Period ending on
such date and (ii) the remainder (if any) of each such
CD Loan shall have an Interest Period determined as
set forth above.
(3) with respect to each Base Rate Borrowing, the
period commencing on the date of such Borrowing and
ending 30 days thereafter; provided that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar
Business Day; and
(b) if any Interest Period includes a date on
which a payment of principal of the Loans is required
(based on circumstances existing at the first day of
such Interest Period) to be made under Section 2.10
but does not end on such date, then (i) the principal
amount (if any) of each Base Rate Loan required to be
repaid on such date shall have an Interest Period
ending on such date and (ii) the remainder (if any) of
each such Base Rate Loan shall have an Interest Period
determined as set forth above.
(4) with respect to each Money Market LIBOR
Borrowing, the period commencing on the date of such
Borrowing and ending such whole number of months
thereafter as the Borrower may elect in accordance with
Section 2.03; provided that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such
Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the
last Euro-Dollar 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, subject to clause
(c) below, end on the last Euro-Dollar Business Day
of a calendar month; and
(c) if any Interest Period includes a date on
which a payment of principal of the Loans is required
(based on circumstances existing at the first day of
such Interest Period) to be made under Section 2.10
but does not end on such date, then (i) the principal
amount (if any) of each Money Market LIBOR Loan
required to be repaid on such date shall have an
Interest Period ending on such date and (ii) the
remainder (if any) of each such Money Market LIBOR
Loan shall have an Interest Period determined as set
forth above.
(5) with respect to each Money Market Absolute Rate
Borrowing, the period commencing on the date of such
Borrowing and ending such number of days thereafter (but
not less than 14 days) as the Borrower may elect in
accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise
end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar
Business Day; and
(b) if any Interest Period includes a date on
which a payment of principal of the Loans is
required (based on circumstances existing at the
first day of such Interest Period) to be made under
Section 2.10 but does not end on such date, then (i)
the principal amount (if any) of each Money Market
Absolute Rate Loan required to be repaid on such
date shall have an Interest Period ending on such
date and (ii) the remainder (if any) of each such
Money Market Absolute Rate Loan shall have an
Interest Period determined as set forth above.
"Internal Revenue Code" means the Internal
Revenue Code of 1986, as amended, or any successor
statute.
"Investment" means any investment in any Person,
whether by means of share purchase, capital contribution,
loan, time deposit or otherwise. Any repurchase by the
Borrower of its own capital stock shall not constitute an
Investment for purposes of this Agreement.
"LIBOR Auction" means a solicitation of Money
Market Quotes setting forth Money Market Margins based on
the London Interbank Offered Rate pursuant to Section
2.03.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset. For
the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale
agreement, Capital Lease or other title retention
agreement relating to such asset.
"Loan" means a Domestic Loan or a Euro-Dollar
Loan or a Money Market Loan and "Loans" means Domestic
Loans or Euro-Dollar Loans or Money Market Loans or any
combination of the foregoing.
"London Interbank Offered Rate" has the meaning
set forth in Section 2.07(c).
"Margin Stock" means "margin stock" as such term
is defined in Regulation U of the Federal Reserve Board,
as the same may be amended, supplemented or modified from
time to time.
"Material Debt" means Debt (other than the Notes)
of the Borrower and/or one or more of its Subsidiaries,
arising in one or more related or unrelated transactions,
in an aggregate principal amount exceeding $25,000,000.
"Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of
$25,000,000.
"Merger" means the merger of Ocean Acquisition
into Revco pursuant to the Merger Agreement.
"Merger Agreement" means the Agreement and Plan
of Merger dated as of November 29, 1995 among the
Borrower, Ocean Acquisition and Revco, as amended from
time to time in accordance with its terms; provided that
no such amendment shall be effective for purposes of
references thereto in this Agreement unless approved in
writing by the Required Banks.
"Money Market Absolute Rate" has the meaning set
forth in Section 2.03(d).
"Money Market Absolute Rate Loan" means a loan to
be made by a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each
Bank, its Domestic Lending Office or such other office,
branch or affiliate of such Bank as it may hereafter
designate as its Money Market Lending Office by notice to
the Borrower and the Agent; provided that any Bank may
from time to time by notice to the Borrower and the
Agent designate separate Money Market Lending Offices for
its Money Market LIBOR Loans, on the one hand, and its
Money Market Absolute Rate Loans, on the other hand, in
which case all references herein to the Money Market
Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may
require.
"Money Market LIBOR Loan" means a loan to be made
by a Bank pursuant to a LIBOR Auction (including such a
loan bearing interest at the Base Rate pursuant to
Section 8.01(a)).
"Money Market Loan" means a Money Market LIBOR
Loan or a Money Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth
in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to
make a Money Market Loan in accordance with Section 2.03.
"Multiemployer Plan" means at any time an
employee pension benefit plan within the meaning of
Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to
make contributions or has within the preceding five plan
years made contributions, including for these purposes
any Person which ceased to be a member of the ERISA Group
during such five year period.
"1994 Credit Agreements" means the $350,000,000
Credit Agreement and the $250,000,000 Credit Agreement,
each dated as of February 7, 1994 among Rite Aid
Corporation, the banks listed therein and Morgan Guaranty
Trust Company of New York, as agent thereunder, each as
amended from time to time.
"Net Cash Proceeds" means the total amount of
cash proceeds received by the Borrower or any Subsidiary
in respect of any Reduction Event, less reasonable
underwriters' fees, brokerage commissions, related
professional fees and other customary out-of-pocket
expenses payable by the Borrower in connection with such
Reduction Event.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing
the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued
hereunder.
"Notice of Borrowing" means a Notice of Committed
Borrowing (as defined in Section 2.02) or a Notice of
Money Market Borrowing (as defined in Section 2.03(f)).
"Ocean Acquisition" means Ocean Acquisition
Corporation, a Delaware corporation and a Wholly-Owned
Consolidated Subsidiary of the Borrower.
"Offer" means the offer by Ocean Acquisition to
purchase 35,144,833 shares of common stock, par value
$.01 per share of Revco (the "Shares") or such number of
Shares as equals 50.1% of the Shares outstanding on a
fully diluted basis pursuant to the Offer to Purchase.
"Offer to Purchase" means the Offer to Purchase
dated December 4, 1995 by Ocean Acquisition to the
stockholders of Revco, as amended from time to time in
accordance with its terms; provided that no such
amendment shall be effective for purposes of references
thereto in this Agreement unless approved in writing by
the Required Banks.
"Parent" means, with respect to any Bank, any
Person controlling such Bank.
"Participant" has the meaning set forth in
Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.
"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity
or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension
benefit plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Internal
Revenue Code and either (i) is maintained, or
contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has
at any time within the preceding five years been
maintained, or contributed to, by any Person which was at
such time a member of the ERISA Group for employees of
any Person which was at such time a member of the ERISA
Group.
"Pricing Schedule" means the Schedule attached
hereto identified as such.
"Prime Rate" means the rate of interest publicly
announced by Morgan Guaranty Trust Company of New York in
New York City from time to time as its Prime Rate.
"Reduction Event" means any issuance by the
Borrower or any of its Subsidiaries of any equity
securities or any debt securities with a maturity in
excess of one year (other than Debt incurred under this
Agreement).
"Reference Banks" means the CD Reference Banks or
the Euro-Dollar Reference Banks, as the context may
require, and "Reference Bank" means any one of such
Reference Banks.
"Refunding Borrowing" means a Committed Borrowing
which, after application of the proceeds thereof, results
in no net increase in the outstanding principal amount of
Committed Loans made by any Bank.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System, as in effect
from time to time.
"Required Banks" means at any time Banks having
at least 66 2/3% of the aggregate amount of the
Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 66 2/3% of
the aggregate unpaid principal amount of the Loans.
"Revco" means Revco, D.S., Inc., a Delaware
corporation, and its successors, including without
limitation the Person surviving the Merger.
"Revco Bank Agreement" means the Amended and
Restated Credit Agreement dated as of July 27, 1995 among
Revco, the revolving lenders listed therein, Banque
Paribas and Bank of America Illinois, as managing agents
and Bank of America National Trust and Savings
Association, as administrative agent, as amended from
time to time.
"Revco Debt Reduction Borrowing" means any
Borrowing hereunder if and to the extent the proceeds
thereof are used on the date of such Borrowing to reduce
Existing Revco Debt.
"Revco Debt Reduction Reserve" means, at any
date, the amount equal to the lesser of (i) $685,000,000
and (ii) the aggregate amount of Existing Revco Debt at
such date, reduced by the amount of any Revco Debt
Reduction Borrowing hereunder on such date.
"Revolving Credit Period" means the period from
and including the Effective Date to but not including the
Termination Date.
"Sale and Leaseback Transaction" has the meaning
set forth in Section 5.08.
"Secured Debt" means indebtedness for borrowed
money which is secured by a Lien on property of the
Borrower or any Subsidiary, but shall not include
guarantees arising in connection with the sale, discount,
guarantee or pledge of notes, chattel mortgages, leases,
accounts receivable, trade acceptances and other papers
arising, in the ordinary course of business, out of
instalment or conditional sales to or by, or transactions
involving title retention with, distributors, dealers or
other customers, of merchandise, equipment or services.
"Significant Subsidiary" means at any time any
Subsidiary or any group of Subsidiaries having
consolidated assets, individually or in the aggregate,
equal to or greater than 8% of the consolidated assets of
the Borrower and its Consolidated Subsidiaries at such
time.
"Subsidiary" means any corporation or other
entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the
board of directors or other persons performing similar
functions are at the time directly or indirectly owned by
the Borrower.
"Temporary Cash Investment" means any Investment
in (i) direct obligations of the United States or any
agency thereof, or obligations guaranteed by the United
States or any agency thereof, (ii) commercial paper rated
at least A-1 by S&P (as defined in the Pricing Schedule)
and P-1 by Moody's (as defined in the Pricing Schedule),
(iii) time deposits with, including certificates of
deposit issued by, any office located in the United
States of any bank or trust company which is organized
under the laws of the United States or any state thereof
and has capital, surplus and undivided profits
aggregating at least $500,000,000 or (iv) repurchase
agreements with respect to securities described in clause
(i) above entered into with an office of a bank or trust
company meeting the criteria specified in clause (iii)
above, provided in each case that such Investment matures
within one year from the date of acquisition thereof by
the Borrower or a Subsidiary.
"Termination Date" means February 15, 2001, or,
if such day is not a Euro-Dollar Business Day, the next
succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month,
in which case the Termination Date shall be the next
preceding Euro-Dollar Business Day.
"Total Capital" means, at any date, the sum of
Consolidated Debt and Consolidated Net Worth, each
determined as of such date.
"Unfunded Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the
value of all benefit liabilities under such Plan,
determined on a plan termination basis using the
assumptions prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds (ii) the fair market value
of all Plan assets allocable to such liabilities under
Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent
valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member
of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.
"United States" means the United States of
America, including the States and the District of
Columbia, but excluding its territories and possessions.
"Wholly-Owned Consolidated Subsidiary" means any
Consolidated Subsidiary all of the shares of capital
stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower.
SECTION 1.2. Accounting Terms and
Determinations. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and
all financial statements required to be delivered
hereunder shall be prepared in accordance with generally
accepted accounting principles as in effect from time to
time, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public
accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks; provided that, if
the Borrower notifies the Agent that the Borrower wishes
to amend any covenant in Article V to eliminate the
effect of any change in generally accepted accounting
principles on the operation of such covenant (or if the
Agent notifies the Borrower that the Required Banks wish
to amend Article V for such purpose), then the Borrower's
compliance with such covenant shall be determined on the
basis of generally accepted accounting principles in
effect immediately before the relevant change in
generally accepted accounting principles became
effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the
Borrower and the Required Banks.
SECTION 1.3. Types of Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or
more Banks to be made to the Borrower pursuant to Article
II on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement
either by reference to the pricing of Loans comprising
such Borrowing (e.g., a "Euro-Dollar Borrowing" is a
Borrowing comprised of Euro-Dollar Loans) or by
reference to the provisions of Article II under which
participation therein is determined (i.e., a "Committed
Borrowing" is a Borrowing under Section 2.01 in which
all Banks participate in proportion to their
Commitments, while a "Money Market Borrowing" is a
Borrowing under Section 2.03 in which the Bank
participants are determined on the basis of their bids in
accordance therewith).
ARTICLE II.
THE CREDITS
SECTION 2.1. Commitments to Lend. During the
Revolving Credit Period each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to
make loans to the Borrower pursuant to this Section from
time to time in amounts requested by the Borrower in
accordance with the terms of this Agreement, provided
that the aggregate principal amount of Committed Loans by
such Bank at any one time outstanding shall not exceed
the amount of its Commitment. Each Borrowing under this
Section shall be in an aggregate principal amount of
$10,000,000 or any larger multiple of $1,000,000 (except
that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.02(b)) and shall
be made from the several Banks ratably in proportion to
their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section,
repay, or to the extent permitted by Section 2.11, prepay
Loans and reborrow at any time during the Revolving
Credit Period under this Section.
SECTION 2.2. Notice of Committed Borrowings.
The Borrower shall give the Agent notice (a "Notice of
Committed Borrowing") not later than 10:00 A.M. (New York
City time) on (x) the date of each Base Rate Borrowing,
(y) the Domestic Business Day next preceding each CD
Borrowing and (z) the third Euro-Dollar Business Day
before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be
a Domestic Business Day in the case of a Domestic
Borrowing or a Euro-Dollar Business Day in the case
of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such
Borrowing are to be CD Loans, Base Rate Loans or
Euro-Dollar Loans,
(d) in the case of a Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto,
subject to the provisions of the definition of
Interest Period, and
(e) whether and to what extent such Borrowing
is a Revco Debt Reduction Borrowing.
SECTION 2.3. Money Market Borrowings.
(a) The Money Market Option. In addition to
Committed Borrowings pursuant to Section 2.01, the
Borrower may, as set forth in this Section, request the
Banks during the Revolving Credit Period to make offers
to make Money Market Loans to the Borrower. The Banks
may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this
Section.
(b) Money Market Quote Request. When the
Borrower wishes to request offers to make Money Market
Loans under this Section, it shall transmit to the Agent
by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit B hereto so
as to be received no later than 10:00 A.M. (New York
City time) on (x) the fifth Euro-Dollar Business Day
prior to the date of Borrowing proposed therein, in the
case of a LIBOR Auction or (y) the Domestic Business Day
next preceding the date of Borrowing proposed therein,
in the case of an Absolute Rate Auction (or, in either
case, such other time or date as the Borrower and the
Agent shall have mutually agreed and shall have notified
to the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective)
specifying:
(i) the proposed date of Borrowing, which
shall be a Euro-Dollar Business Day in the case of a
LIBOR Auction or a Domestic Business Day in the case
of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing,
which shall be $10,000,000 or a larger multiple of
$1,000,000,
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of the
definition of Interest Period, and
(iv) whether the Money Market Quotes requested
are to set forth a Money Market Margin or a Money
Market Absolute Rate.
The Borrower may request offers to make Money Market
Loans for more than one Interest Period in a single Money
Market Quote Request. No Money Market Quote Request
shall be given within five Euro-Dollar Business Days (or
such other number of days as the Borrower and the Agent
may agree) of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes.
Promptly upon receipt of a Money Market Quote Request,
the Agent shall send to the Banks by telex or facsimile
transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit C hereto, which
shall constitute an invitation by the Borrower to each
Bank to submit Money Market Quotes offering to make the
Money Market Loans to which such Money Market Quote
Request relates in accordance with this Section.
(d) Submission and Contents of Money Market
Quotes. (i) Each Bank may submit a Money Market Quote
containing an offer or offers to make Money Market Loans
in response to any Invitation for Money Market Quotes.
Each Money Market Quote must comply with the requirements
of this subsection (d) and must be submitted to the Agent
by telex or facsimile transmission at its offices
referred to in Section 9.01 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business
Day prior to the proposed date of Borrowing, in the case
of a LIBOR Auction or (y) 9:15 A.M. (New York City time)
on the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other
time or date as the Borrower and the Agent shall have
mutually agreed and shall have notified to the Banks not
later than the date of the Money Market Quote Request for
the first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective); provided that
Money Market Quotes submitted by the Agent (or any
affiliate of the Agent) in the capacity of a Bank may be
submitted, and may only be submitted, if the Agent or
such affiliate notifies the Borrower of the terms of the
offer or offers contained therein not later than (x) 1:00
P.M. (New York City time), in the case of a LIBOR Auction
or (y) 9:00 A.M. (New York City time), in the case of an
Absolute Rate Auction. Subject to Articles III and VI,
any Money Market Quote so made shall be irrevocable
except with the written consent of the Agent given on the
instructions of the Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit D hereto and shall in
any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market
Loan for which each such offer is being made, which
principal amount (w) may be greater than or less
than the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y)
may not exceed the principal amount of Money Market
Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the
principal amount of Money Market Loans for which
offers being made by such quoting Bank may be
accepted,
(C) in the case of a LIBOR Auction, the margin
above or below the applicable London Interbank
Offered Rate (the "Money Market Margin") offered for
each such Money Market Loan, expressed as a
percentage (specified to the nearest 1/10,000th of
1%) to be added to or subtracted from such base
rate,
(D) in the case of an Absolute Rate Auction,
the rate of interest per annum (specified to the
nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market
Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate
offers by the quoting Bank with respect to each Interest
Period specified in the related Invitation for Money
Market Quotes.
(iii) Any Money Market Quote shall be disregarded
if it:
(A) is not substantially in conformity with
Exhibit D hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable Invitation for
Money Market Quotes; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Borrower. The Agent shall
promptly notify the Borrower of the terms (x) of any
Money Market Quote submitted by a Bank that is in
accordance with subsection (d) and (y) of any Money
Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted
by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be
disregarded by the Agent unless such subsequent Money
Market Quote is submitted solely to correct a manifest
error in such former Money Market Quote. The Agent's
notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers
have been received for each Interest Period specified in
the related Money Market Quote Request, (B) the
respective principal amounts and Money Market Margins or
Money Market Absolute Rates, as the case may be, so
offered and (C) if applicable, limitations on the
aggregate principal amount of Money Market Loans for
which offers in any single Money Market Quote may be
accepted.
(f) Acceptance and Notice by Borrower. Not
later than 10:00 A.M. (New York City time) on (x) the
third Euro-Dollar Business Day prior to the proposed date
of Borrowing, in the case of a LIBOR Auction or (y) the
proposed date of Borrowing, in the case of an Absolute
Rate Auction (or, in either case, such other time or date
as the Borrower and the Agent shall have mutually agreed
and shall have notified to the Banks not later than the
date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such
change is to be effective), the Borrower shall notify the
Agent of its acceptance or non-acceptance of the offers
so notified to it pursuant to subsection (e). In the
case of acceptance, such notice (a "Notice of Money
Market Borrowing") shall (i) specify the aggregate
principal amount of offers for each Interest Period that
are accepted and (ii) whether and to what extent such
Borrowing is a Revco Debt Reduction Borrowing. The
Borrower may accept any Money Market Quote in whole or in
part; provided that:
(i) the aggregate principal amount of each
Money Market Borrowing may not exceed the applicable
amount set forth in the related Money Market Quote
Request,
(ii) the principal amount of each Money Market
Borrowing must be $10,000,000 or a larger multiple
of $1,000,000,
(iii) acceptance of offers may only be made on
the basis of ascending Money Market Margins or Money
Market Absolute Rates, as the case may be, and
(iv) the Borrower may not accept any offer that
is described in subsection (d)(iii) or that
otherwise fails to comply with the requirements of
this Agreement.
(g) Allocation by Agent. If offers are made by
two or more Banks with the same Money Market Margins or
Money Market Absolute Rates, as the case may be, for a
greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related
Interest Period, the principal amount of Money Market
Loans in respect of which such offers are accepted shall
be allocated by the Agent among such Banks as nearly as
possible (in multiples of $1,000,000, as the Agent may
deem appropriate) in proportion to the aggregate
principal amounts of such offers. Determinations by the
Agent of the amounts of Money Market Loans shall be
conclusive in the absence of manifest error.
SECTION 2.4. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the
Agent shall promptly notify each Bank of the contents
thereof and of such Bank's share (if any) of such
Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (New York City
time) on the date of each Borrowing, each Bank
participating therein shall (except as provided in
subsection (c) of this Section) make available its share
of such Borrowing, in Federal or other funds immediately
available in New York City, to the Agent at its address
referred to in Section 9.01. Unless the Agent determines
that any applicable condition specified in Article III
has not been satisfied, the Agent will make the funds so
received from the Banks available to the Borrower at the
Agent's aforesaid address.
(c) If any Bank makes a new Loan hereunder on a
day on which the Borrower is to repay all or any part of
an outstanding Loan from such Bank, such Bank shall apply
the proceeds of its new Loan to make such repayment and
only an amount equal to the difference (if any) between
the amount being borrowed and the amount being repaid
shall be made available by such Bank to the Agent as
provided in subsection (b), or remitted by the Borrower
to the Agent as provided in Section 2.12, as the case may
be.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's
share of such Borrowing, the Agent may assume that such
Bank has made such share available to the Agent on the
date of such Borrowing in accordance with subsections
(b) and (c) of this Section 2.04 and the Agent may, in
reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to
the extent that such Bank shall not have so made such
share available to the Agent, such Bank and the Borrower
severally agree to repay to the Agent forthwith on demand
such corresponding amount together with interest
thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower,
a rate per annum equal to the higher of the Federal Funds
Rate and the interest rate applicable thereto pursuant to
Section 2.07 and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay to the
Agent such corresponding amount, such amount so repaid
shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
SECTION 2.5. Notes. (a) The Loans of each
Bank shall be evidenced by a single Note payable to the
order of such Bank for the account of its Applicable
Lending Office in an amount equal to the aggregate
unpaid principal amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and
the Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the
aggregate unpaid principal amount of such Loans. Each
such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact
that it evidences solely Loans of the relevant type.
Each reference in this Agreement to the "Note" of such
Bank shall be deemed to refer to and include any or all
of such Notes, as the context may require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.01(b), the Agent shall forward such Note to
such Bank. Each Bank shall record the date, amount,
type and maturity of each Loan made by it and the date
and amount of each payment of principal made by the
Borrower with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of
its Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing
information with respect to each such Loan then
outstanding; provided that the failure of any Bank to
make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under
the Notes. Each Bank is hereby irrevocably authorized by
the Borrower so to endorse its Note and to attach to and
make a part of its Note a continuation of any such
schedule as and when required.
SECTION 2.6. Maturity of Loans. Each Loan
included in any Borrowing shall mature, and the principal
amount thereof shall be due and payable, on the last day
of the Interest Period applicable to such Borrowing.
SECTION 2.7. Interest Rates. (a) Each Base
Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per
annum equal to the Base Rate for such day. Such interest
shall be payable for each Interest Period on the last day
thereof. Any overdue principal of or interest on any
Base Rate Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the
sum of 2% plus the rate otherwise applicable to Base Rate
Loans for such day.
(b) Each CD Loan shall bear interest on the
outstanding principal amount thereof, for each day during
the Interest Period applicable thereto, at a rate per
annum equal to the sum of the CD Margin for such day plus
the applicable Adjusted CD Rate for such Interest Period;
provided that if any CD Loan or any portion thereof
shall, as a result of clause (2)(b) of the definition of
Interest Period, have an Interest Period of less than 30
days, such portion shall bear interest during such
Interest Period at the rate applicable to Base Rate Loans
during such period. Such interest shall be payable for
each Interest Period on the last day thereof and, if such
Interest Period is longer than 90 days, at intervals of
90 days after the first day thereof. Any overdue
principal of or interest on any CD Loan shall bear
interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of 2% plus the higher of
(i) the sum of the CD Margin for such day plus the
Adjusted CD Rate applicable to such Loan and (ii) the
rate applicable to Base Rate Loans for such day.
"CD Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the
following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
_____________
* The amount in brackets being rounded upward, if
necessary, to the next higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest
Period is the rate of interest determined by the Agent to
be the average (rounded upward, if necessary, to the next
higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter
as practicable) on the first day of such Interest Period
by two or more New York certificate of deposit dealers
of recognized standing for the purchase at face value
from each CD Reference Bank of its certificates of
deposit in an amount comparable to the principal amount
of the CD Loan of such CD Reference Bank to which such
Interest Period applies and having a maturity comparable
to such Interest Period.
"Domestic Reserve Percentage" means for any day
that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of
the Federal Reserve System in New York City with deposits
exceeding five billion dollars in respect of new
non-personal time deposits in dollars in New York City
having a maturity comparable to the related Interest
Period and in an amount of $100,000 or more. The
Adjusted CD Rate shall be adjusted automatically on and
as of the effective date of any change in the Domestic
Reserve Percentage.
"Assessment Rate" means for any day the annual
assessment rate in effect on such day which is payable by
a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup
"A" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R.
Section 327.4(a) (or any successor provision) to the Federal
Deposit Insurance Corporation (or any successor) for such
Corporation's (or such successor's) insuring time
deposits at offices of such institution in the United
States. The Adjusted CD Rate shall be adjusted
automatically on and as of the effective date of any
change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on
the outstanding principal amount thereof, for each day
during the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Euro-Dollar Margin for
such day plus the applicable Adjusted London Interbank
Offered Rate for such Interest Period. Such interest
shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day
thereof.
"Euro-Dollar Margin" means a rate per annum
determined in accordance with the Pricing Schedule.
The "Adjusted London Interbank Offered Rate"
applicable to any Interest Period means a rate per annum
equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100 of 1%) by dividing
(i) the applicable London Interbank Offered Rate by (ii)
1.00 minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to
any Interest Period means the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars
are offered to each of the Euro-Dollar Reference Banks in
the London inter- bank market at approximately 11:00 A.M.
(London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount
approximately equal to the principal amount of the
Euro-Dollar Loan of such Euro-Dollar Reference Bank to
which such Interest Period is to apply and for a period
of time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any
day that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve
System in New York City with deposits exceeding five
billion dollars in respect of "Eurocurrency liabilities"
(or in respect of any other category of liabilities which
includes deposits by reference to which the interest rate
on Euro-Dollar Loans is determined or any category of
extensions of credit or other assets which includes loans
by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered
Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve
Percentage.
(d) Any overdue principal of or interest on any
Euro-Dollar Loan shall bear interest, payable on demand,
for each day from and including the date payment thereof
was due to but excluding the date of actual payment, at a
rate per annum equal to the sum of 2% plus the higher of
(i) the sum of the Euro-Dollar Margin for such day plus
the Adjusted London Interbank Offered Rate applicable to
such Loan and (ii) the Euro-Dollar Margin for such day
plus the quotient obtained (rounded upward, if necessary,
to the next higher 1/100 of 1%) by dividing (x) the
average (rounded upward, if necessary, to the next higher
1/16 of 1%) of the respective rates per annum at which
one day (or, if such amount due remains unpaid more than
three Euro-Dollar Business Days, then for such other
period of time not longer than six months as the Agent
may select) deposits in dollars in an amount
approximately equal to such overdue payment due to each
of the Euro-Dollar Reference Banks are offered to such
Euro-Dollar Reference Bank in the London interbank market
for the applicable period determined as provided above by
(y) 1.00 minus the Euro-Dollar Reserve Percentage (or, if
the circumstances described in clause (a) or (b) of
Section 8.01 shall exist, at a rate per annum equal to
the sum of 2% plus the rate applicable to Base Rate Loans
for such day).
(e) Subject to Section 8.01(a), each Money
Market LIBOR Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum
of the London Interbank Offered Rate for such Interest
Period (determined in accordance with Section 2.07(c) as
if the related Money Market LIBOR Borrowing were a
Committed Euro-Dollar Borrowing) plus (or minus) the
Money Market Margin quoted by the Bank making such Loan
in accordance with Section 2.03. Each Money Market
Absolute Rate Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the
Money Market Absolute Rate quoted by the Bank making such
Loan in accordance with Section 2.03. Such interest
shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day
thereof. Any overdue principal of or interest on any
Money Market Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the
sum of 2% plus the Base Rate for such day.
(f) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give
prompt notice to the Borrower and the participating Banks
of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence
of manifest error.
(g) Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as
contemplated by this Section. If any Reference Bank does
not furnish a timely quotation, the Agent shall determine
the relevant interest rate on the basis of the quotation
or quotations furnished by the remaining Reference Bank
or Banks or, if none of such quotations is available on a
timely basis, the provisions of Section 8.01 shall apply.
SECTION 2.8. Fees.
(a) Participation Fee. The Borrower shall pay to
the Agent for the account of each Bank a participation fee
(the "Participation Fee") in an amount equal to the product
of (i) the amount of such Bank's Commitment times (ii) the
Participation Fee Rate applicable to the amount such Bank
initially offered to commit in connection with the facility
(the "Initial Commitment"). The Borrower shall pay an
amount equal to 1/2 of each Bank's Participation Fee on the
date hereof, and the remainder on the Effective Date.
For this purpose, the "Participation Fee Rate" is
equal to:
Initial Commitment Participation Fee Rate
$200,000,000 .0625 %
$150,000,000 .0550 %
$100,000,000 .0400 %
$50,000,000 .0300 %
(b) Facility Fee. The Borrower shall pay to the
Agent for the account of the Banks ratably a facility fee at
the Facility Fee Rate (determined daily in accordance with
the Pricing Schedule). Such facility fee shall accrue (i)
from and including the earlier of the Effective Date and
April 15, 1996 to but excluding the Termination Date (or
earlier date of termination of the Commitments in their
entirety), on the daily aggregate amount of the Commitments
(whether used or unused) and (ii) from and including the
Termination Date to but excluding the date the Loans shall
be repaid in their entirety, on the daily average aggregate
outstanding principal amount of the Loans. Accrued fees
under this Section 2.08(b) shall be payable quarterly on the
last day of each January, April, July and October and upon
the date of termination of the Commitments in their entirety
(and, if later, the date the Loans shall be repaid in their
entirety).
SECTION 2.9. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least three Domestic
Business Days' notice to the Agent, (i) terminate the
Commitments at any time, if no Loans are outstanding at such
time or (ii) ratably reduce from time to time by an
aggregate amount of $25,000,000 or any larger multiple
thereof, the aggregate amount of the Commitments in excess
of the aggregate outstanding principal amount of the Loans.
Upon receipt of any such notice, the Agent shall promptly
notify the Banks.
SECTION 2.10. Mandatory Termination and Reduction
of Commitments. (a) The Commitments shall terminate on the
Termination Date and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on
such date.
(b) To the extent not theretofore reduced to the
same or a lesser amount pursuant to Section 2.09 or 2.10(c),
the Commitments shall be ratably reduced automatically on
the date which is the second anniversary of the closing date
of the Offer (or if such date is not a Euro-Dollar Business
Day, the next preceding Euro-Dollar Business Day) (the
"Commitment Reduction Date") to $1,500,000,000.
(c) In addition, the Commitments shall be ratably
reduced automatically in the event that the Borrower or any
of its Subsidiaries shall at any time, or from time to time,
after the date hereof receive any Net Cash Proceeds of any
Reduction Event, by an amount equal to such Net Cash
Proceeds; provided that any such reduction made pursuant to
this subsection (c) shall not exceed such amount (if any) as
shall be necessary so that the aggregate amount of the
Commitments, as so reduced, is $1,500,000,000. The
reductions in the Commitments required by this subsection
shall be effective on the thirtieth day following receipt by
the Borrower or any of its Subsidiaries, as the case may be,
of such Net Cash Proceeds; provided that
(i) if the amount of the Net Cash Proceeds in
respect of any Reduction Event is less than $1,000,000,
such reduction shall be effective upon receipt of
proceeds such that, together with all other such
amounts not previously applied, the amount of such Net
Cash Proceeds is equal to at least $1,000,000; and
(ii) if any such reduction in the Commitments
would otherwise require prepayment of Fixed Rate Loans
or portions thereof prior to the last day of the then
current Interest Period pursuant to Section 2.10(d),
such reduction shall, unless the Agent otherwise
notifies the Borrower upon the instructions of the
Required Banks, be deferred to such last day of the
related Interest Period.
(d) On the date of any reduction of Commitments
pursuant to this Section, the Borrower shall repay such
principal amount (together with accrued interest thereon)
of, first, each Bank's outstanding Base Rate Loans, if any,
second, each Bank's outstanding CD Loans and Euro-Dollar
Loans, if any, and third, each Bank's outstanding Money
Market Loans, as may be necessary so that after such
repayment (i) the aggregate outstanding principal amount of
such Bank's Committed Loans does not exceed the amount of
such Bank's Commitment as then reduced and (ii) the
aggregate unpaid principal amount of all outstanding Loans
does not exceed the aggregate amount of the Commitments as
then reduced. Within the foregoing limits of this
subsection (d), each required payment or prepayment shall be
made with respect to such outstanding Borrowings as the
Borrower may designate to the Agent not less than five Euro-
Dollar Business Days prior to the date required for such
payment or prepayment or, failing such designation by the
Borrower, as the Agent may specify by notice to the Borrower
and the Banks.
SECTION 2.11. Optional Prepayments. (a) The
Borrower may (i) upon at least three Domestic Business Days'
notice to the Agent, prepay any Domestic Borrowing (or any
Money Market Borrowing bearing interest at the Base Rate
pursuant to Section 8.01(a)) or (ii) upon at least three
Euro-Business Days' notice to the Agent, prepay any
Euro-Dollar Borrowing, in whole at any time, or from time to
time in part in amounts aggregating $10,000,000 or any
larger multiple of $1,000,000, by paying the principal
amount to be prepaid together with accrued interest thereon
to the date of prepayment. Each such optional prepayment
shall be applied to prepay ratably the Loans of the several
Banks included in such Borrowing.
(b) Except as provided in Section 2.10(d) and in
clause (i) of Section 2.11(a), the Borrower may not prepay
all or any portion of the principal amount of any Money
Market Loan prior to the maturity thereof without the
consent of the applicable Bank.
(c) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable
share (if any) of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.12. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of,
and interest on, the Loans and of fees hereunder, not later
than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York
City, to the Agent at its address referred to in Section
9.01. The Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Agent for
the account of the Banks. Whenever any payment of principal
of, or interest on, the Domestic Loans or of fees shall be
due on a day which is not a Domestic Business Day, the date
for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal
of, or interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar
Business Day. Whenever any payment of principal of, or
interest on, the Money Market Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is
due to the Banks hereunder that the Borrower will not make
such payment in full, the Agent may assume that the Borrower
has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to
the amount then due such Bank. If and to the extent that the
Borrower shall not have so made such payment, each Bank
shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for
each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the
Agent, at the Federal Funds Rate.
SECTION 2.13. Funding Losses. If the Borrower
makes any payment of principal with respect to any Fixed
Rate Loan (pursuant to Article II, VI or VIII or otherwise)
on any day other than the last day of the Interest Period
applicable thereto, or the end of an applicable period fixed
pursuant to Section 2.07(d), or if the Borrower fails to
borrow or prepay any Fixed Rate Loans after notice has been
given to any Bank in accordance with Section 2.04(a) or
2.11(c), the Borrower shall reimburse each Bank within 15
days after demand for any resulting loss or expense incurred
by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the
period after any such payment or failure to borrow or
prepay, provided that such Bank shall have delivered to the
Borrower a certificate as to the amount of such loss or
expense, which certificate shall be conclusive in the
absence of clearly demonstrable error.
SECTION 2.14. Computation of Interest and Fees.
Interest based on the Prime Rate hereunder shall be computed
on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All
other interest and fees shall be computed on the basis of a
year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last
day).
ARTICLE III.
CONDITIONS
SECTION 3.1. Effectiveness. This Agreement shall
become effective on the date that each of the following
conditions shall have been satisfied (or waived in
accordance with Section 9.05):
(a) receipt by the Agent of counterparts
hereof signed by each of the parties hereto (or,
in the case of any party as to which an executed
counterpart shall not have been received, receipt
by the Agent in form satisfactory to it of
telegraphic, telex or other written confirmation
from such party of execution of a counterpart
hereof by such party);
(b) receipt by the Agent for the account of
each Bank of a duly executed Note dated on or
before the Effective Date complying with the
provisions of Section 2.05;
(c) receipt by the Agent of opinions of (i)
Skadden, Arps, Slate, Meagher & Flom, special
counsel for the Borrower, and (ii) Elliot S.
Gerson, Senior Vice President and Assistant Chief
Legal Counsel of the Borrower, substantially in
the respective forms of Exhibits E-1 and E-2
hereto;
(d) receipt by the Agent of an opinion of
Davis Polk & Wardwell, special counsel for the
Agent, substantially in the form of Exhibit F
hereto and covering such additional matters
relating to the transactions contemplated hereby
as the Required Banks may reasonably request;
(e) receipt by the Agent of a certificate
from the President or Chief Executive Officer of
the Borrower that the Offer has been consummated
in accordance with the Offer to Purchase and the
Merger Agreement, without waiver of any of the
conditions thereof;
(f) the Agent shall not have received notice from
the Required Banks that, in their reasonable
determination, any of the conditions of the Offer has
not been fulfilled;
(g) receipt by the Agent of all documents it
may reasonably request relating to the existence
of the Borrower, the corporate authority for and
the validity of this Agreement and the Notes, and
any other matters relevant hereto, all in form and
substance satisfactory to the Agent;
(h) the fact that all fees and expenses payable
on or before the Effective Date by the Borrower for the
account of the Banks and their affiliates in connection
with this Agreement have been paid in full on or before
such date in the amounts previously agreed upon in
writing; and
(i) receipt by the Agent of evidence
satisfactory to it of the payment of all principal
of and interest on any loans outstanding under,
and of all other amounts payable under, the 1994
Credit Agreements;
provided that this Agreement (other than the obligations of
the Borrower under Sections 2.08, 2.09 and 9.03, which shall
be effective upon execution of this Agreement by the parties
hereto) shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are
satisfied not later than June 1, 1996. The Agent shall
promptly notify the Borrower and the Banks of the Effective
Date, and such notice shall be conclusive and binding on all
parties hereto. The Banks that are parties to the 1994
Credit Agreements, comprising the "Required Banks" as
defined therein, and the Borrower agree that the commitments
under the 1994 Credit Agreements shall terminate in their
entirety simultaneously with and subject to the
effectiveness of this Agreement and that the Borrower shall
be obligated to pay the accrued commitment and facility fees
thereunder to but excluding the date of such effectiveness.
SECTION 3.2. Borrowings. The obligation of any
Bank to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of
Borrowing as required by Section 2.02 or 2.03, as
the case may be;
(b) the fact that, immediately after such
Borrowing, the aggregate outstanding principal
amount of the Loans will not exceed (i) the
aggregate amount of the Commitments less (ii) the
Revco Debt Reduction Reserve;
(c) the fact that, immediately after such
Borrowing, no Default shall have occurred and be
continuing; and
(d) the fact that the representations and
warranties of the Borrower contained in this
Agreement (except, in the case of a Refunding
Borrowing, the representations and warranties set
forth in Sections 4.04(c) and 4.06 as to any
matter which has theretofore been disclosed in
writing by the Borrower to the Banks) shall be
true in all material respects on and as of the
date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of
such Borrowing as to the facts specified in clauses (b), (c)
and (d) of this Section.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.1. Corporate Existence and Power. The
Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware, and has all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
SECTION 4.2. Corporate and Governmental
Authorization; No Contravention. The execution, delivery
and performance by the Borrower of this Agreement and the
Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene,
or constitute a default under, any provision of applicable
law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement or instrument
evidencing or governing Debt of the Borrower or any
Subsidiary or any other material agreement, instrument,
judgment, injunction, order or decree binding upon the
Borrower or any Subsidiary or result in the creation or
imposition of any Lien on any asset of the Borrower or any
Subsidiary pursuant to any such agreement, instrument,
judgment, injunction, order or decree.
SECTION 4.3. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Borrower
and the Notes, when executed and delivered in accordance
with this Agreement, will constitute valid and binding
obligations of the Borrower, in each case enforceable in
accordance with its terms.
SECTION 4.4. Financial Information.
(a) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of March 4,
1995 and the related consolidated statements of income and
cash flows for the fiscal year then ended, reported on by
KPMG Peat Marwick and set forth in the Borrower's 1995 Form
10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted
accounting principles, the consolidated financial position
of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash
flows for such fiscal year.
(b) The unaudited consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of
September 2, 1995 and the related unaudited consolidated
statements of income and cash flows for the six months then
ended, set forth in the Borrower's quarterly report for the
fiscal quarter ended September 2, 1995 as filed with the
Securities and Exchange Commission on Form 10-Q, a copy of
which has been delivered to each of the Banks, fairly
present, in conformity with generally accepted accounting
principles applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section,
the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such
six-month period (subject to normal year-end adjustments).
(c) Since September 2, 1995, there has been no
material adverse change in the business, financial position,
results of operations or prospects of the Borrower and its
Consolidated Subsidiaries, considered as a whole.
SECTION 4.5. Full Disclosure. All financial
statements and other documents furnished by the Borrower to
the Banks in connection with this Agreement do not and will
not contain any untrue statement of material fact or omit to
state a material fact necessary in order to make the
statements contained therein not misleading. The Borrower
has disclosed to the Banks in writing any and all facts
which materially and adversely affect the business,
operations or condition, financial or otherwise, of the
Borrower and its Subsidiaries or the Borrower's ability to
perform its obligations under this Agreement.
SECTION 4.6. Litigation. There is no action,
suit or proceeding pending against, or to the knowledge of
the Borrower threatened against or affecting, the Borrower
or any of its Subsidiaries before any court or arbitrator or
any governmental body, agency or official in which there is
a reasonable possibility of an adverse decision which could
materially adversely affect the business, consolidated
financial position or consolidated results of operations of
the Borrower and its Consolidated Subsidiaries or which in
any manner draws into question the validity of this
Agreement or the Notes.
SECTION 4.7. Compliance with ERISA. Each member
of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions
of ERISA and the Internal Revenue Code with respect to each
Plan. No member of the ERISA Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement,
or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security under ERISA
or the Internal Revenue Code or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC
for premiums under Section 4007 of ERISA.
SECTION 4.8. Taxes. United States Federal income
tax returns of the Borrower and its Subsidiaries have been
examined and closed through the fiscal year ended March 2,
1991. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns, and the Borrower
and its Significant Subsidiaries have filed all other
material tax returns, which are required to be filed by them
and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Borrower or any
Significant Subsidiary except where the payment of any such
taxes is being contested in good faith by appropriate
proceedings. The charges, accruals and reserves on the
books of the Borrower and its Consolidated Subsidiaries in
respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
SECTION 4.9. Subsidiaries. Each of the
Borrower's corporate Significant Subsidiaries is a
corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
SECTION 4.10. Environmental Matters. In the
ordinary course of its business, the Borrower conducts an
ongoing review of the effect of Environmental Laws on the
business, operations and properties of the Borrower and its
Subsidiaries, in the course of which it identifies and
evaluates associated liabilities and costs (including,
without limitation, any capital or operating expenditures
required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures
required to achieve or maintain compliance with
environmental protection standards imposed by law or as a
condition of any license, permit or contract, any related
constraints on operating activities, including any periodic
or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted
thereat, any costs or liabilities in connection with
off-site disposal of wastes or hazardous substances, and any
actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis
of this review, the Borrower has reasonably concluded that
such associated liabilities and costs, including the costs
of compliance with Environmental Laws, are unlikely to have
a material adverse effect on the business, financial
condition, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a
whole.
SECTION 4.11. Merger Agreement. The
representations and warranties of each of the Borrower and
Revco contained in the Merger Agreement are, and shall be,
true in all material respects on the date hereof and on the
date of the initial Borrowing hereunder.
ARTICLE V.
COVENANTS
The Borrower agrees that, so long as any Bank has
any Commitment hereunder or any amount payable under any
Note remains unpaid:
SECTION 5.1. Information. The Borrower will
deliver to each of the Banks:
(a) as soon as available and in any event
within 90 days after the end of each fiscal year
of the Borrower, a consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as
of the end of such fiscal year and the related
consolidated statements of income and cash flows
for such fiscal year, setting forth in each case
in comparative form the figures for the previous
fiscal year, all reported on in a manner
acceptable to the Securities and Exchange
Commission by KPMG Peat Marwick or other
independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event
within 45 days after the end of each of the first
three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of
the end of such quarter and the related
consolidated statements of income and cash flows
for such quarter and for the portion of the
Borrower's fiscal year ended at the end of such
quarter, setting forth in each case in comparative
form the figures for the corresponding quarter and
the corresponding portion of the Borrower's
previous fiscal year, all certified (subject to
normal year-end adjustments) as to fairness of
presentation, generally accepted accounting
principles and consistency by the chief financial
officer or the chief accounting officer of the
Borrower;
(c) simultaneously with the delivery of each
set of financial statements referred to in clauses
(a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer
of the Borrower (i) setting forth in reasonable
detail the calculations required to establish
whether the Borrower was in compliance with the
requirements of Sections 5.07 to 5.13, inclusive,
on the date of such financial statements and (ii)
stating whether any Default exists on the date of
such certificate and, if any Default then exists,
setting forth the details thereof and the action
which the Borrower is taking or proposes to take
with respect thereto;
(d) simultaneously with the delivery of each
set of financial statements referred to in clause
(a) above, a statement of the firm of independent
public accountants which reported on such
statements (i) whether anything has come to their
attention to cause them to believe that any
Default existed on the date of such statements and
(ii) confirming the calculations set forth in the
officer's certificate delivered simultaneously
therewith pursuant to clause (c) above;
(e) within five days after any officer of
the Borrower obtains knowledge of any Default, if
such Default is then continuing, a certificate of
the chief financial officer or the chief
accounting officer of the Borrower setting forth
the details thereof and the action which the
Borrower is taking or proposes to take with
respect thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of
all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies
of all registration statements (other than the
exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents)
which the Borrower shall have filed with the
Securities and Exchange Commission;
(h) if and when any member of the ERISA
Group (i) gives or is required to give notice to
the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan
which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given
or is required to give notice of any such
reportable event, a copy of the notice of such
reportable event given or required to be given to
the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of
ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than
for premiums under Section 4007 of ERISA) in
respect of, or appoint a trustee to administer,
any Plan, a copy of such notice; (iv) applies for
a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy
of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA,
a copy of such notice and other information filed
with the PBGC; (vi) gives notice of withdrawal
from any Plan pursuant to Section 4063 of ERISA, a
copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or
Benefit Arrangement which has resulted or could
result in the imposition of a Lien or the posting
of a bond or other security, a certificate of the
chief financial officer or the chief accounting
officer of the Borrower setting forth details as
to such occurrence and action, if any, which the
Borrower or applicable member of the ERISA Group
is required or proposes to take; and
(i) from time to time such additional
information regarding the financial position or
business of the Borrower and its Subsidiaries as
the Agent, at the request of any Bank, may
reasonably request.
SECTION 5.2. Payment of Obligations. The
Borrower will, and will cause each of its Subsidiaries to,
pay and discharge, as the same shall become due and payable,
(i) all material claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like
Persons prior to the time such claims or demands give rise
to a Lien upon any of its property or assets, and (ii) all
material taxes, assessments and governmental charges or
levies upon it or its property or assets, except where any
of the items in clause (i) or (ii) above may be contested in
good faith by appropriate proceedings, and the Borrower or
such Subsidiary, as the case may be, shall have set aside on
its books, in accordance with generally accepted accounting
principles, appropriate reserves, if any, for the accrual of
any such items.
SECTION 5.3. Maintenance of Property; Insurance.
(a) The Borrower will keep, and will cause each Subsidiary
to keep, all property useful and necessary in its business
in good working order and condition, ordinary wear and tear
excepted.
(b) The Borrower will, and will cause each of its
Subsidiaries to, maintain (either in the name of the
Borrower or in such Subsidiary's own name) with financially
sound and responsible insurance companies, insurance on all
their respective properties in at least such amounts and
against at least such risks (and with such risk retention)
as are usually insured against in the same general area by
companies of established repute engaged in the same or a
similar business; and will furnish to the Banks, upon
request from the Agent, information presented in reasonable
detail as to the insurance so carried.
SECTION 5.4. Conduct of Business and Maintenance
of Existence. Except as otherwise permitted in this
Agreement, the Borrower will continue, and will cause each
Significant Subsidiary to continue, to engage in business of
the same general type as now conducted by the Borrower and
its Significant Subsidiaries, and will preserve, renew and
keep in full force and effect, and will cause each
Significant Subsidiary (except where such Significant
Subsidiary merges into the Borrower or any other Subsidiary)
to preserve, renew and keep in full force and effect their
respective legal existences and their respective rights,
privileges and franchises necessary or desirable in the
normal conduct of business.
SECTION 5.5. Compliance with Laws. The Borrower
will comply, and cause each Subsidiary to comply, in all
material respects with all applicable laws, ordinances,
rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental
Laws and ERISA and the rules and regulations thereunder)
except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings or where
the failure to comply would not have a material adverse
effect on the business, financial position or results of
operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole.
SECTION 5.6. Inspection of Property, Books and
Records. The Borrower will keep, and will cause each
Subsidiary to keep, proper books of record and account in
which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and
activities; and will permit, and will cause each Subsidiary
to permit, representatives of any Bank at such Bank's
expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective
affairs, finances and accounts with their respective
officers, employees and independent public accountants, all
at such reasonable times and as often as may reasonably be
desired.
SECTION 5.7. Restriction on Debt of Subsidiaries.
The Borrower will not permit any Subsidiary to create,
issue, incur, assume, or in any other way become liable for
any unsecured Debt unless immediately prior thereto the
Borrower would be entitled under subsection (d) of Section
5.09 to create Secured Debt not specifically permitted under
Section 5.09 but for subsection (d) thereof in an amount
equal to such Debt; provided that the foregoing restriction
shall not (i) prevent (A) any Subsidiary from becoming
liable to the Borrower or to a Wholly-Owned Consolidated
Subsidiary for Debt or (B) the extension, renewal or
refunding of any Debt of any Subsidiary (other than the
Existing Revco Debt) so long as Consolidated Debt is not
thereby increased and (ii) apply to the Existing Revco Debt.
SECTION 5.8. Restriction on Sales with Leases
Back. Except for a sale or transfer by a Subsidiary to the
Borrower or a Wholly-Owned Consolidated Subsidiary, the
Borrower will not, and will not permit any Subsidiary to,
sell or transfer any manufacturing plant, warehouse, retail
store or equipment now or hereafter owned and operated by
the Borrower or a Subsidiary, with the intention that the
Borrower or any Subsidiary take back a lease thereof, except
a lease for a period, including renewals, not exceeding 24
months, by the end of which period it is intended that the
use of such property or equipment by the lessee will be
discontinued (any such transaction being herein referred to
as a "Sale and Leaseback Transaction"); provided that,
notwithstanding the foregoing, the Borrower or any
Subsidiary may enter into a Sale and Leaseback Transaction
if the Borrower or a Subsidiary would be entitled under
subsection (d) of Section 5.09 to create Secured Debt not
specifically permitted under Section 5.09 but for subsection
(d) thereof in an amount equal to the Attributable Debt
respecting such Sale and Leaseback Transaction; provided
further that, notwithstanding the foregoing, the Borrower or
any Subsidiary may enter into a Sale and Leaseback
Transaction if entered into in respect of property acquired
by the Borrower or a Subsidiary if such Sale and Leaseback
Transaction is entered into within 24 months from the date
of such acquisition; and provided still further that,
notwithstanding the foregoing, the Borrower or any
Subsidiary may enter into a Sale and Leaseback Transaction
if the Borrower, within 120 days before or after the sale or
transfer shall have been made by the Borrower or by any
Subsidiary, applied or applies an amount equal to the
greater of (i) the net proceeds of the sale of the property
sold and leased back pursuant to such arrangement or (ii)
the fair market value of the property so sold and leased
back at the time of entering into such arrangement (as
determined by any two of the following: the Chairman of the
Board of the Borrower, its Chief Executive Officer, its
President, any Vice President of the Borrower, its Treasurer
and its Controller) to (i) the retirement of Secured Debt of
the Borrower other than at maturity or pursuant to any
mandatory sinking fund payment or any mandatory prepayment
provision or (ii) reduction of the Commitments.
SECTION 5.9. Restriction on Liens. The Borrower
will not, and will not permit any Subsidiary to, create,
issue, incur, assume or guarantee any Secured Debt without
making effective provision (and the Borrower covenants that
in such case it will make or cause to be made effective
provision) whereby the Loans (and any other Debt of the
Borrower or such Subsidiary then entitled thereto) shall be
secured by the same Lien equally and ratably with (or prior
to) any and all other obligations and Debt thereby secured
for so long as any such other obligations and Debt shall be
so secured; provided that the foregoing covenant shall not
apply to the following:
(a)(i) Any Lien on any property acquired or
constructed by the Borrower or a Subsidiary and
created contemporaneously with, or within 24
months after, such acquisition or the completion
of such construction and commencement of full
operation of such property, whichever is later, to
secure or provide for the payment of any part of
the purchase or construction price of such
property, or (ii) the acquisition by the Borrower
or a Subsidiary of property subject to any Lien
upon such property existing at the time of
acquisition thereof, whether or not assumed by the
Borrower or such Subsidiary, or (iii) any
conditional sales agreement or other title
retention agreement with respect to any property
hereafter acquired; provided that the Lien does
not spread to other property except unimproved
real property previously owned upon which any new
construction has taken place and subsequent
additions to such acquired or constructed
property;
(b) Any Lien created for the sole purpose of
extending, renewing or refunding, in whole or
part, any Lien permitted by this Section 5.09 or
any Lien securing the Debt of the Borrower or of
any Subsidiary on the date of this Agreement or of
a corporation at the time such corporation becomes
a Subsidiary, or any extensions, renewals or
refundings of any such Lien; provided that the
principal amount of Debt secured thereby shall not
exceed the principal amount of Debt so secured at
the time of such extension, renewal or refunding
and that such extension, renewal or refunding Lien
shall be limited to all or that part of the same
property which secured the Debt so extended,
renewed or refunded;
(c) Any Secured Debt of a Subsidiary owing
to the Borrower or a Wholly-Owned Consolidated
Subsidiary;
(d) Secured Debt of the Borrower and its
Subsidiaries which would otherwise be prohibited
by the foregoing restrictions (not including
Secured Debt permitted to be secured under
subsections (a) through (c) above) so long as the
sum of any such Secured Debt hereafter incurred
and outstanding at the time plus Attributable Debt
of the Borrower and any Subsidiaries in respect of
Sale and Leaseback Transactions hereafter entered
into and outstanding at the time (excluding
Attributable Debt incurred in respect of any Sale
and Leaseback Transaction (i) entered into in
respect of property acquired by the Borrower or a
Subsidiary not more than 24 months prior to the
date such Sale and Leaseback Transaction is
entered into or (ii) if the Borrower, within 120
days before or after such Sale and Leaseback
Transaction is entered into applies an amount
equal to the greater of (A) the net proceeds of
the sale of the property so sold and leased back
or (B) the fair market value of such property at
the date such arrangement is entered into to the
retirement of Secured Debt (other than at maturity
or pursuant to any mandatory payment provision) or
to reduction of the Commitments) plus unsecured
Debt of any Subsidiary hereafter incurred and
outstanding at the time (excluding unsecured Debt
incurred through the extension, renewal or
refunding of Debt of such Subsidiary where
Consolidated Debt was not thereby increased and
excluding any Debt owed to the Borrower or a
Wholly-Owned Consolidated Subsidiary) does not at
the time exceed 5% of Consolidated Net Tangible
Assets; and
(e) any Lien on any Margin Stock, if and to the
extent the value of all Margin Stock of the Borrower
and its Subsidiaries exceeds 25% of the value of the
total assets subject to this Section.
SECTION 5.10. Leverage Ratio. Consolidated Debt
will not, at any time during any of the periods set forth
below, exceed the percentage of Total Capital indicated
opposite such period:
Period Percentage
Effective Date to but not
including FYE February 1997 64%
FYE February 1997 to but not
including FYE February 1998 61%
FYE February 1998 to but not
including FYE February 1999 58%
FYE February 1999 and thereafter 50%
For the period from the Effective Date to the
earlier of (i) the date of consummation of the Merger and
(ii) one year from the date hereof, Total Capital shall be
calculated as though the common stock of the Borrower (the
"Common Stock") to be issued pursuant to the Merger
Agreement has been issued; provided that if the shareholders
of the Borrower do not approve the issuance of the Common
Stock pursuant to the Merger Agreement at the Parent Special
Meeting (as defined in the Offer to Purchase), such
calculation shall assume that shares representing 19.9% of
the outstanding Common Stock (as determined pursuant to the
Merger Agreement) have been issued pursuant to the Merger
Agreement.
SECTION 5.11. Fixed Charge Coverage. The Fixed
Charge Coverage Ratio will not, for any period of four
consecutive fiscal quarters ending during any period set
forth below, be less than the percentage indicated opposite
such latter period:
Four Consecutive
Fiscal Quarters Ending
On or Between Percentage
FYE February 1996 and FQE November 1997 165%
FYE February 1998 and FQE November 1998 175%
FYE February 1999 and FQE November 2000 185%
SECTION 5.12. Limitation on Debt. Consolidated
Debt will not exceed $3,000,000,000 at any time prior to
February 15, 1997.
SECTION 5.13. Limitation on Minority Investments.
Neither the Borrower nor any Consolidated Subsidiary will
make or acquire any Investment in any Person other than:
(a) Investments in Consolidated
Subsidiaries;
(b) Temporary Cash Investments; and
(c) any Investment not otherwise permitted
by the foregoing clauses of this Section if,
immediately after such Investment is made or
acquired, the aggregate net book value of all
Investments permitted by this clause (c) does not
exceed 15% of Consolidated Net Worth.
SECTION 5.14. Consolidations, Mergers and Sales
of Assets. The Borrower will not (i) consolidate or merge
with or into any other Person or (ii) sell, lease or
otherwise transfer, directly or indirectly, all or any
substantial part of the assets of the Borrower and its
Subsidiaries, taken as a whole, to any other Person;
provided that the Borrower may (A) merge with another Person
if (1) the Borrower is the corporation surviving such merger
and (2) immediately after giving effect to such merger, no
Default shall have occurred and be continuing and (B) sell
Margin Stock for fair value.
SECTION 5.15. Use of Proceeds. The proceeds of
the Loans made under this Agreement will be used by the
Borrower (i) to finance the Offer and the consummation of
the transactions contemplated thereby, (ii) to refinance
certain bank indebtedness, (iii) to refinance the Existing
Revco Debt, (iv) to refinance the Borrower's 6-3/4% zero
coupon subordinated convertible notes due July 24, 2006 and
(v) for general corporate purposes. No such use of the
proceeds for general corporate purposes will be, directly or
indirectly, for the purpose, whether immediate, incidental
or ultimate, of buying or carrying any "margin stock" within
the meaning of Regulation U.
SECTION 5.16. Existing Revco Debt Retirement.
The Borrower will cause (a) the Existing Revco Debt
described in clause (i) of the definition thereof to be
retired in whole and (b) at least a majority of the Existing
Revco Debt described in clauses (ii) and (iii) of the
definition thereof to be retired, each within 30 days after
the consummation of the Merger in accordance with the Merger
Agreement.
SECTION 5.17. Merger. The Borrower will use its
best efforts to cause the Merger to be consummated in
accordance with the Merger Agreement at the earliest
practicable time.
ARTICLE VI.
DEFAULTS
SECTION 6.1. Events of Default. If one or more
of the following events ("Events of Default") shall have
occurred and be continuing:
(a) the Borrower shall fail to pay when due
any principal of any Loan, or shall fail to pay
within five days of the due date thereof any
interest, fees or other amount payable hereunder;
(b) the Borrower shall fail to observe or
perform any covenant contained in Sections 5.07 to
5.16, inclusive;
(c) the Borrower shall fail to observe or
perform any covenant or agreement contained in
this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after written notice
thereof has been given to the Borrower by the
Agent at the request of any Bank;
(d) any material representation, warranty,
certification or statement made (or deemed made)
by the Borrower in this Agreement or in any
certificate, financial statement or other document
delivered pursuant to this Agreement shall prove
to have been incorrect in any material respect
when made (or deemed made);
(e) the Borrower or any Subsidiary shall
fail to make any payment in respect of any
Material Debt when due or within any applicable
grace period;
(f) any event or condition shall occur which
results in the acceleration of the maturity of any
Material Debt or enables (or, if such event or
condition does not otherwise give rise to a
Default hereunder, which with the giving of notice
or lapse of time or both would enable) the holder
of such Debt or any Person acting on such holder's
behalf to accelerate the maturity thereof;
provided that rights of holders of Existing Revco
Debt to accelerate the maturity thereof solely by
reason of the change of control of Revco pursuant
to the Offer and the Merger shall not give rise to
a Default under this clause (f), whether or not
such rights are exercised;
(g) the Borrower or any Significant
Subsidiary shall commence a voluntary case or
other proceeding seeking liquidation,
reorganization or other relief with respect to
itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar
official of it or any substantial part of its
property, or shall consent to any such relief or
to the appointment of or taking possession by any
such official in an involuntary case or other
proceeding commenced against it, or shall make a
general assignment for the benefit of creditors,
or shall fail generally to pay its debts as they
become due, or shall take any corporate action to
authorize any of the foregoing;
(h) an involuntary case or other proceeding
shall be commenced against the Borrower or any
Significant Subsidiary seeking liquidation,
reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of
it or any substantial part of its property, and
such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered
against the Borrower or any Significant Subsidiary
under the federal bankruptcy laws as now or
hereafter in effect;
(i) any member of the ERISA Group shall fail
to pay when due an amount or amounts aggregating
in excess of $5,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice
of intent to terminate a Material Plan shall be
filed under Title IV of ERISA by any member of the
ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect
of, or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5)
of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more
members of the ERISA Group to incur a current
payment obligation in excess of $25,000,000;
(j) a judgment or order for the payment of
money in excess of $25,000,000 shall be rendered
against the Borrower or any Subsidiary and such
judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(k) any person or group of persons (within
the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the Securities and
Exchange Commission under said Act) of 20% or more
of the outstanding shares of common stock of the
Borrower; or, during any period of 12 consecutive
calendar months, individuals who were directors of
the Borrower on the first day of such period shall
cease to constitute a majority of the board of
directors of the Borrower;
then, and in every such event, the Agent shall (i) if
requested by the Required Banks, by notice to the Borrower
terminate the Commitments and they shall thereupon
terminate, and (ii) if requested by Banks holding Notes
evidencing more than 66 2/3% in aggregate principal amount
of the Loans, by notice to the Borrower declare the Notes
(together with accrued interest thereon) to be, and the
Notes (together with accrued interest thereon) shall
thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; provided
that in the case of any of the Events of Default specified
in clause (g) or (h) above with respect to the Borrower,
without any notice to the Borrower or any other act by the
Agent or the Banks, the Commitments shall thereupon
terminate and the Notes (together with accrued interest
thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
SECTION 6.2. Notice of Default. The Agent shall
give notice to the Borrower under Section 6.01(c) promptly
upon being requested to do so by any Bank and shall
thereupon notify all the Banks thereof.
ARTICLE VII.
THE AGENT
SECTION 7.1. Appointment and Authorization. Each
Bank irrevocably appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such
powers under this Agreement and the Notes as are delegated
to the Agent by the terms hereof or thereof, together with
all such powers as are reasonably incidental thereto.
SECTION 7.2. Agent and Affiliates. Morgan
Guaranty Trust Company of New York shall have the same
rights and powers under this Agreement as any other Bank and
may exercise or refrain from exercising the same as though
it were not the Agent, and Morgan Guaranty Trust Company of
New York and its affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with
the Borrower or any Subsidiary or affiliate of the Borrower
as if it were not the Agent hereunder.
SECTION 7.3. Action by Agent. The obligations of
the Agent hereunder are only those expressly set forth
herein. Without limiting the generality of the foregoing,
the Agent shall not be required to take any action with
respect to any Default, except as expressly provided in
Article VI.
SECTION 7.4. Consultation with Experts. The
Agent may consult with legal counsel (who may be counsel for
the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or
experts.
SECTION 7.5. Liability of Agent. Neither the
Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be liable for
any action taken or not taken by it or any of them in
connection herewith (i) with the consent or at the request
of the Required Banks or (ii) in the absence of its or their
own gross negligence or willful misconduct. Neither the
Agent nor any of its affiliates nor any of their respective
directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made
in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Borrower; (iii) the
satisfaction of any condition specified in Article III,
except receipt of items required to be delivered to the
Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing
furnished in connection herewith. The Agent shall not incur
any liability by acting in reliance upon any notice,
consent, certificate, statement, or other writing (which may
be a bank wire, telex or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
SECTION 7.6. Indemnification. Each Bank shall,
ratably in accordance with its Commitment, indemnify the
Agent, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed
by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss
or liability (except such as result from such indemnitees'
gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees
hereunder.
SECTION 7.7. Credit Decision. Each Bank
acknowledges that it has, independently and without reliance
upon the Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any
other Bank, 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 any action
under this Agreement.
SECTION 7.8. Successor Agent. The Agent may
resign at any time by giving notice thereof to the Banks and
the Borrower. Upon any such resignation, the Required Banks
shall have the right, with the consent of the Borrower, to
appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks, and shall have
accepted such appointment, within 30 days after the retiring
Agent gives notice of resignation, then the retiring Agent
may, on behalf of the Banks, appoint a successor Agent,
which shall be a commercial bank organized or licensed under
the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at
least $50,000,000. Upon the acceptance of its appointment
as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all
the rights 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 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent.
SECTION 7.9. Agent's Fee. The Borrower shall pay
to the Agent for its own account fees in the amounts and at
the times previously agreed upon between the Borrower and
the Agent.
ARTICLE VIII.
CHANGE IN CIRCUMSTANCES
SECTION 8.1. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of
any Interest Period for any Fixed Rate Borrowing:
(a) the Agent is advised by the Reference
Banks that deposits in dollars (in the applicable
amounts) are not being offered to the Reference
Banks in the relevant market for such Interest
Period, or
(b) in the case of a Committed Borrowing,
Banks having 50% or more of the aggregate amount
of the Commitments advise the Agent that the
Adjusted CD Rate or the Adjusted London Interbank
Offered Rate, as the case may be, as determined by
the Agent will not adequately and fairly reflect
the cost to such Banks of funding their CD Loans
or Euro-Dollar Loans, as the case may be, for such
Interest Period,
the Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Agent notifies
the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Banks to
make CD Loans or Euro-Dollar Loans, as the case may be,
shall be suspended. Unless the Borrower notifies the Agent
at least two Domestic Business Days before the date of any
Fixed Rate Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such
date, (i) if such Fixed Rate Borrowing is a Committed
Borrowing, such Borrowing shall instead be made as a Base
Rate Borrowing and (ii) if such Fixed Rate Borrowing is a
Money Market LIBOR Borrowing, the Money Market LIBOR Loans
comprising such Borrowing shall bear interest for each day
from and including the first day to but excluding the last
day of the Interest Period applicable thereto at the Base
Rate for such day.
SECTION 8.2. Illegality. If, on or after the
date of this Agreement, 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 Bank (or its Euro-Dollar Lending Office) with any
request or directive (whether or not having the force of
law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or
its Euro-Dollar Lending Office) to make, maintain or fund
its Euro-Dollar Loans and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Borrower, whereupon until such Bank
notifies the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Agent pursuant
to this Section, such Bank shall designate a different
Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such
Bank. If such Bank shall determine that it may not lawfully
continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the
then outstanding principal amount of each such Euro-Dollar
Loan, together with accrued interest thereon. Concurrently
with prepaying each such Euro-Dollar Loan, the Borrower
shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans
of the other Banks), and such Bank shall make such a Base
Rate Loan.
SECTION 8.3. Increased Cost and Reduced Return.
(a) If on or after (x) the date hereof, in the case of any
Committed Loan or any obligation to make Committed Loans or
(y) the date of the related Money Market Quote, in the case
of any Money Market Loan, 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 Bank (or its Applicable Lending Office) with any request
or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency shall
impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but
excluding (i) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve
Percentage and (ii) with respect to any Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar
Reserve Percentage), special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such
requirement reflected in an applicable Assessment Rate) or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or
its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank
market any other condition affecting its Fixed Rate Loans,
its Note or its obligation to make Fixed Rate Loans and the
result of any of the foregoing is to increase the cost to
such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of
any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its
Note with respect thereto, by an amount deemed by such Bank
to be material, then, within 15 days after demand by such
Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that, after
the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change in any
such 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 any request
or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank
or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or its
Parent) as a consequence of such Bank's obligations
hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change,
request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within 15
days after demand by such Bank (with a copy to the Agent),
the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank (or its Parent) for
such reduction.
(c) Each Bank will promptly notify the Borrower
and the Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such
Bank to compensation pursuant to this Section and will
designate a different 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
Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this
Section and setting forth the additional amount or amounts
to be paid to it hereunder shall be conclusive in the
absence of clearly demonstrable error. In determining such
amount, such Bank may use any reasonable averaging and
attribution methods.
SECTION 8.4. Taxes. (a) Any and all payments by
the Borrower to or for the account of any Bank or the Agent
hereunder or under any Note 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 Bank and the Agent, taxes
imposed on its income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank or the
Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes
imposed on its income, and franchise or similar taxes
imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision thereof (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 hereunder or under any Note to any Bank 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 8.04) such Bank or the Agent (as the case
may be) 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 address
referred to in Section 9.01, the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any
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 hereunder or under any Note or
from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note (hereinafter referred to as
"Other Taxes").
(c) The Borrower agrees to indemnify each Bank
and the Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable
under this Section 8.04) paid by such Bank or the Agent (as
the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 15 days
from the date such Bank or the Agent (as the case may be)
makes demand therefor.
(d) Each Bank 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 Bank listed on the signature pages hereof and
on or prior to the date on which it becomes a Bank in the
case of each other Bank, and from time to time thereafter if
requested in writing by the Borrower (but only so long as
such Bank remains lawfully able to do so), shall provide the
Borrower with Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Bank 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 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. If the form provided by a
Bank at the time such Bank first becomes a party to this
Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall
be considered excluded from "Taxes" as defined in Section
8.04(a).
(e) For any period with respect to which a Bank
has failed to provide the Borrower with the appropriate form
pursuant to Section 8.04(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 Bank shall not be entitled to
indemnification under Section 8.04(a) with respect to Taxes
imposed by the United States; provided, however, that should
a Bank, 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 Bank shall
reasonably request to assist such Bank to recover such
Taxes.
(f) If the Borrower is required to pay additional
amounts to or for the account of any Bank pursuant to this
Section 8.04, then such Bank will 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 Bank, is not otherwise
disadvantageous to such Bank.
SECTION 8.5. Base Rate Loans Substituted for
Affected Fixed Rate Loans. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant
to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03 or 8.04 with respect to its CD Loans or
Euro-Dollar Loans and the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through
the Agent, have elected that the provisions of this Section
shall apply to such Bank, then, unless and until such Bank
notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made
by such Bank as CD Loans or Euro-Dollar Loans, as
the case may be, shall be made instead as Base
Rate Loans (on which interest and principal shall
be payable contemporaneously with the related
Fixed Rate Loans of the other Banks), and
(b) after each of its CD Loans or
Euro-Dollar Loans, as the case may be, has been
repaid, all payments of principal which would
otherwise be applied to repay such Fixed Rate
Loans shall be applied to repay its Base Rate
Loans instead.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and
other communications to any party hereunder shall be in
writing (including bank wire, telex, facsimile transmission
or similar writing) and shall be given to such party: (x) in
the case of the Borrower or the Agent, at its address or
telex number set forth on the signature pages hereof, (y) in
the case of any Bank, at its address or telex number set
forth in its Administrative Questionnaire or (z) in the case
of any party, such other address or telex number as such
party may hereafter specify for the purpose by notice to the
Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when
such telex is transmitted to the telex number specified in
this Section and the appropriate answerback is received,
(ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section;
provided that notices to the Agent under Article II or
Article VIII shall not be effective until received.
SECTION 9.2. No Waivers. No failure or delay by
the Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note shall operate as a
waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 9.3. Expenses; Indemnification. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses
of the Agent, including fees and disbursements of special
counsel for the Agent, in connection with the preparation
and administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged
Default hereunder and (ii) if an Event of Default occurs,
all out-of-pocket expenses incurred by the Agent and each
Bank, including fees and disbursements of counsel, in
connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower agrees to indemnify the Agent
and each Bank, their respective affiliates and the
respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind, including, without
limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in
connection with any administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party
thereto) brought or threatened relating to or arising out of
this Agreement or any actual or proposed use of proceeds of
Loans hereunder; provided that no Indemnitee shall have the
right to be indemnified hereunder for such Indemnitee's own
gross negligence or willful misconduct as determined by a
court of competent jurisdiction.
SECTION 9.4. Sharing of Set-Offs. Each Bank
agrees that if it shall, by exercising any right of set-off
or counterclaim or otherwise, receive payment of a
proportion of the aggregate amount of principal and interest
due with respect to any Note held by it which is greater
than the proportion received by any other Bank in respect of
the aggregate amount of principal and interest due with
respect to any Note held by such other Bank, the Bank
receiving such proportionately greater payment shall
purchase such participations in the Notes held by the other
Banks, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest
with respect to the Notes held by the Banks shall be shared
by the Banks pro rata; provided that nothing in this Section
shall impair the right of any Bank to exercise any right of
set-off or counterclaim it may have and to apply the amount
subject to such exercise to the payment of indebtedness of
the Borrower other than its indebtedness under the Notes.
The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a
participation in a Note acquired pursuant to the foregoing
arrangements may exercise rights of set-off or counterclaim
and other rights with respect to such participation as fully
as if such holder of a participation were a direct creditor
of the Borrower in the amount of such participation.
SECTION 9.5. Amendments and Waivers. Any
provision of this Agreement or the Notes 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 Banks
(and, if 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 Banks, (i) increase
or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any
Bank to any additional obligation, (ii) reduce the principal
of or rate of interest on any Loan or any fees hereunder,
(iii) postpone the date fixed for any payment of principal
of or interest on any Loan or any fees hereunder or for or
termination of any Commitment, (iv) postpone the Commitment
Reduction Date or change the aggregate amount to which the
Commitments are required to be reduced on or prior to the
Commitment Reduction Date or (v) change the percentage of
the Commitments or of the aggregate unpaid principal amount
of the Notes, or the number of Banks, which shall be
required for the Banks or any of them to take any action
under this Section or any other provision of this Agreement.
SECTION 9.6. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more
banks or other institutions (each a "Participant")
participating interests in its Commitment or any or all of
its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon
notice to the Borrower and the Agent, such Bank shall remain
responsible for the performance of its obligations
hereunder, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement.
Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without
limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that
such participation agreement may provide that such Bank will
not agree to any modification, amendment or waiver of this
Agreement described in clause (i), (ii), (iii) or (iv) of
Section 9.05 without the consent of the Participant. The
Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the
benefits of Article VIII with respect to its participating
interest. An assignment or other transfer which is not
permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of
a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or
more banks or other institutions (each an "Assignee") all,
or a proportionate part of all, of its rights and
obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant
to an Assignment and Assumption Agreement in substantially
the form of Exhibit G hereto executed by such Assignee and
such transferor Bank, with (and subject to) notice to, and
the subscribed consent of, the Borrower and the Agent (such
consent of the Borrower and the Agent not to be unreasonably
withheld); provided that (i) if an Assignee is an affiliate
of such transferor Bank, such notice shall be given but no
such consent shall be required, (ii) such assignment may,
but need not, include rights of the transferor Bank in
respect of outstanding Money Market Loans, (iii) unless the
assignment covers all rights and obligations of such
assignor Bank, the assignment shall cover the equivalent of
a Commitment of not less than $10,000,000 and (iv) the
remaining Commitment (if any) of the assignor Bank after any
such assignment is at least $10,000,000. Upon execution and
delivery of such instrument and payment by such Assignee to
such transferor Bank of an amount equal to the purchase
price agreed between such transferor Bank and such Assignee,
such Assignee shall be a Bank party to this Agreement and
shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption,
and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required.
Upon the consummation of any assignment pursuant to this
subsection (c), the transferor Bank, the Agent and the
Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. In
connection with any such assignment, the transferor Bank
shall pay to the Agent an administrative fee for processing
such assignment in the amount of $2,500. If the Assignee is
not incorporated under the laws of the United States of
America or a state thereof, it shall, prior to the first
date on which interest or fees are payable hereunder for its
account, deliver to the Borrower and the Agent certification
as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 8.04.
(d) Any Bank may at any time assign all or any
portion of its rights under this Agreement and its Note to a
Federal Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee
of any Bank's rights shall be entitled to receive any
greater payment under Section 8.03 than such Bank would have
been entitled to receive with respect to the rights
transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the
provisions of Section 8.02, 8.03 or 8.04 requiring such Bank
to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
SECTION 9.7. Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it
in good faith is not relying upon any "margin stock" (as
defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.8. Governing Law; Submission to
Jurisdiction. This Agreement and each Note shall be
governed by and construed in accordance with the laws of the
State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New
York State court sitting in New York City for purposes of
all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The
Borrower irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to
the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought
in such a court has been brought in an inconvenient forum.
SECTION 9.9. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE
BORROWER, THE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective
authorized officers as of the day and year first above
written.
RITE AID CORPORATION
By /s/ Frank M. Bergonzi
Title: Executive Vice President
Chief Financial Officer
30 Hunter Lane
Camp Hill, PA 17011
Attention: Mr. Frank M. Bergonzi
Chief Financial Officer
Telephone No.: (717) 975-5750
Telecopier No.: (717) 975-3764
Commitments
$150,000,000 MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:/s/ James E. Condon
Name: James E. Condon
Title: Vice President
$120,000,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
By:/s/ Ambrish D. Thanawala
Name: Ambrish D. Thanawala
Title: Vice President
$120,000,000 THE CHASE MANHATTAN BANK, N.A.
By:/s/ Dawn Lee Lum
Name: Dawn Lee Lum
Title: Vice President
$120,000,000 CITIBANK, N.A.
By:/s/ Jolie Eisner
Name: Jolie Eisner
Title: Attorney-In-Fact
$120,000,000 MELLON BANK N.A.
By:/s/ Euclid B. Noble
Name: Euclid B. Noble
Title: Assistant Vice
President
$120,000,000 NATIONSBANK, N.A.
By:/s/ Peter C. Morrison
Name: Peter C. Morrison
Title: Senior Vice President
$120,000,000 PNC BANK, NATIONAL ASSOCIATION
By:/s/ Robert Q. Reilly
Name: Robert Q. Reilly
Title: Vice President-Senior
Relationship Manager
$91,000,000 ABN AMRO BANK N.V.
By: ABN AMRO NORTH AMERICA, INC.,
as Agent
By:/s/ J.M. Janovsky
Name: J.M. Janovsky
Title: Group Vice President
By:/s/ Kathryn C. Toth
Name: Kathryn C. Toth
Title: Vice President
$91,000,000 THE BANK OF NOVA SCOTIA
By:/s/ J. Alan Edwards
Name: J. Alan Edwards
Title: Authorized Signatory
$91,000,000 COMMERZBANK AG
By:Andrew Campbell
Name: Andrew Campbell
Title: Assistant Cashier
By:/s/ J. Schmieding
Name: Juergen Schmieding
Title: Vice President
$91,000,000 THE FUJI BANK, LIMITED
By:/s/ Teiji Teramoto
Name: Teiji Teramoto
Title: Vice President &
Manager
$91,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By:/s/ Adam T. Ogburn
Name: Adam T. Ogburn
Title: Vice President
$75,000,000 THE BANK OF TOKYO TRUST COMPANY
By:/s/ Mark R. Marron
Name: M.R. Marron
Title: Vice President
$75,000,000 THE MITSUBISHI BANK, LIMITED
By:/s/ Robert J. Dilloff
Name: Robert J. Dilloff
Title: Vice President
$75,000,000 NBD BANK
By:/s/ Timothy J. King
Name: Timothy J. King
Title: Second Vice President
$75,000,000 ROYAL BANK OF CANADA
By:/s/ Peter D. Steffen
Name: Peter D. Steffen
Title: Senior Manager
$75,000,000 THE SAKURA BANK, LIMITED
By:/s/ Masahiro Nakajo
Name: Masahiro Nakajo
Title: Senior Vice President
& Manager
$75,000,000 THE SANWA BANK LIMITED,
NEW YORK BRANCH
By:/s/ Joseph E. Leo
Name: Joseph E. Leo
Title: Vice President and
Area Manager
$75,000,000 THE TOKAI BANK, LTD.
By:/s/ Stuart M. Schulman
Name: Stuart M. Schulman
Title: Senior Vice President
$50,000,000 BANK OF MONTREAL
By:/s/ Thomas H. Peer
Name: Thomas H. Peer
Title: Director
$50,000,000 THE BANK OF NEW YORK
By:/s/ Michael Flannery
Name: Michael Flannery
Title: Vice President
$50,000,000 CREDIT SUISSE
By:/s/ Christopher J. Eldin
Name: Christopher J. Eldin
Title: Member of Senior
Management
By:/s/ Adrian Germann
Name: Adrian Germann
Title: Associate
$50,000,000 THE DAI-ICHI KANGYO BANK, LTD.
By:/s/ Kim P. Leary
Name: Kim P. Leary
Title: Vice President
$50,000,000 FLEET NATIONAL BANK OF
MASSACHUSETTS
By:/s/ Richard Seufert
Name: Richard Seufert
Title: Vice President
$50,000,000 THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By:/s/ J. Kenneth Biegen
Name: J. Kenneth Biegen
Title: Senior Vice President
$50,000,000 NATWEST BANK, N.A.
By:/s/ Thomas L. Savage
Name: Thomas L. Savage
Title: Vice President
$50,000,000 THE NORTHERN TRUST COMPANY
By:/s/ Lawson E. Whiting
Name: Lawson E. Whiting
Title: Commercial Banking
Officer
$50,000,000 SOCIETY NATIONAL BANK
By:/s/ Karen A. Lee
Name: Karen A. Lee
Title: Vice President
$50,000,000 THE SUMITOMO BANK, LIMITED
By:/s/ Y. Kawamura
Name: Y. Kawamura
Title: Joint General Manager
$50,000,000 SUNTRUST BANK, CENTRAL FLORIDA,
N.A.
By:/s/ Lorraine D. McCullers
Name: Lorraine D. McCullers
Title: Vice President
$50,000,000 SWISS BANK CORPORATION,
CHICAGO BRANCH
By:/s/ H. Clark Worthley
Name: H. Clark Worthley
Title: Associate Director
By:/s/ Lynne Karmin
Name: Lynne Karmin
Title: Associate Director
$50,000,000 UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By:/s/ Stephen A. Cayer
Name: Stephen A. Cayer
Title: Assistant Treasurer
By:/s/ Peter B. Yearley
Name: Peter B. Yearley
Title: Managing Director
_________________
Total Commitments
$2,500,000,000
=================
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ James E. Condon
Title: Vice President
60 Wall Street
New York, New York 10260-0060
Attention:
Telex number:
PRICING SCHEDULE
The "Euro-Dollar Margin", "CD Margin", and
"Facility Fee Rate" for any day are the respective
percentages set forth below in the applicable row under the
column corresponding to the Status that exists on such day
provided that each of the Euro-Dollar Margin, CD Margin and
Facility Fee Rate shall be based on Level III Status until
the Agent has received evidence satisfactory to it that the
Borrower's long-term debt ratings have been affirmed by S&P
and Moody's after giving effect to the Offer and provided
further that if the Agent has not received such confirmation
by June 30, 1996, each of the Euro-Dollar Margin, CD Margin
and Facility Fee Rate shall be based on Level IV Status
until the Agent receives such confirmation:
Level Level Level Level Level
Status I II III IV V
Euro-Dollar .1850% .2750% .2900% .3125% .4500%
Margin
CD Margin .3100% .4000% .4150% .4375% .5750%
Facility Fee .0900% .1000% .1350% .1875% .2500%
Rate
For purposes of this Schedule, the following terms
have the following meanings, subject to the concluding
paragraph of this Schedule:
"Level I Status" exists at any date if, at such
date, the Borrower's long-term debt is rated A- or higher by
S&P and A3 or higher by Moody's.
"Level II Status" exists at any date if, at such
date, (i) the Borrower's long-term debt is rated BBB+ or
higher by S&P or Baa1 or higher by Moody's and (ii) Level I
Status does not exist.
"Level III Status" exists at any date if, at such
date, (i) the Borrower's long-term debt is rated BBB or
higher by S&P or Baa2 or higher by Moody's and (ii) neither
Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such
date, (i) the Borrower's long-term debt is rated BBB- or
higher by S&P or Baa3 or higher by Moody's and (ii) none of
Level I Status, Level II Status and Level III Status exists.
"Level V Status" exists at any date if, at such
date, no other Status exists.
"Moody's" means Moody's Investors Service, Inc.
"S&P" means Standard & Poor's Ratings Group.
"Status" refers to the determination of which of
Level I Status, Level II Status, Level III Status, Level IV
Status or Level V Status exists at any date.
The credit ratings to be utilized for purposes of this
Schedule are those assigned to the senior unsecured long-
term debt securities of the Borrower without third-party
credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The
rating in effect at any date is that in effect at the close
of business on such date.
For purposes of determining whether Level II Status, Level
III Status or Level IV Status applies: (a) if the Borrower
is split-rated and the differential is one category, the
higher rating category will apply (e.g., BBB+/Baa2 results
in Level II Status); but (b) if the Borrower is split-rated
and the differential is two categories or more, the rating
at the midpoint will apply (e.g., BBB+/Baa3 results in Level
III Status) and if there is no such midpoint category, the
higher of the two intermediate categories will apply (e.g.,
BBB/Ba2 results in Level IV Status).
EXHIBIT A
NOTE
New York, New York
____________, 1996
For value received, Rite Aid Corporation, a
Delaware corporation (the "Borrower"), promises to pay to
the order of _________________________ (the "Bank"), for the
account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below
on the last day of the Interest Period relating to such
Loan. The Borrower promises to pay interest on the unpaid
principal amount of each such Loan on the dates and at the
rate or rates provided for in the Credit Agreement. All
such payments of principal and interest shall be made in
lawful money of the United States in Federal or other
immediately available funds at the office of Morgan Guaranty
Trust Company of New York, 60 Wall Street, New York, New
York.
All Loans made by the Bank, the respective types
and maturities thereof and all repayments of the principal
thereof shall be recorded by the Bank and, if the Bank so
elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding
may be endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit
Agreement.
This note is one of the Notes referred to in the
$2,500,000,000 Credit Agreement dated as of March 15, 1996
among the Borrower, the banks from time to time parties
thereto and Morgan Guaranty Trust Company of New York, as
Agent (as the same may be amended from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement
are used herein with the same meanings. Reference is made
to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
RITE AID CORPORATION
By _________________________
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
___________________________________________________________
Amount of
Amount of Type of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
EXHIBIT B
Form of Money Market Quote Request
______________, 19__
To: Morgan Guaranty Trust Company of New York
(the "Agent")
From: Rite Aid Corporation
Re: $2,500,000,000 Credit Agreement (as amended from
time to time, the "Credit Agreement") dated as of
March 15, 1996 among the Borrower, the Banks from
time to time parties thereto and the Agent
We hereby give notice pursuant to Section 2.03 of
the Credit Agreement that we request Money Market Quotes for
the following proposed Money Market Borrowing(s):
Date of Borrowing: _______________
Principal Amount * Interest Period**
$
Such Money Market Quotes should offer a Money
Market [Margin] [Absolute Rate]. [The applicable base rate
is the London Interbank Offered Rate.]
Terms used herein have the meanings assigned to
them in the Credit Agreement.
RITE AID CORPORATION
By______________________
Title:
_________________
* Amount must be $10,000,000 or a larger multiple of
$1,000,000.
** Not less than one month (LIBOR Auction) or not less
than 14 days (Absolute Rate Auction), subject to the
provisions of the definition of Interest Period.
EXHIBIT C
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes
to Rite Aid Corporation (the "Borrower")
Pursuant to Section 2.03 of the $2,500,000,000
Credit Agreement dated as of March 15, 1996 among the
Borrower, the Banks from time to time parties thereto and
the undersigned, as Agent, we are pleased on behalf of the
Borrower to invite you to submit Money Market Quotes to the
Borrower for the following proposed Money Market
Borrowing(s):
Date of Borrowing: ________________
Principal Amount Interest Period
$
Such Money Market Quotes should offer a Money
Market [Margin] [Absolute Rate]. [The applicable base rate
is the London Interbank Offered Rate.]
Please respond to this invitation by no later than
[2:00 P.M.] [9:15 A.M.] (New York City time) on [date].
Terms used herein have the meanings assigned to
them in the Credit Agreement referred to above.
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By________________________
Authorized Officer
EXHIBIT D
Form of Money Market Quote
To: Morgan Guaranty Trust Company
of New York, as Agent
Attention:
Re: Money Market Quote to
Rite Aid Corporation (the "Borrower")
In response to your invitation on behalf of the
Borrower dated ____________, 19__, we hereby make the
following Money Market Quote on the following terms:
1. Quoting Bank:_____________________
2. Person to contact at Quoting Bank:
____________________________
3. Date of Borrowing:______________
4. We hereby offer to make Money Market Loan(s) in
the following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
$
$
[Provided, that the aggregate principal amount of
Money Market Loans for which the above offers may be
accepted shall not exceed $________________.]**
_________________
*As specified in the related Invitation.
**Principal amount bid for each Interest Period may not
exceed principal amount requested. Specify aggregate
limitation if the sum of the individual offers exceeds the
amount the Bank is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
***Not less than one month or not less than 14 days, as
specified in the related Invitation. No more than five bids
are permitted for each Interest Period.
****Margin over or under the London Interbank Offered
Rate determined for the applicable Interest Period. Specify
percentage (to the nearest 1/10,000 of 1%) and specify
whether "PLUS" or "MINUS".
*****Specify rate of interest per annum (to the nearest
1/10,000th of 1%).
We understand and agree that the offer(s) set
forth above, subject to the satisfaction of the applicable
conditions set forth in the $2,500,000,000 Credit Agreement
dated as of March 15, 1996 among the Borrower, the Banks
from time to time parties thereto and yourselves, as Agent,
irrevocably obligates us to make the Money Market Loan(s)
for which any offer(s) are accepted, in whole or in part.
Terms used herein have the meanings assigned to
them in the Credit Agreement referred to above.
Very truly yours,
[NAME OF BANK]
Dated:__________________ By:_____________________
Authorized Officer
EXHIBIT E-1
OPINION OF
SPECIAL COUNSEL FOR THE BORROWER
[EFFECTIVE DATE]
To the Banks and the Agent
listed on Schedule I hereto
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260-0060
Re: Rite Aid Corporation
Ladies and Gentlemen:
We have acted as special counsel to Rite Aid
Corporation, a Delaware corporation (the "Borrower"), in
connection with the execution and delivery of the Credit
Agreement, dated as of March 15, 1996 (the "Credit
Agreement"), among the Borrower, the banks listed on
Schedule I hereto (collectively, the "Banks") and Morgan
Guaranty Trust Company of New York, as agent (in such
capacity, the "Agent") for the Banks. This opinion is being
delivered pursuant to Section 3.01(c) of the Credit
Agreement. Capitalized terms used herein but not otherwise
defined herein shall have the meanings assigned to them in
the Credit Agreement.
In rendering the opinions set forth herein, we
have examined and relied on originals or copies of the
following:
(a) the Credit Agreement;
(b) the Notes issued to each of the Banks, each
dated March __, 1996 (the "Notes");
(c) a certified copy of the Certificate of
Incorporation and By-laws of the Borrower;
(d) a certified copy of certain resolutions of
the Board of Directors of the Borrower;
(e) certificates from the Secretary of State of
the State of Delaware as to the good standing of the
Borrower in the State of Delaware; and
(f) such other documents as we have deemed
necessary or appropriate as a basis for the opinions set
forth below.
In our examination we have assumed the genuineness
of all signatures, the legal capacity of natural persons,
the authenticity of all documents submitted to us as
originals, the conformity to original documents of all
documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such
copies. As to any facts material to this opinion which we
did not independently establish or verify, we have relied
upon statements and representations of the Borrower and its
officers and other representatives and of public officials,
including the facts set forth in the certificate of the
Borrower delivered pursuant to Section 3.01(e) of the Credit
Agreement.
We express no opinion as to the laws of any
jurisdiction other than (i) the laws of the State of New
York, (ii) the General Corporation Law of the State of
Delaware and (iii) the federal laws of the United States of
America to the extent specifically referred to herein.
In rendering the opinions set forth herein, we
have assumed, with your consent, that:
(a) the execution, delivery and performance by
the Borrower of the Credit Agreement and the Notes do not
and will not conflict with, contravene, violate or
constitute a default under (i) any lease, indenture,
instrument or other agreement to which the Borrower or its
property is subject, (ii) any rule, law or regulation to
which the Borrower is subject (other than Regulations G, U
and X of the Board of Governors of the Federal Reserve
System as to which we express our opinion in paragraph 3
below), (iii) any judicial or administrative order or decree
of any governmental authority or (iv) any consent, approval,
license, authorization or validation of, or filing,
recording or registration with, any governmental authority;
and
(b) no authorization, consent or other approval
of, notice to or filing with, any court, governmental
authority or regulatory body is required to authorize or is
required in connection with the execution, delivery or
performance by the Borrower of the Credit Agreement, the
transactions contemplated thereby or the Notes.
Our opinions are also subject to the following
assumptions and qualifications:
(a) we have assumed that the Credit Agreement
constitutes the legal, valid and binding obligation of each
of the Banks and the Agent enforceable against each such
party in accordance with its terms;
(b) except for the opinion expressed in paragraph
3 below, we express no opinion as to the effect on the
opinions herein stated of (i) the compliance or
noncompliance of each of the Banks or the Agent with any
state, federal or other laws or regulations applicable to it
or (ii) the legal or regulatory status or the nature of the
business of each of the Banks or the Agent;
(c) enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether
enforcement is sought in equity or at law);
(d) we express no opinion as to the
enforceability of any rights to contribution or
indemnification provided for in the Credit Agreement which
are violative of the public policy underlying any law, rule
or regulation (including any federal or state securities
law, rule or regulation); and
(e) we express no opinion as to any provision of
the Credit Agreement which authorizes or permits any
purchaser of a participation interest from any Bank to
set-off or apply any deposit, property or indebtedness with
respect to any such participation interest.
Based upon the foregoing and subject to the
limitations, qualifications, exceptions and assumptions set
forth herein, we are of the opinion that:
1. The Borrower has the corporate power and
authority to execute, deliver and perform all of its
obligations under the Credit Agreement and the Notes. The
execution, delivery and performance of each of the Credit
Agreement and the Notes by the Borrower have been duly
authorized by all requisite corporate action on the part of
the Borrower. Each of the Credit Agreement and the Notes
has been duly executed and delivered by the Borrower.
2. Each of the Credit Agreement and the Notes
constitutes the valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance
with its terms.
3. Neither the execution, delivery or
performance by the Borrower of the Credit Agreement or the
Notes, Borrowings thereunder and application of the proceeds
of such Borrowings nor the compliance by the Borrower with
the terms and provisions thereof will contravene any
provision of Regulation G, U and X of the Federal Reserve
Board.
This opinion is being furnished to you and is
solely for your benefit in connection with the transactions
contemplated by the Credit Agreement and is not to be used,
circulated, quoted, relied upon or otherwise referred to for
any other purpose without our prior written consent.
Very truly yours,
SCHEDULE I
1. Morgan Guaranty Trust Company of New York, as
Agent, a Bank under the Credit Agreement, 60 Wall Street,
New York, New York 10260-0060.
2. Banks:
Morgan Guaranty Trust Company of New York
[list of Banks -- to come]
EXHIBIT E-2
OPINION OF ASSISTANT CHIEF LEGAL
COUNSEL OF THE BORROWER
[EFFECTIVE DATE]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
I am Senior Vice President and Assistant Chief
Legal Counsel of Rite Aid Corporation (the "Borrower"), and
I have advised the Borrower in connection with the
$2,500,000,000 Credit Agreement (the "Credit Agreement")
dated as of March 15, 1996 among the Borrower, the banks
from time to time parties thereto and Morgan Guaranty Trust
Company of New York, as Agent. Terms defined in the Credit
Agreement and not otherwise defined herein are used herein
as therein defined. This opinion is being rendered to you
at the request of my client pursuant to Section 3.01(c) of
the Credit Agreement.
I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as I have deemed necessary or
advisable for purposes of this opinion.
Upon the basis of the foregoing, I am of the
opinion that:
1. The Borrower is a corporation duly
incorporated, validly existing and in good standing under
the laws of the State of Delaware, and has all corporate
powers and all material governmental licenses,
authorizations, consents and approvals required to carry on
its business as now conducted.
2. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within
the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency
or official and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower
or of any agreement or instrument evidencing or governing
Debt of the Borrower or any subsidiary of the Borrower which
was a subsidiary prior to the consummation of the Offer (a
"Subsidiary") or any other material agreement, instrument,
judgment, injunction, order or decree binding upon the
Borrower or any Subsidiary or result in the creation or
imposition of any Lien on any asset of the Borrower or any
Subsidiary pursuant to any such agreement, instrument,
judgment, injunction, order or decree.
3. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and each Note constitutes
a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms except as the same
may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general
principles of equity.
4. There is no action, suit or proceeding pending
against, or to the best of my knowledge threatened against
or affecting, the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the
business, consolidated financial position or consolidated
results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole or which in any manner
draws into question the validity of the Credit Agreement or
the Notes.
5. Each of the Borrower's corporate Significant
Subsidiaries is a corporation validly existing and in good
standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.
In giving the foregoing opinion, I express no
opinion as to the effect (if any) of any law of any
jurisdiction (except the State of [__________]) in which any
Bank is located which limits the rate of interest that such
Bank may charge or collect.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by
any other person without my prior written consent.
Very truly yours,
EXHIBIT F
OPINION OF
DAVIS POLK & WARDWELL, SPECIAL COUNSEL
FOR THE AGENT
[EFFECTIVE DATE]
To the Banks and the Agent
Referred to Below
c/o Morgan Guaranty Trust Company
of New York, as Agent
60 Wall Street
New York, New York 10260-0060
Dear Sirs:
We have participated in the preparation of the
$2,500,000,000 Credit Agreement (the "Credit Agreement")
dated as of March 15, 1996 among Rite Aid Corporation, a
Delaware corporation (the "Borrower"), the banks from time
to time parties thereto (the "Banks") and Morgan Guaranty
Trust Company of New York, as Agent (the "Agent"), and have
acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 3.01(d) of the
Credit Agreement. Terms defined in the Credit Agreement are
used herein as therein defined.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.
Upon the basis of the foregoing, we are of the
opinion that:
1. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within
the Borrower's corporate powers and have been duly
authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and
binding agreement of the Borrower and each Note constitutes
a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms except as the same
may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and by general
principles of equity.
We are members of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the
State of New York, the federal laws of the United States of
America and the General Corporation Law of the State of
Delaware. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any
Bank is located which limits the rate of interest that such
Bank may charge or collect.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by
any other person without our prior written consent.
Very truly yours,
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of __________, 19__ among
[ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee"),
RITE AID CORPORATION (the "Borrower") and MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, as Agent (the "Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement
(the "Agreement") relates to the $2,500,000,000 Credit
Agreement dated as of March 15, 1996 among the Borrower, the
Assignor and the other Banks party thereto, as Banks, and
the Agent (as amended from time to time, the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement,
the Assignor has a Commitment to make Committed Loans to the
Borrower in an aggregate principal amount at any time
outstanding not to exceed $_________;
WHEREAS, Committed Loans made to the Borrower by
the Assignor under the Credit Agreement in the aggregate
principal amount of $_______ are outstanding at the date
hereof; and
WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Credit
Agreement in respect of a portion of its Commitment
thereunder in an amount equal to $___________ (the
"Assigned Amount"), together with a corresponding portion
of its outstanding Committed Loans, and the Assignee
proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties
hereto agree as follows:
SECTION 1. Definitions. All capitalized terms
not otherwise defined herein shall have the respective
meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby
assigns and sells to the Assignee all of the rights of the
Assignor under the Credit Agreement to the extent of the
Assigned Amount, and the Assignee hereby accepts such
assignment from the Assignor and assumes all of the
obligations of the Assignor under the Credit Agreement to
the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the
principal amount of the Committed Loans made by the Assignor
outstanding at the date hereof. Upon the execution and
delivery hereof by the Assignor, the Assignee, the Borrower
and the Agent and the payment of the amounts specified in
Section 3 required to be paid on the date hereof (i) the
Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under
the Credit Agreement with a Commitment in an amount equal to
the Assigned Amount, and (ii) the Commitment of the Assignor
shall, as of the date hereof, be reduced by a like amount
and the Assignor released from its obligations under the
Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein
shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the
Assignee shall pay to the Assignor on the date hereof in
Federal funds an amount equal to $_______.
____________________
* It is understood that facility fees accrued to the
date hereof are for the account of the Assignor and such fees
accruing from and including the date hereof in respect of the
Assigned Amount are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives
any amount under the Credit Agreement which is for the
account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such
other party's interest therein and shall promptly pay the
same to such other party.
SECTION 4. Consent of the Borrower and the Agent.
This Agreement is conditioned upon the consent of the
Borrower and the Agent pursuant to Section 9.06(c) of the
Credit Agreement. The execution of this Agreement by the
Borrower and the Agent is evidence of this consent.
Pursuant to Section 9.06(c) the Borrower agrees to execute
and deliver a Note payable to the order of the Assignee to
evidence the assignment and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The
Assignor makes no representation or warranty in connection
with, and shall have no responsibility with respect to, the
solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the
obligations of the Borrower in respect of the Credit
Agreement or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to
enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the
business, affairs and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of
the State of New York.
__________________
*Amount should combine principal together with accrued
interest and breakage compensation, if any, to be paid by
the Assignee, net of any portion of any upfront fee to be
paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generically
or by formula rather than as a fixed sum.
SECTION 7. Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By________________________
Title:
[ASSIGNEE]
By________________________
Title:
RITE AID CORPORATION
By________________________
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By________________________
Title:
