SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
FORM 10-Q
Quarterly Report under Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the Quarterly Period Ended Commission File
October 1, 1994 No. 0-17540
MONTGOMERY WARD HOLDING CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3571585
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Montgomery Ward Plaza
Chicago, Illinois 60671
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number Including Area Code:
(312) 467-2000
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes X No .
At October 29, 1994, there were 19,480,533 shares of Class A
Common Stock and 25,000,000 shares of Class B Common Stock of the
Registrant outstanding.
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<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
INDEX
Page
Montgomery Ward Holding Corp.
Consolidated Statements of Income . . . . . . . . .2
Consolidated Condensed Balance Sheet. . . . . . . .4
Consolidated Statement of Cash Flows. . . . . . . .5
Notes to Consolidated Condensed Financial
Statements . . . . . . . . . . . . . . . . . . . .7
<PAGE>
MONTGOMERY WARD HOLDING CORP.
CONSOLIDATED STATEMENT OF INCOME
(Millions of dollars, except per share amounts)
For the 13-Week
Period Ended
October 1, October 2,
1994 1993
Revenues
Net sales, including leased and
licensed department sales. . . . . . . $1,574 $ 1,327
Direct response marketing revenues,
including insurance. . . . . . . . . . 119 102
Total Revenues . . . . . . . . . . . 1,693 1,429
Costs and Expenses
Cost of goods sold, including net
occupancy and buying expense . . . . . 1,234 1,009
Operating, selling, general and
administrative expenses, including
benefits and losses of direct
response operations. . . . . . . . . . 420 383
Interest expense, net of investment
income . . . . . . . . . . . . . . . . 16 13
Total Costs and Expenses . . . . . . 1,670 1,405
Income Before Income Taxes . . . . . . . 23 24
Income Tax Expense . . . . . . . . . . . 8 10
Net Income . . . . . . . . . . . . . . . 15 14
Preferred Stock Dividend Requirements. . 1 -
Net Income Applicable to
Common Shareholders . . . . . . . . . . $ 14 $ 14
Net Income per Common Share
Class A . . . . . . . . . . . . . . . . $ .33 $ .33
Class B . . . . . . . . . . . . . . . . $ .29 $ .29
Cash Dividends Declared Per Common Share
Class A . . . . . . . . . . . . . . . . $ - $ .50
Class B . . . . . . . . . . . . . . . . $ - $ .50
See notes to consolidated condensed financial statements.
<PAGE>
MONTGOMERY WARD HOLDING CORP.
CONSOLIDATED STATEMENT OF INCOME
(Millions of dollars, except per share amounts)
For the 39-Week
Period Ended
October 1, October 2,
1994 1993
Revenues
Net sales, including leased and
licensed department sales. . . . . . . $4,310 $ 3,770
Direct response marketing revenues,
including insurance. . . . . . . . . . 339 298
Total Revenues . . . . . . . . . . . 4,649 4,068
Costs and Expenses
Cost of goods sold, including net
occupancy and buying expense . . . . . 3,347 2,845
Operating, selling, general and
administrative expenses, including
benefits and losses of direct
response operations. . . . . . . . . . 1,182 1,107
Interest expense, net of investment
income . . . . . . . . . . . . . . . . 41 34
Total Costs and Expenses . . . . . . 4,570 3,986
Income Before Income Taxes . . . . . . . 79 82
Income Tax Expense . . . . . . . . . . . 26 31
Net Income . . . . . . . . . . . . . . . 53 51
Preferred Stock Dividend Requirements. . 2 -
Net Income Applicable to
Common Shareholders . . . . . . . . . . $ 51 $ 51
Net Income per Common Share
Class A . . . . . . . . . . . . . . . . $ 1.18 $1.16
Class B . . . . . . . . . . . . . . . . $ 1.02 $1.03
Cash Dividends Declared Per Common Share
Class A . . . . . . . . . . . . . . . . $ .50 $ .50
Class B . . . . . . . . . . . . . . . . $ .50 $ .50
See notes to consolidated condensed financial statements.
<PAGE>
MONTGOMERY WARD HOLDING CORP.
CONSOLIDATED CONDENSED BALANCE SHEET
(Millions of dollars)
ASSETS
October 1, January 1,
1994 1994
Cash and cash equivalents . . . . . . $ 37 $ 98
Short-term investments . . . . . . . . 25 19
Investments of insurance operations. . 305 296
Total Cash and Investments . . . . 367 413
Trade and other accounts receivable. . 94 62
Accounts and notes receivable
from affiliates . . . . . . . . . . . 14 4
Total Receivables. . . . . . . . . 108 66
Merchandise inventories. . . . . . . . 1,630 1,242
Prepaid pension contribution . . . . . 321 310
Properties, plants and equipment,
net of accumulated depreciation
and amortization. . . . . . . . . . . 1,367 1,263
Direct response insurance
acquisition costs . . . . . . . . . . 312 295
Other assets . . . . . . . . . . . . . 383 246
Total Assets . . . . . . . . . . . . . $4,488 $3,835
LIABILITIES AND SHAREHOLDERS' EQUITY
Short-term borrowings. . . . . . . . . $ 562 $ -
Trade accounts payable . . . . . . . . 1,410 1,358
Accrued liabilities and other
obligations . . . . . . . . . . . . . 1,134 1,197
Federal income taxes payable . . . . . 3 7
Insurance policy claim reserves. . . . 236 237
Long-term debt . . . . . . . . . . . . 233 213
Obligations under capital leases . . . 83 89
Deferred federal income taxes. . . . . 120 127
Total Liabilities. . . . . . . . . 3,781 3,228
Redeemable Preferred Stock . . . . . . 75 -
Shareholders' Equity
Common stock. . . . . . . . . . . . . - -
Capital in excess of par value. . . . 21 19
Retained earnings . . . . . . . . . . 687 658
Unrealized gain on marketable
securities . . . . . . . . . . . . . 5 3
Less: Treasury stock, at cost. . . . (81) (73)
Total Shareholders' Equity . . . . 632 607
Total Liabilities and
Shareholders' Equity. . . . . . . . . $4,488 $3,835
See notes to consolidated condensed financial statements.
<PAGE>
MONTGOMERY WARD HOLDING CORP.
CONSOLIDATED STATEMENT OF CASH FLOWS
(Millions of dollars)
For the 39-Week
Period Ended
October 1, October 2,
1994 1993
Cash flows from operating activities:
Net income. . . . . . . . . . . . . . . $ 53 $ 51
Adjustments to reconcile net income
to net cash provided by operating
activities:
Depreciation and amortization. . . . 78 74
Deferred income taxes. . . . . . . . 10 11
Changes in operating assets and
liabilities:
(Increase) decrease in:
Trade and other accounts
receivable . . . . . . . . . . . . (20) (14)
Accounts and notes receivable
from affiliates. . . . . . . . . . (10) 1
Merchandise inventories . . . . . . (248) (254)
Prepaid pension contribution. . . . (11) (10)
Other assets. . . . . . . . . . . . (43) (38)
Increase (decrease) in:
Trade accounts payable. . . . . . . (17) (78)
Federal income taxes payable, net . (4) (4)
Accrued liabilities and other
obligations. . . . . . . . . . . . (125) (81)
Insurance policy claim reserves . . (1) (2)
Net cash used in operations. . . (338) (344)
Cash flows from investing activities:
Acquisition of Lechmere, net of
cash acquired. . . . . . . . . . . . . (109) -
Purchase of short-term investments. . . (183) (170)
Purchase of investments of insurance
operations . . . . . . . . . . . . . . (476) (455)
Sale of short-term investments. . . . . 177 165
Sale of investments of insurance
operations . . . . . . . . . . . . . . 470 450
Capital expenditures. . . . . . . . . . (114) (93)
Disposition of properties, plants and
equipment, net . . . . . . . . . . . . 1 3
Sale of assets held for disposition . . 1 3
Net cash used for
investing activities . . . . . $(233) $ (97)
See notes to consolidated condensed financial statements.
<PAGE>
MONTGOMERY WARD HOLDING CORP.
CONSOLIDATED STATEMENT OF CASH FLOWS
(Millions of dollars)
For the 39-Week
Period Ended
October 1, October 2,
1994 1993
Cash flows from financing activities:
Proceeds from short-term
borrowings . . . . . . . . . . . . . . $6,255 $ 5,346
Payments of short-term
borrowings . . . . . . . . . . . . . .(5,693) (5,020)
Proceeds from issuance of
long-term debt . . . . . . . . . . . . 166 100
Payments of Montgomery Ward
long-term debt . . . . . . . . . . . . (172) (7)
Payments of Lechmere long-term debt . . (88) -
Payments of obligations under
capital leases . . . . . . . . . . . . (6) (5)
Cash dividends paid . . . . . . . . . . (24) (23)
Proceeds from issuance of
Common Stock . . . . . . . . . . . . . 2 -
Proceeds from issuance of
Preferred Stock. . . . . . . . . . . . 75 -
Purchase of treasury stock,
at cost. . . . . . . . . . . . . . . . (5) (6)
Net cash provided by
financing activities. . . . . . . . 510 385
Decrease in cash and cash
equivalents . . . . . . . . . . . . . . (61) (56)
Cash and cash equivalents at
beginning of period . . . . . . . . . . 98 81
Cash and cash equivalents at
end of period . . . . . . . . . . . . . $ 37 $ 25
Supplemental disclosure of cash flow
information:
Cash paid during the period for:
Income taxes . . . . . . . . . . . . $ 25 $ 42
Interest . . . . . . . . . . . . . . $ 40 $ 46
Non-cash financing activity:
Notes issued for purchase of
Treasury Stock . . . . . . . . . . . . $ 3 $ -
Non-cash investing activity:
Change in unrealized gain on
marketable securities. . . . . . . . . $ 2 $ -
Like-kind exchange of assets. . . . . . $ 4 $ -
See notes to consolidated condensed financial statements.
<PAGE>
MONTGOMERY WARD HOLDING CORP.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Millions of dollars, except per share amounts)
1. Condensed Financial Statements
Montgomery Ward Holding Corp. (the Company or MW Holding)
conducts its operations through its only direct subsidiary,
Montgomery Ward & Co., Incorporated (Montgomery Ward). In the
opinion of management, the unaudited financial statements of the
Company include all adjustments necessary for a fair presentation.
All such adjustments are of a normal recurring nature. The
condensed financial statements should be read in the context of the
financial statements and notes thereto filed with the Securities
and Exchange Commission in MW Holding's 1993 Annual Report on Form
10-K. Certain prior period amounts have been reclassified to be
comparable with the current period presentation.
Effective January 2, 1994, the Company adopted Statement of
Financial Accounting Standards No. 115, "Accounting for Certain
Investments in Debt and Equity Securities" (FAS No. 115). Under
FAS No. 115, all debt securities are classified as "available-for-
sale" and are stated at fair market value with all changes in
unrealized gains or losses included in Shareholder's Equity. The
adoption of FAS No. 115 increased Investments of insurance
operations by $17, Deferred income taxes by $6 and Unrealized gain
on marketable securities by $11 as of January 2, 1994 and had no
impact on the results of operations of the Company.
2. Net Income Per Common Share
Net income per common share is computed as follows:
13-Week Period Ended
October 1, 1994
Class A Class B
Earnings applicable to
Common Shareholders after
deducting preferred stock
dividend requirements. . . . . . . $ 7 $ 7
Weighted average number of common
and common equivalent shares
(stock options) outstanding. . . . 21,309,266 25,000,000
Earnings per share. . . . . . . . . $ .33 $ .29
13-Week Period Ended
October 2, 1993
Class A Class B
Earnings applicable to Common
Shareholders . . . . . . . . . . . $ 7 $ 7
Weighted average number of common
and common equivalent shares
(stock options) outstanding. . . . 21,617,783 25,000,000
Earnings per share. . . . . . . . . $ .33 $ .29
<PAGE>
MONTGOMERY WARD HOLDING CORP.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Millions of dollars, except per share amounts)
2. Net Income Per Common Share (continued)
Net income per common share is computed as follows:
39-Week Period Ended
October 1, 1994
Class A Class B
Earnings applicable to Common
Shareholders after deducting
preferred stock dividend
requirements . . . . . . . . . . . $25 $26
Weighted average number of common
and common equivalent shares
(stock options) outstanding. . . . 21,459,648 25,000,000
Earnings per share. . . . . . . . . $1.18 $1.02
39-Week Period Ended
October 2, 1993
Class A Class B
Earnings applicable to
Common Shareholders. . . . . . . . $25 $26
Weighted average number of common
and common equivalent shares
(stock options) outstanding. . . . 21,945,869 25,000,000
Earnings per share. . . . . . . . . $1.16 $1.03
<PAGE>
MONTGOMERY WARD HOLDING CORP.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Millions of dollars)
3. Debt Agreements
Montgomery Ward entered into a Long Term Credit Agreement (Long
Term Agreement) dated as of September 15, 1994 with various
lenders. The Long Term Agreement, which expires on September 15,
1999, provides for a revolving facility in the principal amount of
$603. Montgomery Ward also entered into a Short Term Credit
Agreement (Short Term Agreement) dated as of September 15, 1994
with various lenders. The Short Term Agreement, which expires on
September 14, 1995, provides for a revolving facility in the
principal amount of $297. On September 15, 1994 all borrowings
outstanding under the Amended and Restated Credit Agreement, the
Short Term Credit Agreement and the Term Loan Agreement were repaid
and the agreements were terminated.
The Long Term Agreement, the Short Term Agreement (collectively,
the Agreements) and the Note Purchase Agreements impose various
restrictions on Montgomery Ward, including the satisfaction of
certain financial tests which include restrictions on payments of
dividends. Under the terms of the Long Term Agreement and the
Short Term Agreement which are currently the most restrictive of
the financing agreements as to dividends, distributions and
redemptions, Montgomery Ward may not pay dividends or make any
other distributions to the Company or redeem any common stock of
Montgomery Ward in excess of (1) $63 on a cumulative basis, plus
(2) 50% of Consolidated Net Income of Montgomery Ward (as defined
in the Agreements) after January 1, 1994, plus (3) any repayment of
any loan or advance to the Company received after January 1, 1994,
plus (4) capital contributions received by Montgomery Ward after
January 1, 1994, plus (5) net proceeds received by Montgomery Ward
from (a) the issuance of capital stock including treasury stock but
excluding Debt-Like Preferred Stock (as defined in the Agreements),
or (b) any indebtedness which is converted into shares of capital
stock other than Debt-Like Preferred Stock of Montgomery Ward or
the Company, after January 1, 1994, plus (6) an adjustment of $45
for 1994 through 1996, $30 in 1997 and $15 in 1998. The Montgomery
Ward Preferred discussed in Note 5 constitutes Debt-Like Preferred
Stock for purposes of dividend restrictions under the Agreements.
To date, Montgomery Ward has been in compliance with all such
financial tests.
<PAGE>
MONTGOMERY WARD HOLDING CORP.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Millions of dollars)
4. Acquisition of Lechmere, Inc.
Montgomery Ward acquired in a merger transaction all the stock
of LMR Acquisition Corporation (LMR) which owns 100% of the stock
of Lechmere, Inc. (Lechmere) on March 30, 1994. The aggregate
purchase price was comprised of an estimated price of $113 and a
contingent purchase price payable in 1995 of up to $20 in cash and
the issuance of up to 400,000 shares of Class A Common Stock,
Series 1 (or at the option of Montgomery Ward, up to 400,000 shares
of Class A Common Stock, Series 3). The exact amount, if any, of
the contingent price to be paid is dependent on Lechmere achieving
or exceeding a specified gross margin amount during the period
commencing February 27, 1994 and ending February 25, 1995.
The closing price included a $10 promissory note (the Note) of
Montgomery Ward, which bears interest at a rate of 4.87% per annum.
Seventy-five percent of the accrued interest on and principal of
the Note are payable 540 days after the date of the Note and the
balance is payable three years after the date of the Note. The
Note, which is secured by a standby letter of credit, is to be
reduced upon the occurrence of certain specified circumstances.
As part of the closing, Montgomery Ward advanced approximately
$88 and assumed $3 in obligations to enable Lechmere to retire its
outstanding bank debt and subordinated debt.
The acquisition was accounted for as a purchase. The purchase
price has been allocated to Lechmere's net assets based upon
preliminary results of asset valuations and liability and
contingency assessments. Actual adjustments may differ based on
the results of further evaluations of the fair value of the
acquired assets and liabilities. Any differences between
preliminary and actual adjustments are not expected to have a
material impact on the consolidated financial statements.
The preliminary allocation is summarized as follows:
Inventory. . . . . . . . . . . . . . . . . . . $140
Properties, Plants & Equipment . . . . . . . . 60
Goodwill . . . . . . . . . . . . . . . . . . . 119
Other Assets . . . . . . . . . . . . . . . . . 21
Due to Montgomery Ward . . . . . . . . . . . . (88)
Accounts Payable and Other Liabilities . . . . (139)
$113
<PAGE>
MONTGOMERY WARD HOLDING CORP.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Millions of dollars, except per share amounts)
5. Senior Preferred Stock
On April 27, 1994, the Company issued 750 shares of a new series
of Senior Preferred Stock (Senior Preferred Stock) to GE Capital in
exchange for $75 in cash. The Company used the proceeds to acquire
750 shares of a new issue of Senior Preferred Stock of Montgomery
Ward (Montgomery Ward Preferred) for $75 and Montgomery Ward used
the proceeds to reduce short-term borrowings.
Holders of the Senior Preferred Stock are entitled to receive
cumulative cash dividends of $4,850 per share, per annum, in equal
quarterly payments.
The Company may, upon 10 days notice, redeem the Senior
Preferred Stock at a price of $100,000 per share. On or after
April 28, 1999, upon four months written notice by the holders, the
Company is required to redeem the Senior Preferred Stock at a price
of $100,000 per share.
6. Common Stock
At the Company's annual meeting of stockholders on May 20, 1994,
the stockholders of the Company approved an amendment to the
Company's Certificate of Incorporation authorizing the issuance of
400,000 shares of Class A Common Stock, Series 3, $.01 par value.
None of the Series 3 Stock is presently issued or outstanding.
Subsequent to quarter end, the shareholders granted approval for
the authorization of an additional 2,000,000 shares of Class A
Common Stock, Series 3. The shareholders also approved an
amendment to the Montgomery Ward & Co., Incorporated Stock
Ownership Plan (the Plan) to increase the number of Class A shares
allocated to the Plan to include the 2,000,000 Series 3 shares.
7. Benefits and Losses
Included with operating, selling, general and administrative
expenses are the following benefits and losses related to direct
response marketing operations:
13-Week Period Ended 39-Week Period Ended
October 1, October 2, October 1, October 2,
1994 1993 1994 1993
$26 $24 $78 $70
<PAGE>
MONTGOMERY WARD HOLDING CORP.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Millions of dollars)
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations (continued)
The following discussion and analysis of results of operations
for MW Holding compares the third quarter of 1994 to the third
quarter of 1993, as well as the first nine months of 1994 to the
first nine months of 1993. All dollar amounts referred to in this
discussion are in millions, and all income and expense items are
shown before income taxes, unless specifically stated otherwise.
MW Holding's business is seasonal, with one-third of the sales
traditionally occurring in the fourth quarter; accordingly, the
results of operations for the quarter and the first nine months are
not necessarily indicative of the results for the entire year.
Results of Operations
Third Quarter 1994 Compared with Third Quarter 1993
Consolidated net income increased $1, or 7% from the prior year.
Consolidated net income applicable to common shareholders for the
third quarter of 1994 was $14, which was even with the prior year.
Consolidated total revenues (net sales and direct response
marketing revenues, including insurance) were $1,693 compared with
$1,429 in 1993. Net sales increased $247, or 19% of which $193 was
attributable to Lechmere, which was acquired on March 30, 1994.
Apparel reported sales increases of 4% and Hardlines sales
increased 5% over the third quarter of 1993. Sales on a comparable
store basis, which reflects only the stores in operation for both
the third quarter of 1994 and 1993, increased 3%. Montgomery Ward
opened three "Electric Avenue & More" stores at the end of the
third quarter. This new specialty power format combines
appliances/electronics (Electric Avenue), furniture (Rooms & More)
and fine jewelry (Gold 'N Gems). The stores, which include an
expanded assortment, contain Montgomery Ward's and Lechmere's most
successful merchandise categories in a format designed for mid-
sized markets.
Direct response marketing revenues increased $17, or 17%, to
$119. The increase was primarily due to increased club membership
levels.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations (continued)
Results of Operations (continued)
Third Quarter 1994 Compared with Third Quarter 1993 (continued)
Gross margin (net sales less cost of goods sold) dollars,
including Lechmere, were $340, an increase of $22, or 7%, from the
third quarter of last year. This increase was due to the gross
margin impact of the increased sales ($71), partially offset by the
decrease in the margin rate on sales ($36) and increased occupancy
costs ($13) related to new store openings. The decrease in the
margin rate was impacted by the lower margin rates of Lechmere
(which has a heavier emphasis in appliances and electronics and the
lower margin rates that accompany these businesses) and continued
competitive pressures.
Operating, selling, general and administrative expenses
increased $37, or 10%, from the prior year. Excluding Lechmere's
expenses, operating, selling, general and administrative expenses
increased by $5. The increase was due to the impact of new
store openings of $11, increased benefits and losses of direct
response operations of $2, and increased operating and other
administrative expenses of $1, partially offset by decreased store
payroll costs of $9.
Net interest expense increased $3, or 23%, from the prior year
primarily due to increased borrowings under the Term Loan
Agreement. Borrowings under the Term Loan Agreement were made in
the first quarter of 1994 in connection with the acquisition of
Lechmere.
Income tax expense of $8 decreased $2, or 20% from 1993. A
charge of $2 for the impact of the retroactive increase in the
Federal income tax rate from 34% to 35% on the first nine months of
1993 is reflected in the 1993 third quarter results.
First Nine Months of 1994 Compared with First Nine Months of 1993
Consolidated net income increased $2, or 4% from the prior year.
Consolidated net income applicable to common shareholders for the
first nine months of 1994 was $51, which was even with the prior
year.
Consolidated total revenues were $4,649 compared with $4,068 in
1993. Net sales increased $540, or 14% of which $374 was
attributable to Lechmere, which was acquired on March 30, 1994.
Sales on a comparable store basis, which reflects only the stores
in operation for both the first nine months of 1994 and 1993,
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations (continued)
Results of Operations (continued)
First Nine Months of 1994 Compared with First Nine Months of 1993
(continued)
increased 3%. Direct response marketing revenues increased $41, or
14%, to $339. The increase was primarily due to increased club
membership levels.
Gross margin dollars, including Lechmere, were $963, an increase
of $38, or 4%, from the first nine months of last year. This
increase was due to the gross margin impact of the increased sales
($160), partially offset by the decrease in the margin rate on
sales ($86), increased occupancy costs primarily as a result of new
store openings ($28), and increased buying office and other
expenses ($8). The decrease in the margin rate was impacted by the
lower margin rates of Lechmere (which has a heavier emphasis in
appliances and electronics and the lower margin rates that
accompany these businesses) and continued competitive pressures.
Operating, selling, general and administrative expenses
increased $75, or 7%, from the prior year. Excluding Lechmere,
operating, selling, general and administrative expenses increased
$8. This increase was attributable to the impact of new store
openings of $29, increased benefits and losses of direct response
operations of $8 and increased other administrative and operating
costs of $2, partially offset by decreased store payroll costs of
$19 and decreased advertising and other promotional costs of $12.
Net interest expense increased $7, or 21% from the prior year
due to borrowings under the Term Loan Agreement. Borrowings under
the Term Loan Agreement were made in connection with the
acquisition of Lechmere and were outstanding through September 15,
1994.
Income taxes decreased $5 due to favorable tax adjustments of $3
reported in the second quarter of 1994, as well as a 1993 third
quarter charge of $2 for the retroactive increase in the Federal
income tax rate.
Discussion of Financial Condition
Montgomery Ward is the only direct subsidiary of MW Holding and
therefore Montgomery Ward and its subsidiaries are MW Holding's
sole source of funds.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations (continued)
Results of Operations (continued)
Discussion of Financial Condition (continued)
During the first quarter of 1994, Montgomery Ward borrowed the
entire $165 available under a Term Loan Agreement dated as of
November 24, 1993 with various banks (Term Loan Agreement). This
loan was used to partially finance the acquisition of Lechmere as
discussed below.
Montgomery Ward entered into a Long Term Credit Agreement (Long
Term Agreement) dated as of September 15, 1994 with various
lenders. The Long Term Agreement, which expires on September 15,
1999, provides for a revolving facility in the principal amount of
$603. As of October 1, 1994, $397 was outstanding under the Long
Term Agreement. Montgomery Ward also entered into a Short Term
Credit Agreement (Short Term Agreement) dated as of September 15,
1994 with various lenders. The Short Term Agreement, which expires
on September 14, 1995, provides for a revolving facility in the
principal amount of $297. As of October 1, 1994, $165 was
outstanding under the Short Term Agreement.
Proceeds from borrowings under the Long Term Agreement and the
Short Term Agreement (collectively, the Agreements) were used to
pay all borrowings outstanding under the Amended and Restated
Credit Agreement, the Short Term Credit Agreement and the Term Loan
Agreement and the agreements were terminated.
Under the Agreements, Montgomery Ward may select among several
interest options, including a rate negotiated with one or more of
the various lenders. A commitment fee is payable based upon the
unused amount of the facility, although in the case of any
negotiated rate loan, an additional fee may be payable to the
lenders not participating in the negotiated rate loan.
Subsequent to quarter end, Montgomery Ward entered into interest
rate exchange and cap agreements with various banks to offset the
market risk associated with an increase in interest rates under
both the Long Term Agreement and Short Term Agreement. The
aggregate notional principal amounts under the interest rate
exchange agreements is $100 in 1994, $175 in 1995 through 1997 and
$75 in 1998 through 1999. Under the terms of the interest rate
exchange agreements, Montgomery Ward pays the banks a weighted
average fixed rate of 7.2% in 1994, 7.4% from 1995 through 1997 and
7.6% from 1998 through 1999 and will receive the one-month daily
average London Interbank Offered (LIBO) rate in each case
multiplied by the notional principal amount. The average aggregate
notional principal amounts under the various cap agreements is $63
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations (continued)
Results of Operations (continued)
Discussion of Financial Condition (continued)
in the fourth quarter of 1994, $154 in 1995, $158 in 1996 and $113
in 1997. Under the terms of the cap agreements, Montgomery Ward
receives payments from the banks when the one-month daily average
LIBO rate exceeds the 5.0% cap strike in 1994, 5.5% cap strike rate
in 1995, 6% cap strike rate in 1996 and 7.0% cap strike rate in
1997. Such payments will equal the amount determined by
multiplying the notional principal amount by the percentage, if
any, by which the one-month daily average LIBO rate exceeds the cap
strike rate. Montgomery Ward is exposed to credit risk in the
event of nonperformance by the other parties to the interest rate
exchange and cap agreements; however, Montgomery Ward anticipates
full performance by the counterparties.
The Agreements and the Note Purchase Agreements impose various
restrictions on Montgomery Ward, including the satisfaction of
certain financial tests which include restrictions on payments of
dividends. Under the terms of the Agreements, which are currently
the most restrictive of the financing agreements as to dividends,
distributions and redemptions, Montgomery Ward may not pay
dividends or make any other distributions to the Company or redeem
any common stock of Montgomery Ward in excess of (1) $63 on a
cumulative basis, plus (2) 50% of Consolidated Net Income of
Montgomery Ward (as defined in the Agreements) after January 1,
1994, plus (3) any repayment of any loan or advance to the Company
received after January 1, 1994, plus (4) capital contributions
received by Montgomery Ward after January 1, 1994, plus (5) net
proceeds received by Montgomery Ward from (a) the issuance of
capital stock including treasury stock but excluding Debt-Like
Preferred Stock (as defined in the Agreements), or (b) any
indebtedness which is converted into shares of capital stock other
than Debt-Like Preferred Stock, after January 1, 1994, plus (6) an
adjustment of $45 for 1994 through 1996, $30 in 1997 and $15 in
1998. The Montgomery Ward Preferred discussed below constitutes
Debt-Like Preferred Stock for purposes of the dividend restrictions
under the Agreements.
On April 27, 1994, the Company issued 750 shares of a new series
of Senior Preferred Stock (Senior Preferred Stock) to GE Capital in
exchange for $75 in cash. The Company used the proceeds to acquire
750 shares of a new issue of Senior Preferred Stock of Montgomery
Ward (Montgomery Ward Preferred) for $75 and Montgomery Ward used
the proceeds to reduce short-term borrowings.
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations (continued)
Results of Operations (continued)
Discussion of Financial Condition (continued)
Montgomery Ward acquired in a merger transaction all the stock
of LMR Acquisition Corporation (LMR) which owns 100% of the stock
of Lechmere, Inc. (Lechmere) on March 30, 1994. The aggregate
purchase price was comprised of an estimated price of $113 and a
contingent purchase price payable in 1995 of up to $20 in cash and
the issuance of up to 400,000 shares of Class A Common Stock,
Series 1 (or at the option of Montgomery Ward, up to 400,000 shares
of Class A Common Stock, Series 3). The exact amount, if any, of
the contingent price to be paid is dependent on Lechmere achieving
or exceeding a specified gross margin amount during the period
commencing February 27, 1994 and ending February 25, 1995.
The closing price included a $10 promissory note (the Note) of
Montgomery ward, which bears interest at a rate of 4.87% per annum.
Seventy-five percent of the accrued interest on and principal of
the Note are payable 540 days after the date of the Note and the
balance is payable three years after the date of the Note. The
Note, which is secured by a standby letter of credit, is to be
reduced upon the occurrence of certain specified circumstances.
As part of the closing, Montgomery Ward advanced approximately
$88 and assumed $3 of obligations to enable Lechmere to retire its
outstanding bank debt and subordinated debt. The purchase of and
advances to Lechmere were financed by the proceeds from borrowings
under the Agreements.
Future cash needs are expected to be provided by ongoing
operations, the sale of customer receivables to Montgomery Ward
Credit Corporation, a subsidiary of GE Capital (Montgomery Ward
Credit), pursuant to the Account Purchase Agreement with Montgomery
Ward Credit, borrowings under the Long Term Agreement and the Short
Term Agreement and the disposition of capital assets related to
facility closings.
Capital expenditures during the first nine months of 1994 of
$114 were primarily related to expenditures for opening three
Electric Avenue & More stores, one full line store, one retail
outlet store and various merchandise fixture and presentation
programs. Capital expenditures for the comparable 1993 period were
$93.
The Board of Directors declared a cash dividend of fifty cents
per common share for a total of $22 on May 20, 1994 to shareholders
of record on June 15, 1994. This dividend was paid on June 23,
1994.
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
None.
Item 2. Changes in Securities.
On October 25, 1994, a Certificate of Amendment to the
Company's Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware. The Certificate of
Amendment, among other things, increased the number of shares of
Class A Common Stock, Series 3, of the Company authorized for
issuance from 400,000 to 2,400,000. All 2,000,000 of such newly-
authorized shares have been reserved for issuance under the
Montgomery Ward & Co., Incorporated Stock Ownership Plan. As of
the date hereof, no shares of Class A Common Stock, Series 3, have
been issued and no such shares are outstanding. The Certificate
of Amendment did not in any way amend the rights of any class or
series of the Company's common stock as set forth in the
Certificate of Incorporation.
Item 3. Defaults Upon Senior Securities.
None.
Item 4. Submission of Matters to a Vote of Security Holders.
Pursuant to a Proxy Statement dated October 17, 1994, the
stockholders of the Company were asked to execute consents in lieu
of a special meeting of the stockholders of the Company. All of
the stockholders of record of the Company executed and returned
the consents before October 20, 1994. Pursuant to the consent,
the stockholders (i) approved the Certificate of Amendment to the
Certificate of Incorporation of the Company, which is described
in Item 2 above; and (ii) approved an amendment to the Montgomery
Ward & Co., Incorporated Stock Ownership Plan (the "Plan")
reserving the 2,000,000 newly authorized shares of Class A Common
Stock, Series 3, of the Company, for issuance under the Plan.
Item 5. Other Information.
None.
<PAGE>
PART II - OTHER INFORMATION (continued)
Item 6. Exhibits and Reports on Form 8-K.
3.2(iv) Certificate of Amendment to Certificate of
Incorporation of Montgomery Ward Holding
Corp. dated October 25, 1994.
3.3(i) Amendment No. 1 to Restated By-laws of
Montgomery Ward Holding Corp. dated September
21, 1994.
9.(i) Voting Trust Agreement dated as of October
21, 1994.
10.(iv)(A)(1)(a) Amendment No. 14 to Stockholders' Agreement
dated September 22, 1994.
10.(i)(G) Long Term Credit Agreement dated as of
September 15, 1994 among Montgomery Ward &
Co., Incorporated, various banks, The First
National Bank of Chicago, as Documentary
Agent, The Bank of Nova Scotia, as
Administrative Agent, The Bank of New York,
as Negotiated Loan Agent and Bank of America
National Trust and Savings Association, as
Advisory Agent.
10.(i)(H) Short Term Credit Agreement dated as of
September 15, 1994 among Montgomery Ward &
Co., Incorporated, various banks, The First
National Bank of Chicago, as Documentary
Agent, The Bank of Nova Scotia, as
Administrative Agent, The Bank of New York,
as Negotiated Loan Agent and Bank of America
National Trust and Savings Association, as
Advisory Agent.
10.(iv)(A)(iii) Amendment No. 1 to the Amended and Restated
Montgomery Ward & Co. Stock Ownership Plan
dated October 20, 1994.
10.(iv)(A)(5) Amendment No. 10 to Montgomery Ward & Co.,
Incorporated Stock Ownership Plan Terms and
Conditions dated September 22, 1994.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
REGISTRANT MONTGOMERY WARD HOLDING CORP.
BY JOHN L. WORKMAN
NAME AND TITLE John L. Workman, Executive Vice President,
Chief Financial Officer and Assistant Secretary
DATE November 15, 1994
<PAGE>
EXHIBIT INDEX
EXHIBIT SUBMISSION MEDIA
- ------- ----------------
3.2(iv) Certificate of Amend-
ment to Certificate of
Incorporation of
Montgomery Ward
Holding Corp. dated
October 25, 1994.
3.3(i) Amendment No. 1 to
Restated By-laws of
Montgomery Ward
Holding Corp. dated
September 21, 1994.
9.(i) Voting Trust Agreement
dated as of October 21,
1994.
10.(iv)(A)(1)(a) Amendment No. 14 to
Stockholders' Agreement
dated September 22,
1994.
10.(i)(G) Long Term Credit
Agreement dated as of
September 15, 1994
among Montgomery Ward
& Co., Incorporated,
various banks, The
First National Bank
of Chicago, as
Documentary Agent,
The Bank of Nova Scotia,
as Administrative Agent,
The Bank of New York,
as Negotiated Loan
Agent and Bank of
America National Trust
and Savings Association,
as Advisory Agent.
<PAGE>
EXHIBIT INDEX
EXHIBIT SUBMISSION MEDIA
- ------- ----------------
10.(i)(H) Short Term Credit
Agreement dated as of
September 15, 1994
among Montgomery Ward
& Co., Incorporated,
various banks, The
First National Bank
of Chicago, as
Documentary Agent,
The Bank of Nova Scotia,
as Administrative Agent,
The Bank of New York,
as Negotiated Loan
Agent and Bank of
America National Trust
and Savings Association,
as Advisory Agent.
10.(iv)(A)(iii) Amendment No. 1 to the
Amended and Restated
Montgomery Ward &
Co. Stock Ownership
Plan dated October 20,
1994.
10.(iv)(A)(5) Amendment No. 10 to the
Montgomery Ward & Co.,
Incorporated Stock Owner-
ship Plan Terms and
Conditions dated
September 22, 1994.
EXHIBIT 3.2(iv)
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION OF
MONTGOMERY WARD HOLDING CORP.
MONTGOMERY WARD HOLDING CORP., a corporation organized
and existing under and by virtue of the General Corporation Law of
the State of Delaware (the "Corporation"), does hereby certify as
follows:
1. The original Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of
Delaware on February 8, 1988 and recorded in the office of the
Recorder of Kent County, Delaware. The name under which the
Corporation was originally incorporated is BFB Acquisition Corp.
2. A Certificate of Correction of Certificate of
Incorporation of the Corporation was filed in the Office of the
Secretary of State of Delaware on February 9, 1988.
3. The original Restated Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of
Delaware on June 17, 1988 and amendments thereto were filed on each
of June 20, 1988; June 24, 1988; January 30, 1990; and March 20,
1992.
4. The Second Restated Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of
Delaware on June 25, 19992 and an amendment thereto was filed on
April 27, 1994.
5. The Third Restated Certificate of Incorporation of the
Corporation was filed in the Office of the Secretary of State of
Delaware on June 28, 1994.
6. The Board of Directors of the Corporation, at a meeting
duly called and held, authorized, adopted and approved resolutions
proposing and declaring advisable the First Amendment to the Third
Restated Certificate of Incorporation of the Corporation, setting
forth amendment to Articles SECOND and FOURTH thereof as follows:
<PAGE>
Article SECOND is amended in its entirety to read as follows:
"SECOND: The address of its registered office in
the State of Delaware is 32 Loockerman Square, Suite L-
100, in the City of Dover 19901, County of Kent. The
name of its registered agent at such address is the
Prentice-Hall Corporation System, Inc."
That portion of Article FOURTH which precedes the heading
"PART A. SENIOR PREFERRED STOCK" is amended in its entirety to
read as follows:
"FOURTH: The total number of shares of capital
stock which the Corporation shall have authority to issue
is fifty-seven million eight hundred twelve thousand
seven hundred fifty (57,812,750) consisting of the
following amounts in the following designations:
1. Common Stock. Fifty-seven million eight
hundred twelve thousand (57,812,000) shares of
Common Stock, par value one cent ($0.01) per share
(hereinafter referred to as "Common Stock"), which
shall consist of the following classes:
(a) thirty-two million eight hundred
twelve thousand (32,812,000) shares of Class A
Common Stock (hereinafter referred to as
"Class A Common Stock"), which shall consist
of the following series:
(i) twenty-five million
(25,000,000) shares of Class A Common
Stock, Series 1 (hereinafter referred to
as "Class A Common Stock, Series 1"), and
(ii) five million four hundred
twelve thousand (5,412,000) shares of
Class A Common Stock, Series 2
(hereinafter referred to as "Class A
Common Stock, Series 2"), and
(iii) two million four hundred
thousand (2,400,000) shares of Class A
Common Stock, Series 3 (hereinafter
referred to as "Class A Common Stock,
Series 3"), and
(b) twenty-five million (25,000,000)
shares of Class B Common Stock (hereinafter
referred to as "Class B Common Stock").
<PAGE>
2. Preferred Stock. Seven hundred fifty
(750) shares of Preferred Stock, par value one
dollar ($1.00) per share (hereinafter referred to
as "Preferred Stock" or "Senior Preferred Stock").
Such shares of Common Stock and Preferred Stock may
be issued for such consideration, not less than the par
value thereof, as shall be fixed from time to time by the
Board of Directors, and shares issued for not less than
the consideration so fixed shall be fully paid and non-
assessable.
A statement of the powers, preferences, rights,
qualifications, limitations, restrictions and the
relative, participating, optional and other special
rights in respect of the shares of each class or series
of stock is as follows:"
Section 2(b)(i) of Part B of Article FOURTH is amended in its
entirety to read as follows:
"(i) At such time, if any, as GE Capital and GE
Capital Affiliates shall cease to own, in the aggregate,
beneficially or of record, twenty percent (20%) or more
of the shares of Common Stock which GE Capital and GE
Capital Affiliates purchased in June 1988, (x) if the
number of directorships on the Board of Directors of the
Corporation at such time shall be nine (9), the number of
directors shall be automatically changed to seven (7),
the holders of the Class A Common Stock, voting as a
class, shall be entitled to elect five (5) of such
directors, and the holders of the Class B Common Stock,
voting as a class, shall be entitled to elect two (2) of
such directors, and (y) if the number of directorships on
the Board of Directors of the Corporation at such time
shall be eleven (11), the number of directors shall be
automatically changed to nine (9), the holders of the
Class A Common Stock, voting as a class, shall be
entitled to elect seven (7) of such directors, and the
holders of the Class B Common Stock, voting as a class,
shall be entitled to elect two (2) of such directors;
provided, however, that, in either of the foregoing
cases, as long as the Account Purchase Agreement referred
to in the Stockholders Agreement is in effect and GE
Capital or any GE Capital Affiliate shall own
beneficially or of record any shares of Class B Common
Stock, GE Capital shall have the right to elect one (1)
of the two (2) directors which the holders of the Class
B Common Stock shall be entitled to elect and all other
holders of Class B Common Stock in the aggregate shall be
<PAGE>
entitled to elect the other of the two (2) directors
which the holders of Class B Common Stock shall be
entitled to elect. A vacancy in the directorships to be
elected, respectively, by the holders of the Class A
Common Stock or the Class B Common Stock may be filled
only by the vote or written consent of the holders of
Class A Common Stock or Class B Common Stock, as the case
may be."
7. The Stockholders of the Corporation, by unanimous written
consent, adopted resolutions authorizing, adopting and approving
the aforesaid amendments to Articles SECOND and FOURTH of the third
Restated Certificate of Incorporation of the Corporation.
8. Except to the extent specifically provided to the
contrary in this Certificate of Amendment, the terms, provisions
and conditions of the Certificate of Incorporation of the
Corporation shall remain unamended and in full force and effect.
9. This Certificate of Amendment has been duly adopted in
accordance with the provisions of Section 242 of the General
Corporation law of the State of Delaware.
IN WITNESS WHEREOF, MONTGOMERY WARD HOLDING CORP. has
caused this certificate to be signed by Bernard F. Brennan, its
Chairman of the Board and Chief Executive Officer, and attested by
Spencer H. Heine, its Secretary, this 25th day of October, 1994.
MONTGOMERY WARD HOLDING CORP.
By: /s/ Bernard F. Brennan
Chairman of the Board
and Chief Executive Officer
(CORPORATE SEAL)
By: /s/
Spencer H. Heine
Secretary
EXHIBIT 3.3(i)
AMENDMENT NO. 1 TO RESTATED BY-LAWS OF
MONTGOMERY WARD HOLDING CORP.
This Amendment No. 1 ("Amendment No. 1") to the Restated
By-laws of MONTGOMERY WARD HOLDING CORP., a Delaware corporation
(the "Company"), is consented to and made as of the 21st day of
September, 1994 pursuant to a unanimous consent of the Board of
Directors of the company in lieu of a meeting.
1. Paragraph (a) of Section 1 of Article III of the By-
laws is hereby amended and restated as of the date hereof as set
forth on Exhibit A hereto.
2. This Amendment No. 1 is adopted by the Board of
Directors of the Company as provided in Article IX of the By-laws.
3. Except as amended hereby, the By-laws, as previously
amended, shall remain in full force and effect.
EXHIBIT A
(a) Number of Directors Except as otherwise provided in
the other paragraphs of this Section 1, the total number of
directors which shall be elected by the stockholders shall be
eleven (11), of which six (6) shall be designated by the
"Designator" (defined in Article VIII) and five (5) shall be
designated by "GE Capital" (defined in Article VIII).
EXHIBIT 9.(i)
VOTING TRUST AGREEMENT
This VOTING TRUST AGREEMENT ("Agreement") is entered into as of
October 21, 1994, by and among MONTGOMERY WARD HOLDING CORP., a
Delaware corporation (the "Company"); BERNARD F. BRENNAN, as the
voting trustee (in such capacity and with his successor(s) being
hereinafter referred to as the "Voting Trustee"); ELAINE REYNOLDS,
as the initial stockholder hereunder (the "Initial Stockholder")
and such other persons or entities who become parties hereto upon
their acquisition of shares of Common Stock of the Company
(hereinafter, collectively with the Initial Stockholder, referred
to individually as a "Stockholder" and collectively as the
"Stockholders").
Recitals
A. The Company has issued to the Initial Stockholder one (1)
share of Class A Common Stock, Series 1, and the Company presently
contemplates hereafter issuing shares of Common Stock ("Common
Stock") of the Company to persons or entities who will hereafter
become parties to this Agreement. The shares of Common Stock
issued to Stockholders, including the Share issued to the Initial
Stockholder, will herein sometimes be referred to as the "Shares";
B. The Voting Trustee and the Stockholders deem it necessary and
advisable to deposit the Shares with the Voting Trustee on the
terms and conditions hereinafter set forth in order to assure that
the holders of the Shares vote with a single voice with respect to
all matters submitted to the vote of stockholders of the Company.
Agreements
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter contained, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Filing of Agreement with the Company; Availability for
Inspection by Stockholders. Copies of counterparts of this
Agreement, signed by all the Stockholders and of every agreement
supplemental to this Agreement or amending this Agreement, shall be
filed in the principal office of the Company, which currently is
located at Montgomery Ward Plaza, Chicago, Illinois 60671-0042 and
in the registered office of the Company in the State of Delaware,
and shall be open to the reasonable inspection of any Stockholder
of the Company or beneficiary of the trust under this Agreement.
The "Voting Trust Certificates" (as defined in Section 3) issued as
provided in this Agreement shall be issued, received and held
subject to all of the terms of this Agreement and the respective
<PAGE>
agreements or Notices of Exercise executed by the Stockholders
pursuant to which such Stockholders acquired their Shares and, as
applicable, a certain Stockholders' Agreement dated as of June 17,
1988, as amended from time to time (the "Stockholders' Agreement)
and/or the Montgomery Ward & Co., Incorporated Stock Ownership Plan
Terms and Conditions, as amended from time to time (the "Terms and
Conditions").
2. Transfer of Shares.
(a) Each of the Stockholders is depositing or causing to be
deposited with the Voting Trustee (or with a national bank or other
bank with capital of at least $100,000,000 designated by the Voting
Trustee, from time to time (the "Custodian")) such Stockholder's
Shares by delivery to the Voting Trustee (or Custodian, if any) of
a certificate (or certificates) representing the Shares owned by
such Stockholder, together with appropriate stock powers
transferring such certificate(s) to the Voting Trustee, with any
requisite stock transfer stamps annexed thereto. The Stockholders
and the Voting Trustee (or Custodian, if any) shall take such
action as is necessary to effect the transfer of the Shares to, and
in the name of, the Voting Trustee on the books of the Company,
including the immediate filing of this Agreement with the Secretary
of the Company. The certificate(s) for Shares so transferred and
delivered to the Voting Trustee pursuant to this Agreement shall be
surrendered by the Voting Trustee to the Company or transfer agent,
if any, and cancelled, and a new certificate (or certificates)
therefor shall be issued to and held by the Voting Trustee in the
name of "Bernard F. Brennan, as Voting Trustee". Upon receipt by
the Voting Trustee of the certificate(s) for Shares and upon the
transfer of the Shares into the name of the Voting Trustee, the
Voting Trustee shall hold the Shares, as stockholder of record,
subject to the terms and conditions of this Agreement.
(b) The Voting Trustee may designate a Custodian to act for and
on behalf of the Voting Trustee under this Agreement. If a
Custodian is designated by the Voting Trustee, such person shall be
empowered, at the direction of the Voting Trustee acting in any
manner consistent with this Agreement, to deal with Shares and
Voting Trust Certificates on the Voting Trustee's behalf as if the
Custodian were the Voting Trustee. The Custodian's actions taken
pursuant to this Agreement, in accordance with the Voting Trustee's
instructions consistent with this Agreement, shall be deemed to be
those of the Voting Trustee.
3. Issuance of Voting Trust Certificates. Promptly after the
delivery of Shares by each Stockholder, the Voting Trustee shall
issue or cause to be issued by the Custodian, if any, to each
Stockholder, in exchange for the Shares delivered by him or her
pursuant to this Agreement, a Voting Trust Certificate(s)
<PAGE>
substantially in the form annexed as Exhibit A hereto (the "Voting
Trust Certificate(s)"), representing in the aggregate the number of
Shares delivered by the respective Stockholder. Except as
otherwise provided in this Agreement (including, without
limitation, Section 5), all options, rights of purchase, and other
powers and privileges affecting the Shares represented by the
Voting Trust Certificates (including, without limitation, those
provided for in the Stockholders' Agreement and the Terms and
Conditions) shall attach to the Voting Trust Certificates issued
pursuant to this Agreement which represent the Shares.
4. Authority of Voting Trustee to Vote the Shares, Enter Into
Agreements.
(a) The Voting Trustee shall hold the Shares transferred to him
pursuant to Sections 2, 5 and 12 of this Agreement under the terms
and conditions set forth in this Agreement. As long as any of the
Shares are subject to this Agreement and until the actual delivery
by the Voting Trustee (or Custodian, if any), to the stockholders
beneficially owning such Shares, of stock certificates in exchange
for Voting Trust Certificates, pursuant to Section 11(b) of this
Agreement, the Voting Trustee shall have full power and authority,
and is hereby fully and exclusively empowered and authorized, to
vote in person or by proxy the Shares deposited pursuant to this
Agreement and transferred to him (including any changed or
additional Shares, as provided in Section 5) at all meetings of the
stockholders of the Company or to give written consents in lieu of
voting such Shares in respect of any and all matters on which
Shares are entitled to vote, including without limitation, the
election of directors.
(b) The Voting Trustee's power to vote such Shares and give
consents in respect thereof pursuant to this Agreement shall be
irrevocable. The Voting Trustee shall have the right to waive
notice of any meeting of stockholders of the Company in respect of
such Shares. The Voting Trustee may exercise any power or perform
any act pursuant to this Agreement by an agent or attorney duly
authorized and appointed by him.
(c) The Voting Trustee shall have full power and authority to
execute, deliver and perform the Stockholders Agreement and the
Terms and Conditions and enter into any amendments with respect
thereto without notice to the Stockholders.
(d) Nothing contained in this Agreement shall disqualify the
Voting Trustee or successor trustees from serving as such if the
Voting Trustee does any of the following, nor shall anyone serving
in such capacity be incapacitated from doing any of the following:
(i) dealing or contracting with the Company or any of its
affiliates, either as a vendor, purchaser, or otherwise, nor shall
<PAGE>
any transaction or contract be affected or invalidated by reason of
the fact that the Voting Trustee or any firm or corporation
affiliated with the Voting Trustee is in any way interested in such
transaction or contract; nor shall the Voting Trustee be liable to
account to the Company or to any stockholder thereof for any
profits realized by, from or through any transaction or contract by
reason of the fact that the Voting Trustee or any firm or
corporation affiliated with the Voting Trustee is interested in
such transaction or contract; or (ii) serving the Company or any of
its affiliates as an officer or director, or in any other capacity,
and receiving compensation therefor.
(e) Anything elsewhere in this Agreement to the contrary
notwithstanding, the holders of Voting Trust Certificates, and not
the Voting Trustee, shall have the exclusive right to approve,
waive or consent to the matters referred to in Sections 6.11(d),
6.11(e) and 8.2(a) of the Stockholders Agreement and the matters
referred to in Section 7.2(a) of the Terms and Conditions.
5. Receipt of Additional Stock Certificates.
(a) If the Voting Trustee shall receive any shares of the
Company, any successor or successors of the Company or any entity
which controls, directly or indirectly, the Company or a successor
to the Company, issued by way of dividend, split-up,
recapitalization, reorganization, merger, consolidation, or any
other change or adjustment in respect of the Shares held by him
pursuant to this Agreement, the Voting Trustee (or Custodian, if
any) shall hold the stock certificates representing such additional
or changed shares, to the extent that such shares have voting
rights (including voting rights contingent upon the occurrence of
specified events), subject to the terms of this Agreement and shall
issue, or cause to be issued by the Custodian, if any, Voting Trust
Certificates representing such changed or additional stock
certificates to the respective holders of the then outstanding
Voting Trust Certificates entitled thereto. Any stock certificates
of the Company or any successor or successors of the Company or of
any entity which controls, directly or indirectly, the Company or
any successor to the Company, issued to the Voting Trustee with
respect to the Shares that are subject to this Agreement which do
not have any such voting rights shall be delivered to the
respective registered holders of the then outstanding Voting Trust
Certificates in proportion to the number of Shares respectively
represented by the Voting Trust Certificates.
(b) The term "Shares", as used in this Agreement, shall, without
limiting the generality of anything elsewhere herein contained,
include, in addition to the Shares originally deposited with the
Voting Trustee, all additional shares of the Company or any
successor or successors of the Company or of any entity which
<PAGE>
controls, directly or indirectly, the Company or any successor to
the Company, deposited with the Voting Trustee, pursuant to Section
5(a) or retained by the Voting Trustee pursuant to Section 7. The
term "Company", as used in this Agreement, shall, without limiting
the generality of anything elsewhere herein contained, include, in
addition to Montgomery Ward Holding Corp., any successor or
successors to Montgomery Ward Holding Corp. or any entity which
controls, directly or indirectly, Montgomery Ward Holding Corp. or
any successor to Montgomery Ward Holding Corp.
6. Dividends and Distributions. Except as otherwise provided in
Section 5, if the Company shall pay dividends or any distribution
on or in respect of the Shares, it shall pay the same to the Voting
Trustee, who shall promptly distribute, or cause the distribution
to be made by the Custodian (if any) of, the same among the holders
of record of then outstanding Voting Trust Certificates in
proportion to the number of Shares in respect of which the
dividends are paid or distribution is made, which are respectively
represented by their Voting Trust Certificates.
7. Subscription for Securities of the Company. In case any
shares or other securities of the Company are offered for
subscription to the holders of the Shares, the Voting Trustee (or
Custodian, if any), promptly upon receipt of notice of such offer,
shall mail a copy thereof to each holder of Voting Trust
Certificates. Upon actual receipt (any deemed receipt in
accordance with Section 13 notwithstanding) by the Voting Trustee,
prior to the last day fixed by the Company for subscription and
payment, of a request so to subscribe from such holder accompanied
by the requisite sum of money and appropriate form required to
subscribe for such shares or securities, the Voting Trustee shall
make, or cause to be made, such subscription and payment. If the
shares or other securities so subscribed for are voting securities
(including securities with voting rights contingent upon the
occurrence of specified events) of the Company, the certificates
therefor shall be issued and held by the Voting Trustee (or
Custodian, if any), as stockholder of record, subject to the terms
and conditions of this Agreement and the Voting Trustee shall issue
or cause to be issued by the Custodian, if any, to the subscribing
holder a Voting Trust Certificate in respect thereof. If the
shares or other securities so subscribed for are non-voting
securities of the Company, the certificates therefor shall be
issued to the subscribing holder and the Voting Trustee shall mail
or deliver such certificates or, cause them to be mailed and
delivered by the Custodian, if any, to such holder.
8. No Compensation; Expenses. The Voting Trustee shall serve
without compensation, but shall be entitled to reimbursement as set
forth in this Agreement for expenses and charges which may be
incurred as Voting Trustee, including but not limited to the
<PAGE>
employment of the Custodian, if any, and such agents, attorneys and
counsel as the Voting Trustee may deem necessary and proper for the
carrying out of this Agreement, and all taxes or other governmental
charges paid or incurred as a result of the transfer or issuance of
any Shares or Voting Trust Certificates or in respect of the
ownership of the Shares held as trustee or in respect of any
dividends, distributions or other rights in respect of such stock.
Any such charges or expenses incurred shall be promptly reimbursed
to the Voting Trustee by the Company and the Voting Trustee shall
have a first lien on any and all distributions in respect of the
Shares to secure the Voting Trustee's rights to such
reimbursements.
9. Exculpation; Indemnification of Voting Trustee. The Voting
Trustee shall not be liable by reason of any matter arising out of
or in relation to this Agreement, except for such loss or damage as
the holders of Voting Trust Certificates may suffer by reason of
the Voting Trustee's willful misconduct, and, without limiting the
generality of the foregoing, the Voting Trustee shall not be liable
for any action taken, or omitted to be taken, by him in reliance
upon and in conformity with, the advice of counsel, or by reason of
any error of judgment or mistake of law or other mistake, or for
any act or omission of any agent or attorney, or for any
misconstruction of this Agreement, or for any action of any sort
taken or omitted thereunder or believed by the Voting Trustee to be
in accordance with the provisions and intents hereof or otherwise.
The Voting Trustee shall be indemnified and held harmless by the
Company from and against any and all of the Voting Trustee's
actions pursuant to this Agreement, except for such Voting
Trustee's willful misconduct. The Voting Trustee shall not be
required to give a bond or other security for the faithful
performance of his duties as such and shall be entitled to receive
prompt payments in respect of the indemnification provided by this
Agreement in advance of the final adjudication of any disputes
relating thereto.
10. Successor Voting Trustee.
(a) So long as Bernard F. Brennan shall be a "Management
Shareholder" (as defined in the Stockholders' Agreement), of the
Company, he shall be the Voting Trustee.
(b) For the purposes of this paragraph (b), all references to
ownership of Shares shall include the legal and beneficial
ownership of Shares held in the Voting Trust and a Stockholder
shall be so deemed to own as well all Shares owned by his
"Permitted Transferees" (as defined in the Stockholders' Agreement
and the Terms and Conditions). If any of the following events
occurs with respect to Bernard F. Brennan (each of such events
being herein sometimes referred to as a "Terminating Event"): he
<PAGE>
shall (i) cease to be a Management Shareholder, (ii) die, (iii)
resign as Voting Trustee, or (iv) be adjudicated incompetent, then,
upon the occurrence of such Terminating Event, the Management
Shareholder, who, from time to time, after the occurrence of the
Terminating Event, is both the owner of the largest number of
Shares and an employee of the "Ward Group" (as such term is defined
in the Stockholders' Agreement), shall be the successor Voting
Trustee; provided, however, that after the first anniversary of the
date of such Terminating Event, the successor Voting Trustee shall
consist of a committee comprised of said Management Shareholder and
the two most senior officers, from time to time (other than said
Management Shareholder) of the Ward Group who are also Management
Shareholders. Said committee shall act by the vote of a majority
of its members. So long as Bernard F. Brennan is serving as the
Voting Trustee, he may, at any time or from time to time, rescind,
alter or amend, in whole or in part, any or all of the provisions
of this paragraph by written notice to the Stockholders. Such
rescissions, alterations or amendments shall remain in force until
the termination of this Agreement or for such shorter period or
periods as Bernard F. Brennan shall state in such notice or any
subsequent notice or notices served while he is serving as Voting
Trustee.
(c) The rights, powers, privileges and obligations of the Voting
Trustee acting as such pursuant to this Agreement shall be
possessed by any successor Voting Trustee with the same effect as
though such successor had originally been a party to this
Agreement. The words "Voting Trustee" as used in this Agreement
mean the Voting Trustee or any successor Voting Trustee acting
under this Agreement.
11. Termination.
(a) The Voting Trust created by this Agreement shall be
effective and remain in force until the occurrence of the earliest
of the following events:
(i) the election of the Voting Trustee to terminate this
Agreement by written notice to the holders of Voting Trust
Certificates at any time after the date of this Agreement; or
(ii) if there shall be no Voting Trustee in office, the
failure of a successor Voting Trustee to be designated as provided
in this Agreement or to serve for a period of 120 consecutive days.
(b) Upon the termination of the Voting Trust with respect to any
or all of the Shares (it being understood that a termination with
respect to some Shares shall not terminate the Voting Trust with
respect to other Shares), the Voting Trustee shall in exchange for,
<PAGE>
and upon the surrender of, the Voting Trust Certificates
representing such Shares, deliver or cause to be delivered by the
Custodian, if any, stock certificates to the holder of such Voting
Trust Certificates.
(c) If, in the event of the bankruptcy, receivership,
dissolution or total or partial liquidation of the Company, whether
voluntary or involuntary, the Voting Trustee shall receive any
monies, securities and property to which the respective registered
holders of the then outstanding Voting Trust Certificates shall be
entitled, the Voting Trustee shall distribute or cause the
distribution to be made by the Custodian, if any, of such monies,
securities and property to the respective registered holders of the
then outstanding Voting Trust Certificates in proportion to the
number of Shares respectively represented by their Voting Trust
Certificates, except any voting securities, which shall be retained
by the Voting Trustee and shall become "Shares" hereunder.
(d) The death, disability or incompetency of a holder of a
Voting Trust Certificate during the term of this Agreement shall in
no way affect the validity or enforceability of this Agreement or
the Voting Trust Certificates issued pursuant to this Agreement,
which shall remain in full force and effect.
(e) If the Company shall acquire any Voting Trust Certificates,
the Company may thereupon, at its option, deliver such Voting Trust
Certificates to the Voting Trustee (or Custodian, if any) and shall
receive in exchange the Common Stock or other securities
represented by such Voting Trust Certificates. Upon such exchange
the Voting Trust Certificates so delivered shall be cancelled. Any
Voting Trust Certificates held by the Company shall not be deemed
to be outstanding.
12. Additional Parties. If any person who is not a Stockholder
shall acquire Common Stock of record and desires, or is required as
a condition to such acquisition, to enter into and become a party
to this Agreement, the parties to this Agreement hereby agree that
such person, upon execution of a counterpart to this Agreement,
shall become a party to this Agreement and be deemed to be a
Stockholder for all purposes of this Agreement as if such person
had originally executed this Agreement, and the Voting Trust herein
created shall continue to remain in effect.
13. Notices. All notices, statements, instructions or other
documents required to be given in accordance with this Agreement,
shall be in writing and shall be given either personally or by
mailing the same in a sealed envelope, first-class mail postage
prepaid and either registered or certified, return receipt
requested, addressed to, or sent by telegram, telex, confirmed
<PAGE>
telecopy or similar form of confirmed telecommunication (with a
copy to follow by mail):
If to the Voting Trustee:
Bernard F. Brennan
c/o Montgomery Ward Holding Corp.
Montgomery Ward Plaza
Chicago, Illinois 60671-0042;
if a Custodian has been appointed and is serving, and the holders
of Voting Trust Certificates have been so notified, then a copy is
to be sent to the Custodian at the address provided in such notice;
and if to the holders of the Voting Trust Certificates, at their
respective addresses as shown on the records of the Voting Trustee
(or Custodian, if any) or to such other addresses as a holder or
the Voting Trustee shall designate pursuant to notice in the manner
set forth in this Agreement. Notices sent by mail shall be deemed
served on the second day after being deposited in the mail.
Notices sent by other means in accordance with this Section 13
shall be deemed served upon receipt. Notices to be sent to a
successor Voting Trustee shall be sent to the person and at the
address designated by notice served in the manner herein provided.
14. Entire Agreement. This Agreement constitutes the entire
understanding among the parties to this Agreement with respect to
the subject matter of this Agreement and no modification, amendment
or waiver of any provision of this Agreement shall be valid unless
in writing signed by the Voting Trustee and holders of Voting Trust
Certificates representing the beneficial interest in a majority of
the shares of Class A Common Stock constituting Shares under this
Agreement.
15. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their
respective heirs, executors, administrators and permitted
successors and assigns.
16. Governing Law. Regardless of the place of execution, this
Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware (without regard to Delaware's
conflicts of laws principles). Each Stockholder agrees to submit to
personal jurisdiction and to waive any objection as to venue of
federal courts in the Northern District of Illinois or state courts
in the County of Cook, State of Illinois. Service of process on a
Stockholder or Stockholders in any action arising out of or
relating to this Agreement shall be effective if served upon such
Stockholder or Stockholders by mail in accordance with Section 13.
<PAGE>
17. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
18. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement. In
addition, each Stockholder and the Voting Trustee hereby agree that
in the event any court shall finally hold that any provision hereof
is unenforceable or invalid, such provisions hereof shall not be
rendered void, but shall apply to such extent as the court may
judicially determine or indicate constitutes a valid and
enforceable provision under the circumstances involved.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
THE COMPANY:
MONTGOMERY WARD HOLDING CORP.
By:
Spencer H. Heine, Executive Vice
President,
Secretary and General Counsel
VOTING TRUSTEE:
Bernard F. Brennan
STOCKHOLDER:
Elaine Reynolds
<PAGE>
Exhibit A
Voting Trust Certificate
for Shares of Common Stock,
par value $0.01 per share,
of
MONTGOMERY WARD HOLDING CORP.,
a Delaware corporation
No. of Shares
Certificate No.
Class
Series
THIS IS TO CERTIFY THAT upon the termination of a certain Voting
Trust Agreement, dated October 21, 1994, by and among Montgomery
Ward Holding Corp.; Bernard F. Brennan, as Voting Trustee; and
certain common stockholders of Montgomery Ward Holding Corp.,
pursuant to which agreement this certificate has been issued,
will be entitled to receive certificates, expressed to be fully-
paid and non-assessable, for the number of shares, and of the
class, and of the series, hereinabove specified (the "Shares") and
for the duration of such Voting Trust Agreement, to receive
distributions equal to the cash or property or nonvoting stock
distributions, if any, collected by the Voting Trustee (or
Custodian, if any) upon a like number of the Shares standing in the
name of the Voting Trustee. Prior to the actual delivery of such
certificates, the Voting Trustee (or Custodian, if any), with
respect to any and all of the Shares shall possess and be entitled
to exercise, in the manner and to the extent provided in the
aforesaid Voting Trust Agreement, all of the rights of every kind
of the holder of this certificate, including the right to vote and
take part in, or to consent to any corporate or stockholders'
action, it being expressly stipulated that no right to vote, or
take part in, or to consent to any corporate or stockholders'
action, shall pass by, or under, this certificate.
This certificate is not valid unless signed by the Voting
Trustee or the appointed Custodian. The holder hereof, by accepting
this certificate, manifests his consent that the undersigned Voting
Trustee may treat the registered holder hereof as the true owner
for all purposes, except the delivery of certificates for Shares,
which delivery shall not be made without the surrender hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned, the Voting Trustee, has
caused this certificate to be signed as of the day of
, 19 .
VOTING TRUSTEE:
Bernard F. Brennan
CUSTODIAN:
By:
Title:
The sale, assignment, transfer, pledge, hypothecation or other
encumbrance of this Voting Trust Certificate or the common stock
(or any interest therein) represented hereby is subject to the
restrictions, terms and conditions set forth in the Voting Trust
Agreement described in this Certificate and pursuant to which this
Certificate is issued, to a certain Stockholders' Agreement among
the Company, its shareholders and holders of Voting Trust
Certificates, dated June 17, 1988, as amended from time to time
and/or to the Montgomery Ward & Co., Incorporated Stock Ownership
Plan Terms and Conditions, as amended from time to time. A copy of
said Stockholders' Agreement and a copy of said Terms and
Conditions are on file in the office of the Secretary of the
corporation. No sale, assignment, transfer, pledge, hypothecation
or other encumbrance of this Certificate, or the shares of common
stock represented by this Certificate, may be effected, except
pursuant to the terms of said Stockholders' Agreement or said Terms
and Conditions, as applicable. In addition, this Certificate
and/or the shares of common stock represented by this Certificate,
as the case may be, may not be sold or transferred in the absence
of an effective Registration Statement (for the interest in the
Voting Trust represented by this Certificate or said shares of
common stock represented hereby, as the case may be) under the
Securities Act of 1933 or pursuant to an applicable exemption from
registration. In connection with any proposed sale or transfer of
this Certificate, or the shares of common stock represented hereby,
as the case may be, pursuant to an exemption from registration, the
holder of this Certificate, or shares of common stock represented
by this Certificate, as the case may be, may be required to deliver
to the corporation an opinion of counsel satisfactory to the
corporation, or the corporation may require that it shall have
received an opinion of its counsel, that registration under said
<PAGE>
Act is not required. In addition, the right to vote the shares of
common stock represented by this Certificate is restricted in the
manner provided in said Stockholders' Agreement and in said Terms
and Conditions.
ASSIGNMENT
FOR VALUE RECEIVED, does hereby sell, assign and transfer unto
all of the undersigned's right, title and interest in and to this
Voting Trust Certificate, and does hereby irrevocably constitute
and appoint to be the undersigned's attorney to transfer this
Voting Trust Certificate on the books of the within named Voting
Trustee, with full power of substitution in the premises.
Dated:
Transferor's signature
IN PRESENCE OF
Witness' signature
Print name of witness:
EXHIBIT 10.(iv)(A)(1)(a)
AMENDMENT NO. 14 TO
STOCKHOLDERS' AGREEMENT
This Amendment No. 14 to Stockholders' Agreement
("Amendment No. 14") is consented to and made as of the 22nd day of
September, 1994 by and among MONTGOMERY WARD HOLDING CORP., a
Delaware corporation, (the "Company"), Bernard F. Brennan,
individually and as attorney-in-fact for certain other parties to
a certain Stockholders' Agreement dated as of June 17, 1988, as
heretofore amended and restated (the "Stockholders' Agreement"),
General Electric Capital Corporation, a New York corporation, and
Myron Lieberman, as Trustee of the Brennan 1988 MW Trust.
WHEREAS, as two amendments entitled "Amendment No. 12 to
Stockholders' Agreement" have amended the Stockholders' Agreement,
this amendment is entitled "Amendment No. 14 to Stockholders'
Agreement", notwithstanding the fact that no "Amendment No. 13 to
Stockholders' Agreement" exists; and
WHEREAS, it is desired that the number of directorships
of the Company be increased to eleven;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Section 5.2 of the Stockholders' Agreement is hereby
amended and restated as of the date hereof as set forth on Exhibit
A hereto.
2. This Amendment No. 14 is adopted by the Company with
the consent of the holders of not less than 66 2/3% of the
outstanding Shares of each class, as provided in Section 8.2 of the
Stockholders' Agreement.
3. Except as amended hereby, the Stockholders'
Agreement, as previously amended, shall remain in full force and
effect.
<PAGE>
IN WITNESS WHEREOF, the undersigned hereby consent to and
execute this Amendment No. 14 as of the day and year first above
written.
MONTGOMERY WARD HOLDING CORP. GENERAL ELECTRIC CAPITAL
f/k/a BFB Acquisition Corp. CORPORATION
By: /s/Bernard F. Brennan By:
Bernard F. Brennan, Its:
Chairman and Chief Executive
Officer
/s/Bernard F. Brennan /s/Myron Lieberman
Bernard F. Brennan, Myron Lieberman, as Trustee
individually, and as attorney-in- of the Brennan 1988 MW
fact for the beneficial owners Trust
of all Shares (as defined in the
Stockholders' Agreement) held by
him as Voting Trustee under that
certain Voting Trust Agreement
dated as of June 21, 1988.
<PAGE>
EXHIBIT A
5.2 Election of Directors. Subject to the limitations
set forth herein, and in addition to any provisions relating to the
election of directors by the holders of Preferred Stock which are
contained in the Certificate of Incorporation and By-laws of the
Company, at all times in which this Article V is in effect, the By-
laws of the Company shall provide, and the Shareholders agree to
vote, for the election of a Board of Directors consisting of eleven
members, six to be designated by the Designator and five to be
designated by GE Capital. The By-laws shall further provide, and
the Shareholders agree, that, disregarding any directors which may
be elected by the holders of Preferred Stock pursuant to the
provisions of the Company's Certificate of Incorporation;
(a) Intentionally omitted;
(b) at such time, if any, as GE Capital and the GE
Capital Affiliates shall cease to own, in the aggregate, more
than 50% of the Shares which GE Capital and the GE Capital
Affiliates have purchased in June 1988, the number of members
of the Board of Directors which the Designator shall have the
right to designate shall be increased by one and the number of
members of the Board of Directors which GE Capital shall have
the right to designate shall be reduced by one; and
(c) at such time, if any, as GE Capital and the GE
Capital Affiliates shall cease to own, in the aggregate, 20%
or more of the Shares which GE Capital and the GE Capital
Affiliates have purchased in June 1988, GE Capital shall no
longer have the right to designate members of the Board of
Directors in accordance with the foregoing provisions of this
Section 5.2; and the number of directors to be elected shall
be reduced to nine, seven to be elected by the Class A
Shareholders, voting as a class, and two to be elected by the
Class B Shareholders, voting as a class; provided, however,
that as long as that certain Account Purchase Agreement, dated
as of June 24, 1988, between Ward and Montgomery Ward Credit
Corporation (the "Account Purchase Agreement") shall be in
effect and GE Capital or any GE Capital Affiliate shall own
any Class B Shares, GE Capital shall have the right to elect
one of the two directors to be elected by the Class B
Shareholders.
In the event of a vacancy on the Board of Directors, the party who
had the right to designate the director whose seat is vacant shall
have the right to designate the party who shall fill the vacancy.
The party who had the right to designate a director shall also have
the right to cause that director to be removed.
LONG TERM
CREDIT AGREEMENT
dated as of September 15, 1994
among
MONTGOMERY WARD & CO., INCORPORATED,
VARIOUS BANKS,
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentary Agent,
THE BANK OF NOVA SCOTIA,
as Administrative Agent,
THE BANK OF NEW YORK,
as Negotiated Loan Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Advisory Agent
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1 CERTAIN DEFINITIONS.. . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . 1
1.2 Groups and Types of Loans. . . . . . . . . . . . . . 19
SECTION 2 REVOLVING LOANS . . . . . . . . . . . . . . . . . . 20
2.1 Commitment to Make Revolving Loans . . . . . . . . . 20
2.2 Revolving Loan Limits. . . . . . . . . . . . . . . . 20
2.3 Borrowing Procedure. . . . . . . . . . . . . . . . . 21
2.4 Repayment. . . . . . . . . . . . . . . . . . . . . . 21
2.5 Revolving Notes. . . . . . . . . . . . . . . . . . . 21
2.6 Voluntary Termination or Reduction of the
Commitments. . . . . . . . . . . . . . . . . . . . . 21
2.7 Extension of the Termination Date. . . . . . . . . . 22
SECTION 3 SWING LOANS.. . . . . . . . . . . . . . . . . . . . 23
3.1 Commitment to Make Swing Loans.. . . . . . . . . . . 23
3.2 Swing Loan Limits. . . . . . . . . . . . . . . . . . 23
3.3 Borrowing Procedure. . . . . . . . . . . . . . . . . 24
3.4 Interest and Repayment.. . . . . . . . . . . . . . . 24
3.5 Swing Notes. . . . . . . . . . . . . . . . . . . . . 24
3.6 Participation of Banks . . . . . . . . . . . . . . . 25
SECTION 4 NEGOTIATED LOANS. . . . . . . . . . . . . . . . . . 25
4.1 Negotiated Loan Option . . . . . . . . . . . . . . . 25
4.2 Negotiated Loan Limits . . . . . . . . . . . . . . . 25
4.3 Procedure for Negotiated Loans . . . . . . . . . . . 26
4.4 Interest and Repayment . . . . . . . . . . . . . . . 27
4.5 Negotiated Loan Notes. . . . . . . . . . . . . . . . 27
SECTION 5 TERMINATION OF COMMITMENTS UPON A CHANGE OF
CONTROL. . . . . . . . . . . . . . . 27
SECTION 6 INTEREST AND FEES . . . . . . . . . . . . . . . . . 28
6.1 Interest Rates . . . . . . . . . . . . . . . . . . . 28
6.2 Eurodollar Margin Increment. . . . . . . . . . . . . 28
6.3 Interest Payment Dates . . . . . . . . . . . . . . . 29
6.4 Setting and Notice of Loan Rates . . . . . . . . . . 29
6.5 Commitment Fee . . . . . . . . . . . . . . . . . . . 30
6.6 Displaced Commitment Fee . . . . . . . . . . . . . . 31
6.7 Agents' Fees . . . . . . . . . . . . . . . . . . . . 31
6.8 Computation of Interest and Fees . . . . . . . . . . 31
6.9 Determination of Margin and Fee Increase . . . . . . 31
SECTION 7 REVOLVING LOAN PROCEDURES;
CONVERSIONS AND CONTINUATIONS . . . . . . 32
7.1 Procedure for Revolving Loans. . . . . . . . . . . . 32
7.2 Conversion and Continuation Procedures . . . . . . . 34
SECTION 8 MAKING AND SHARING OF PAYMENTS AND
PREPAYMENTS; SETOFF; TAXES; RECORDKEEPING. 35
8.1 Making of Payments . . . . . . . . . . . . . . . . . 35
8.2 Sharing of Payments. . . . . . . . . . . . . . . . . 36
8.3 Setoff . . . . . . . . . . . . . . . . . . . . . . . 38
8.4 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 38
8.5 Recordkeeping. . . . . . . . . . . . . . . . . . . . 40
SECTION 9 CHANGE OF CIRCUMSTANCES.. . . . . . . . . . . . . . 42
9.1 Reserve and Capital Adequacy Costs . . . . . . . . . 42
9.2 Increased Costs. . . . . . . . . . . . . . . . . . . 44
9.3 Basis for Determining Interest Rate Inadequate or
Unfair . . . . . . . . . . . . . . . . . . . . . . . 45
9.4 Changes in Law Rendering Certain Loans Unlawful. . . 46
9.5 Funding Losses . . . . . . . . . . . . . . . . . . . 46
9.6 Discretion of Banks as to Manner of Funding. . . . . 47
9.7 Conclusiveness of Statements; Survival of
Provisions . . . . . . . . . . . . . . . . . . . . . 47
9.8 Negotiated Loans . . . . . . . . . . . . . . . . . . 47
SECTION 10 REPRESENTATIONS. . . . . . . . . . . . . . . . . . 47
10.1 Organization, etc . . . . . . . . . . . . . . . . . 48
10.2 Authorization; No Conflict. . . . . . . . . . . . . 48
10.3 Validity and Binding Nature . . . . . . . . . . . . 48
10.4 Financial Statements. . . . . . . . . . . . . . . . 48
10.5 Litigation and Contingent Liabilities . . . . . . . 49
10.6 Title to Property . . . . . . . . . . . . . . . . . 49
10.7 Liens . . . . . . . . . . . . . . . . . . . . . . . 49
10.8 Subsidiaries. . . . . . . . . . . . . . . . . . . . 49
10.9 Plans and Welfare Plans . . . . . . . . . . . . . . 49
10.10 Investment Company Act . . . . . . . . . . . . . . 50
10.11 Public Utility Holding Company Act . . . . . . . . 50
10.12 Regulations G, U and X . . . . . . . . . . . . . . 50
10.13 Labor Controversies. . . . . . . . . . . . . . . . 50
10.14 Tax Status . . . . . . . . . . . . . . . . . . . . 50
10.15 No Default . . . . . . . . . . . . . . . . . . . . 51
10.16 Compliance with Applicable Laws. . . . . . . . . . 51
10.17 Licenses, etc. . . . . . . . . . . . . . . . . . . 51
10.18 Purpose. . . . . . . . . . . . . . . . . . . . . . 52
SECTION 11 COVENANTS. . . . . . . . . . . . . . . . . . . . . 52
11.1 Reports, Certificates and Other Information . . . . 52
11.2 Liens . . . . . . . . . . . . . . . . . . . . . . . 54
11.3 Minimum Consolidated Shareholder's Equity . . . . . 58
11.4 Ratio of Debt to Total Capitalization . . . . . . . 58
11.5 Purchase or Redemption of the Company's
Securities; Dividend Restrictions; Payments to the
Parent . . . . . . . . . . . . . . . . . . . . . . . 58
11.6 Mergers, Consolidations, Sales. . . . . . . . . . . 60
11.7 Compliance with Applicable Laws . . . . . . . . . . 62
11.8 ERISA . . . . . . . . . . . . . . . . . . . . . . . 62
11.9 Corporate Existence and Franchises. . . . . . . . . 63
11.10 Maintenance of Tangible Property . . . . . . . . . 63
11.11 Maintenance of Intangible Property . . . . . . . . 63
11.12 Books, Records and Inspections . . . . . . . . . . 63
11.13 Insurance. . . . . . . . . . . . . . . . . . . . . 63
11.14 Payment of Taxes . . . . . . . . . . . . . . . . . 63
11.15 Other Agreements . . . . . . . . . . . . . . . . . 64
11.16 Regulation U . . . . . . . . . . . . . . . . . . . 64
11.17 Subordinated Debt. . . . . . . . . . . . . . . . . 64
11.18 Debt-Like Preferred Stock. . . . . . . . . . . . . 64
11.19 Further Assurances . . . . . . . . . . . . . . . . 65
SECTION 12 CONDITIONS.. . . . . . . . . . . . . . . . . . . . 65
12.1 Effectiveness of Agreement. . . . . . . . . . . . . 65
12.2 Conditions to Loans . . . . . . . . . . . . . . . . 67
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT . . . . . . . . 68
13.1 Events of Default . . . . . . . . . . . . . . . . . 68
13.2 Effect of Event of Default. . . . . . . . . . . . . 71
SECTION 14 THE AGENTS . . . . . . . . . . . . . . . . . . . . 72
14.1 Authorization . . . . . . . . . . . . . . . . . . . 72
14.2 Indemnification . . . . . . . . . . . . . . . . . . 72
14.3 Action on Instructions of the Required Banks. . . . 73
14.4 Payments. . . . . . . . . . . . . . . . . . . . . . 73
14.5 Exculpation . . . . . . . . . . . . . . . . . . . . 75
14.6 Credit Investigation. . . . . . . . . . . . . . . . 75
14.7 Agents and Affiliates . . . . . . . . . . . . . . . 76
14.8 Resignation and Removal . . . . . . . . . . . . . . 76
14.9 Advisory Agent. . . . . . . . . . . . . . . . . . . 77
SECTION 15 GENERAL. . . . . . . . . . . . . . . . . . . . . . 77
15.1 Waiver; Amendments. . . . . . . . . . . . . . . . . 77
15.2 Notices . . . . . . . . . . . . . . . . . . . . . . 78
15.3 Computations. . . . . . . . . . . . . . . . . . . . 79
15.4 Participations; Assignments; Replacement of
Banks. . . . . . . . . . . . . . . . . . . . . . . . 80
15.5 Costs, Expenses and Taxes . . . . . . . . . . . . . 85
15.6 Indemnification . . . . . . . . . . . . . . . . . . 86
15.7 Regulation U. . . . . . . . . . . . . . . . . . . . 86
15.8 Captions. . . . . . . . . . . . . . . . . . . . . . 87
15.9 Governing Law; Severability . . . . . . . . . . . . 87
15.10 Waiver of Jury Trial . . . . . . . . . . . . . . . 87
15.11 Counterparts; Effectiveness. . . . . . . . . . . . 87
15.12 Supersession . . . . . . . . . . . . . . . . . . . 87
15.13 Successors and Assigns . . . . . . . . . . . . . . 87
<PAGE>
SCHEDULES and EXHIBITS
SCHEDULES
SCHEDULE I Banks, Commitments and Termination Dates
(Sections 1.1, 2.7 and 15.4)
SCHEDULE IA Special Commitment Fee (Section 6.5(b))
SCHEDULE II Litigation (Section 10.5)
SCHEDULE III Liens (Section 10.7)
SCHEDULE IV Subsidiaries and Restricted Subsidiaries
(Section 10.8)
SCHEDULE V Post-Retirement Welfare Plan Benefits
(Section 10.9)
SCHEDULE VI Tax Sharing Arrangements (Section 11.5)
SCHEDULE VII Management Investors (Section 1.1)
SCHEDULE VIII Finder's List (Section 1.1)
<PAGE>
EXHIBITS FORM OF
EXHIBIT A Revolving Note (Section 2.5)
EXHIBIT B Extension Request (Section 2.7)
EXHIBIT C Extension Reply (Section 2.7)
EXHIBIT D Swing Note (Section 3.5)
EXHIBIT E Negotiated Note (Section 4.5)
EXHIBIT F Revolving Loan Request (Section 7.1)
EXHIBIT G Swing Loan Request (Section 3.3)
EXHIBIT H Negotiated Loan Confirmation (Section 4.3)
EXHIBIT I Officer's Certificate (Section 11.1(c))
EXHIBIT J Opinion of Counsel for the Company (Section
12.1)
EXHIBIT K Certificate as to Satisfaction of Conditions
(Section 12.1)
EXHIBIT L Assignment and Acceptance (Section 15.4(b))
EXHIBIT M Replacement Agreement (Section 15.4(e))
<PAGE>
LONG TERM CREDIT AGREEMENT
THIS LONG TERM CREDIT AGREEMENT (this "Agreement"),
dated as of September 15, 1994, is among MONTGOMERY WARD & CO.,
INCORPORATED, an Illinois corporation (herein, together with its
successors and permitted assigns, called the "Company"), the
banks listed on the signature pages hereof (herein, together with
their respective successors and assigns, collectively called the
"Banks" and individually called a "Bank"), THE FIRST NATIONAL
BANK OF CHICAGO, as documentary agent for the Banks (herein, in
such capacity, together with its successors and assigns in such
capacity, called the "Documentary Agent"), THE BANK OF NOVA
SCOTIA, as administrative agent for the Banks (herein, in such
capacity, together with its successors and assigns in such
capacity, called the "Administrative Agent"), THE BANK OF NEW
YORK, as negotiated loan agent for the Banks (herein, in such
capacity, together with its successors and assigns in such
capacity, called the "Negotiated Loan Agent"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as advisory agent
for the Banks (herein, in such capacity, together with its
successors and assigns in such capacity, called the "Advisory
Agent") (the Documentary Agent, the Administrative Agent, the
Negotiated Loan Agent and the Advisory Agent are herein
collectively called the "Agents" and individually called an
"Agent").
WHEREAS, the Company wishes to be able to borrow funds
from the Banks from time to time on a revolving basis; and
WHEREAS, subject to the terms and conditions set forth
herein, the Banks are willing to make loans to the Company;
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein contained, the parties hereto agree
as follows:
SECTION 1 CERTAIN DEFINITIONS.
1.1 Definitions. When used herein the following terms
have the following respective meanings (it being understood that
a finder's list is attached as Schedule VIII):
"Adjusted Commitment" - see Section 8.2(a).
"Administrative Agent" - see Preamble.
"Advisory Agent" - see Preamble.
"Affiliate" means with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person. A
Person shall be deemed to control another Person if such first
Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other
Person, whether through ownership of voting securities, by
contract or otherwise.
"Agent(s)" - see Preamble.
"Agent Parties" - see Section 14.2.
"Aggregate Commitment" means $603,000,000 or such
lesser amount as the Company may specify from time to time
pursuant to Section 2.6 or as may be determined pursuant to
Section 2.7.
"Agreement" - see Preamble.
"Applicable Agent" means (i) with respect to matters
involving the Loans (other than the Negotiated Loans), the
Administrative Agent, and (ii) with respect to matters involving
the Negotiated Loans, the Negotiated Loan Agent.
"Assignee(s)" - see Section 15.4(b).
"Assignment" - see Section 15.4(b).
"Authorized Officer" means the President, the Chief
Executive Officer, the Chief Financial Officer, the Treasurer or
any Assistant Treasurer of the Company.
"Bank(s)" - see Preamble.
"Bank Parties" - see Section 15.6.
"Base Rate" means at any time and from time to time the
higher of (i) the rate per annum then most recently publicly
announced or established by the Bank which is acting as the
Administrative Agent as its "reference rate" or "prime rate" (or
such Bank's equivalent thereof) at its Funding Office for Base
Rate Loans, or (ii) the Federal Funds Rate plus 1/2 of 1% per
annum.
"Base Rate Loan" means any Loan (other than a
Negotiated Loan) which bears interest by reference to the Base
Rate.
"Business Day" means (i) any day of the year other than
a Saturday, a Sunday or other day on which banks in Chicago,
Atlanta or New York City are authorized or required by law to
close, and (ii) if the applicable Business Day relates to the
determination of a Eurodollar Rate or to the funding or payment
of a Eurodollar Loan, a day on which dealings are carried on in
the London interbank eurodollar market.
"Capital Base" means at any time the sum of
Subordinated Debt plus Consolidated Shareholder's Equity of the
Company plus the FAS 106 Capital Base Factor, each as at the end
of the Fiscal Year or Fiscal Quarter, as the case may be, ended
on the date as of which "Capital Base" is being determined, less
each of (i) the aggregate amount of all outstanding advances by
the Company to, and investments of the Company in, Non-Restricted
Subsidiaries, (ii) the aggregate value of all treasury stock
carried as an asset by the Company or any Subsidiary the equity
of which is included in the Company's Consolidated Shareholder's
Equity, and (iii) the aggregate amount of all general intangibles
(including, without limitation, goodwill, franchises, licenses,
patents, trademarks, trade names, copyrights, service marks,
brand names and corporate organization expense) of the Company
and its Restricted Subsidiaries; provided, however, that the
following shall not be included as a general intangible of the
Company and its Restricted Subsidiaries for purposes of this
definition: (a) assets under capital leases, (b) prepaid
expenses (including, without limitation, prepaid pension costs
and prepaid royalties) and other costs or expenditures which
under GAAP are capitalized and amortized over the periods to
which such costs or expenditures relate (including, without
limitation, unamortized deferred marketing acquisition costs,
unamortized customer service contract costs and unamortized
system development costs), (c) as of the date of determination,
the unamortized balance of the value at June 23, 1988 of
insurance licenses of the Company's insurance Restricted
Subsidiaries, (d) as of the date of determination, the
unamortized balance of the value at June 23, 1988 of marketing
rights of the Company and its Restricted Subsidiaries, and (e)
all goodwill arising out of the acquisition by the Company of all
the stock of LMR Acquisition Corporation and its wholly-owned
subsidiary, Lechmere, Inc. (including any goodwill on the books
of LMR Acquisition Corporation and Lechmere, Inc. at the time of
such acquisition by the Company) pursuant to the Agreement and
Plan of Merger dated March 17, 1994 by and among the Company, MW
Merger Corp., LMR Acquisition Corporation, Lechmere, Inc. and the
stockholders of LMR Acquisition Corporation who became parties
thereto, as heretofore and hereafter amended, all as determined
(except as set forth in Section 15.3) in accordance with GAAP.
"Capitalized Lease Obligations" means with respect to
any Person any amounts payable by such Person with respect to any
lease of any tangible or intangible property (whether real,
personal or mixed), however denoted, which is required by GAAP to
be reflected as a liability on such Person's balance sheet.
"Change" - see Section 9.1(b).
"Change of Control" means (a) the sale or other
disposition, at any time or times after the Effective Date, to
any Person other than a Qualified Purchaser, of an aggregate of
50% or more of the Outstanding Original Shares or (b) no
Outstanding Original Shares remain outstanding. Anything to the
contrary notwithstanding, at any time of determination no Change
of Control shall be deemed to have occurred because, or as a
result, of any events, facts and/or circumstances if theretofore
either (i) shares of voting common stock of the Parent have been
sold to the public pursuant to a registration statement filed
with the SEC, which registration statement became effective and
the gross proceeds of such offering were at least $100,000,000 or
(ii) the Consolidated Shareholder's Equity of the Company was
equal to or greater than $710,000,000 either (x) at the end of
the then most recently ended Fiscal Quarter or (y) at the end of
not less than any eight consecutive Fiscal Quarters prior
thereto.
"Class A Common Stock" means the issued and outstanding
shares from time to time of Class A Common Stock of the Parent or
the shares of stock into which such shares shall have been
converted or for which such shares were exchanged in connection
with any merger, consolidation or sale of substantially all the
assets of the Company or the Parent.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commitment" means, for each Bank, such Bank's
commitment to make Revolving Loans on the terms and subject to
the conditions of this Agreement, the maximum amount of such
commitment being the amount opposite such Bank's name on
Schedule I as the same may be revised pursuant to Section 2.6 or
2.7; and "Commitments" means, collectively, the commitments of
all of the Banks to make Revolving Loans on the terms and subject
to the conditions of this Agreement.
"Company" - see Preamble.
"Company Register" - see Section 8.5(a).
"Conditional Sale Obligations" means with respect to
any Person any amounts payable by such Person which are required
by GAAP to be reflected as liabilities on such Person's balance
sheet with respect to agreements for the purchase of real
property or other tangible fixed assets on extended deferred
payment terms covering a period of one year or more and under
which a security interest (other than a statutory vendor's lien)
is specifically retained by the seller until the deferred
purchase price is paid in full, but excluding any agreements
under which the asset being acquired is classified as an asset
under a capital lease rather than as an asset which is owned in
accordance with GAAP.
"Consolidated Net Income" means the aggregate of the
net income of the Company and its Subsidiaries, determined
(except as otherwise provided in Section 15.3) on a consolidated
basis in accordance with GAAP.
"Consolidated Shareholder's Equity" has (except as
otherwise provided in Section 15.3) the meaning assigned to such
phrase by GAAP.
"Continue," "Continuation" and "Continued" refer to
continuations of Loans pursuant to Section 7.2.
"Conversion Notice" - see Section 7.2(a).
"Convert", "Conversion" and "Converted" refer to
conversions of Loans pursuant to Section 7.2.
"Corporate Transaction" - see Section 11.6.
"Debt" means as to any Person at any time (i) all of
such Person's Indebtedness for Borrowed Money, plus (ii) all of
such Person's Capitalized Lease Obligations, plus (iii) if such
Person is the Company or a Restricted Subsidiary, without double
counting, the Capitalized Lease Obligations of any Non-Restricted
Subsidiary reflected on the balance sheet of such Non-Restricted
Subsidiary for which the Company or such Restricted Subsidiary is
liable directly or indirectly under a Guaranty, less (iv) all
Subordinated Debt.
"Debt-Like Preferred Stock" means any class of stock of
the Company which by its terms (i) has any of the following
characteristics: (x) it is redeemable at a fixed or determinable
date or dates, whether by operation of a sinking fund or
otherwise, (y) it is redeemable at the option of the holder or
(z) it has conditions for redemption which are not solely within
the control of the issuer, such as stock which must be redeemed
out of future earnings, and (ii) is validly and effectively made
subordinate and junior in right of payment to the Liabilities in
the event of the occurrence and continuance of any Event of
Default.
"Displaced Loans" - see Section 6.6.
"Documentary Agent" - see Preamble.
"Dollar(s)" and the sign "$" mean lawful money of the
United States of America.
"Effective Date" - see Section 12.1.
"Equalization Amount" - see Section 8.4(c).
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and any successor statute of similar
import, together with the regulations thereunder and under the
Code, in each case as in effect from time to time. References to
sections of ERISA shall be deemed also to refer to any successors
to such sections.
"ERISA Affiliate" means any corporation, trade or
business that is, along with the Company, a member of a
controlled group of corporations or a controlled group of trades
or businesses, as described in sections 414(b) and 414(c),
respectively, of the Code or section 4001 of ERISA.
"Eurocurrency Reserve Percentage" means, with respect
to any day, a percentage (expressed as a decimal) equal to the
percentage 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 marginal reserve requirement) applicable to
"Eurocurrency liabilities" pursuant to Regulation D or any other
then applicable regulation of said Board of Governors which
prescribes reserve requirements applicable to "Eurocurrency
liabilities" as presently defined in Regulation D.
"Eurodollar Loan" means any Loan (other than a
Negotiated Loan) which bears interest at a rate determined by
reference to the Eurodollar Rate.
"Eurodollar Margin Increment" - see Section 6.2.
"Eurodollar Rate" means, with respect to any Interest
Period, and subject to Section 6.4(b), the rate per annum equal
to the arithmetic mean (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the respective rates per annum notified to
the Administrative Agent by the Reference Banks (or any thereof)
prior to 9:30 a.m., Chicago time, on the second Business Day
prior to the commencement of such Interest Period as the rate at
which Dollar deposits are offered by the principal London office
of each such Reference Bank to prime banks in the London
interbank eurodollar market as at or about 11:00 a.m., London
time, for delivery for same day value on the first day of such
Interest Period, for the number of days comprised therein and in
an amount approximately equal to the amount of such Reference
Bank's Eurodollar Loan for such Interest Period.
"Eurodollar Rate (Reserve Adjusted)" means, with
respect to any Interest Period, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined
pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage
"Event of Default" means any of the events described in
Section 13.1.
"Existing Credit Agreements" means collectively (i) the
Amended and Restated Credit Agreement, dated September 22, 1992,
as amended, among the Company, various lenders from time to time
party thereto and certain agents listed on the signature pages
thereof, (ii) the Short Term Credit Agreement, dated
September 22, 1992, as amended, among the Company, various
lenders from time to time party thereto and certain agents listed
on the signature pages thereof, and (iii) the Term Loan
Agreement, dated November 24, 1993, among the Company, various
lenders from time to time party thereto and certain agents listed
on the signature pages thereof.
"Existing Termination Date" - see Section 2.7.
"Extension Banks" - see Section 2.7.
"Extension Reply" - see Section 2.7.
"Extension Request" - see Section 2.7.
"FAS 106 Capital Base Factor" means, as at the date of
determination, the dollar amount set forth below opposite the
Fiscal Year in which such date occurs:
Fiscal Year FAS 106 Capital Base Factor
1994 75,000,000
1995 60,000,000
1996 45,000,000
1997 30,000,000
1998 15,000,000
1999 and each 0
Fiscal Year thereafter
"FAS 106 Minimum Equity Factor" means, as at the date
of determination, the dollar amount set forth below opposite the
Fiscal Year in which such date occurs:
Fiscal Year FAS 106 Minimum Equity Factors
1994 67,500,000
1995 60,000,000
1996 45,000,000
1997 30,000,000
1998 15,000,000
1999 and each 0
Fiscal Year thereafter
"FAS 106 Restricted Payment Factor" means, as at the
date of determination, the dollar amount set forth below opposite
the Fiscal Year in which such date occurs:
Fiscal Year FAS 106 Restricted Payment Factors
1994 45,000,000
1995 45,000,000
1996 45,000,000
1997 30,000,000
1998 15,000,000
1999 and each 0
Fiscal Year thereafter
"Federal Funds Rate" means, for any day, the rate set
forth in the weekly statistical release designated as H.15(519),
or any successor publication, published by the Board of Governors
of the Federal Reserve System (including any such successor,
"H.15(519)") for that day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet
published in H.15(519), the rate for that day will be the rate
set forth in the daily statistical release designated as the
Composite 3:30 P.M. Quotations for U.S. Government Securities, or
any successor publication, published by the Federal Reserve Bank
of New York (including any such successor, the "Composite 3:30
P.M. Quotations") for that day under the caption "Federal Funds
Effective Rate". If on any relevant day the appropriate rate for
such day is not yet published in either H.15(519) or the
Composite 3:30 P.M. Quotations, the rate for such day will be the
arithmetic mean of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m., New York
time, on that day by each of three leading brokers of Federal
funds transactions in New York City, selected by the
Administrative Agent.
"Fee Increase" - see Section 6.9.
"Finance Obligation(s)" means with respect to any
Person, as of the date of determination thereof, (i) any and all
of such Person's Indebtedness for Borrowed Money, (ii) any and
all of such Person's actual or contingent reimbursement
obligations with respect to letters of credit issued for such
Person's account, (iii) any and all of such Person's actual or
contingent obligations with respect to interest swap agreements
or currency swap agreements or other hedge agreements relating to
fluctuations in interest rates or currencies, (iv) any and all of
such Person's liabilities under Title IV of ERISA, and (v) any
and all indebtedness or obligations of any of the types described
in the preceding clauses (i), (ii), (iii) and (iv) for which such
Person is liable, directly or indirectly, under a Guaranty.
"Fiscal Quarter" means a fiscal quarter of any Fiscal
Year.
"Fiscal Year" means a fiscal year of the Company which
begins on the Sunday following the Saturday closest to December
31 of any calendar year and ends on the Saturday closest to
December 31 of the next succeeding calendar year.
"Fixed Rate Loan(s)" means any Loan other than (i) a
Base Rate Loan, and (ii) a Negotiated Loan which bears interest
at a fluctuating interest rate.
"Funding Date" means the date on which any Loan is
disbursed or scheduled to be disbursed.
"Funding Office" means (i) with respect to any
Negotiated Loan by any Bank, the office or Affiliate of such Bank
specified in the acceptance of the related Negotiated Loan
Confirmation, and (ii) with respect to any Eurodollar Loan or
Base Rate Loan by any Bank, the office or Affiliate of such Bank
specified for such Type of Loan beneath such Bank's signature
hereto or in any relevant Assignment. Any Bank's Funding Office
for a particular Loan shall be the office or Affiliate through
which such Bank shall fund or shall have funded such Loan.
Subject to Section 9.6(b), each Funding Office of each Bank may
be changed to another domestic or foreign office of such Bank or
domestic or foreign office of any Affiliate of such Bank upon
written notice from such Bank to the Company, the Administrative
Agent and the Negotiated Loan Agent.
"GAAP" means the generally accepted accounting
principles applied in the preparation of the audited consolidated
financial statements of the Company and its Subsidiaries as at
January 1, 1994, with (except as otherwise provided in Section
15.3) such changes thereto as (a) shall be consistent with the
then effective principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors and successors,
and (b) shall be concurred in by the independent certified public
accounts of recognized national standing certifying any financial
statements of the Company and its Subsidiaries.
"GE Capital" means General Electric Capital Corporation,
together with its successors and assigns.
"Group" - see Section 1.2.
"Guaranty" means any instrument or document by which a
Person has directly or indirectly guaranteed (whether by discount
or otherwise), endorsed (other than for collection or deposit in
the ordinary course of business), discounted with recourse to
such Person or with respect to which such Person is otherwise
directly or indirectly liable for the indebtedness or obligations
of any other Persons, including, without limitation, indebtedness
in effect guaranteed by such Person through any agreement
(contingent or otherwise) to (i) purchase, repurchase or
otherwise acquire such indebtedness, (ii) provide funds for the
payment or discharge of such indebtedness or any other liability
of the obligor of such indebtedness (whether in the form of
loans, advances, stock purchases, capital contributions or
otherwise), (iii) maintain the solvency or other financial
condition of the obligor of such indebtedness, or (iv) make
payment for any products, materials, supplies, transportation or
services pursuant to an agreement which requires such payment
regardless of the non-delivery or non-furnishing thereof, if in
any such case the purpose or intent of such agreement is to
provide assurance that such indebtedness will be paid or
discharged or that any agreements relating thereto will be
complied with or that the holders of such indebtedness will be
protected against loss in respect thereof.
"Indebtedness for Borrowed Money" means with respect to
any Person, as of the date of determination thereof, (i) any and
all of such Person's indebtedness for borrowed money (including,
without limitation, indebtedness for borrowed money which is
subordinated), (ii) any and all of such Person's Conditional Sale
Obligations, (iii) any and all indebtedness secured by any Lien
with respect to any property or asset owned by such Person,
regardless of whether the indebtedness secured thereby shall be
of or shall have been assumed by such Person, and (iv) any and
all indebtedness or obligations of any of the types described in
the preceding clauses (i), (ii) and (iii) for which such Person
is liable, directly or indirectly, under a Guaranty; provided,
however, that the obligations of a lessee under a lease shall not
constitute Indebtedness for Borrowed Money and any indebtedness
incurred by such Person which by the terms of the related
agreement is required to be used to retire a payment obligation
to a trade creditor arising from the purchase by such Person of
goods and services acquired for the purpose of resale in the
ordinary course of such Person's business shall not constitute
Indebtedness for Borrowed Money.
"Indemnified Liabilities" - see Section 15.6.
"Interest Period" means (i) with respect to any
Eurodollar Loan, the period commencing on such Eurodollar Loan's
Funding Date (or on the date such Loan was Converted to or
Continued as a Eurodollar Loan) and ending 1, 2, 3 or 6 months
thereafter as selected by the Company pursuant to Section 7.1(a)
or 7.2, (ii) with respect to any Base Rate Loan, the period
commencing on such Base Rate Loan's Funding Date (or on the date
such Loan was Converted to or Continued as a Base Rate Loan) and
ending on the last Business Day of the next following March,
June, September or December, whichever comes first, (iii) with
respect to any Swing Loan, the period commencing on such Swing
Loan's Funding Date and ending on the date specified by the
Company in its request for such Swing Loan, which date shall fall
not later than 7 days after such Funding Date, and (iv) with
respect to any Negotiated Loan, the period commencing on such
Negotiated Loan's Funding Date and ending on the date specified
by the Company in its Negotiated Loan Confirmation for such
Negotiated Loan; provided, however, that:
(A) if an Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day (unless,
in the case of a Eurodollar Loan, such next succeeding
Business Day would fall in the next succeeding calendar
month, in which case such Interest Period shall end on
the next preceding Business Day);
(B) in the case of an Interest Period for any
Eurodollar Loan, if there exists no day numerically
corresponding to the day such Loan was made in the
month in which the last day of such Interest Period
would otherwise fall, such Interest Period shall end on
the last Business Day of such month;
(C) if an Interest Period for any Negotiated Loan
would otherwise extend beyond 182 days after such
Negotiated Loan's Funding Date, such Interest Period
shall end on the 182nd day after such Funding Date
unless such day is not a Business Day, in which case
such Interest Period shall end on the next preceding
Business Day; and
(D) no Interest Period for any Revolving Loan or
Swing Loan shall extend beyond the next occurring
Termination Date for any Bank.
"Liabilities" means any and all of the Company's
obligations to the Agents and the Banks, howsoever created,
arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due,
which arise out of or in connection with this Agreement, any Note
or any document, instrument or agreement executed in connection
with any of the foregoing.
"Lien" means any mortgage, pledge, lien, security
interest or other charge, including the retained security title
of a conditional vendor or lessor.
"Litigation" means any litigation, proceeding
(including without limitation any governmental proceeding or
arbitration proceeding), claim, lawsuit and/or investigation
(including, without limitation, any environmental litigation,
proceeding, claim, lawsuit and/or investigation) pending or
threatened against or involving the Company or any Subsidiary or
any of its or their businesses or operations.
"Loan Request" means any Revolving Loan Request, any
Swing Loan Request and any Negotiated Loan Confirmation.
"Loans" means, collectively, the Negotiated Loans, the
Revolving Loans and the Swing Loans, and "Loan" means,
individually, any Negotiated Loan, Revolving Loan or Swing Loan.
"Management Investor" means (i) any Person who is
listed in Schedule VII, (ii) any Person who on the Effective Date
is the owner of any shares of Class A Common Stock, and (iii) any
Person who on the date of determination, whether or not such
Person is otherwise a Management Investor, is an employee of the
Company, the Parent or their Subsidiaries or a director of the
Parent (elected to the Board of Directors by the Class A Common
Stock shareholders) and is then either the owner of shares of
Class A Common Stock or the holder of options to purchase shares
of Class A Common Stock pursuant to any employee stock option
plan established by or for the benefit of the employees of the
Company, the Parent or their Subsidiaries or directors of the
Parent.
"Margin Stock" has the meaning given to such term in
Regulations U and/or X.
"Master Register" - see Section 8.5(b).
"Material Litigation" or "Material Litigation
Development" means any Litigation or development in any
Litigation which could individually or in the aggregate impair
the validity or enforceability of or the ability of the Company
to perform any of its obligations under this Agreement or the
Notes or the MWCC Receivables Purchase Agreement, or materially
impair the ability of the Company to conduct business
substantially as now conducted, or materially and adversely
affect the consolidated business, operations, prospects or
financial condition of the Company and its Subsidiaries, taken as
a whole.
"MWCC" means Montgomery Ward Credit Corporation.
"MWCC Receivables Purchase Agreement" means the Account
Purchase Agreement between MWCC and the Company, together with
the Guaranty made by GE Capital of MWCC's obligations under such
Account Purchase Agreement, both dated as of June 24, 1988, as
the same may be amended, modified or supplemented from time to
time in a manner which does not result in an Event of Default
under Section 13.1(j).
"Mobil" - see Section 10.14(c).
"Multiemployer Plan" means a "multiemployer plan", as
such term is defined in section 4001(a) of ERISA, which is
subject to Title IV of ERISA and to which the Company or any
ERISA Affiliate contributed or otherwise may have any liability.
"Negotiated Loan Agent" - see Preamble.
"Negotiated Loan Confirmation" - see Section 4.3(a).
"Negotiated Loan Register" - see Section 8.5(c).
"Negotiated Loans" - see Section 4.1.
"Negotiated Note(s)" - see Section 4.5.
"Non-Restricted Subsidiary" means each Subsidiary which
is not a Restricted Subsidiary.
"Non-United States Person" means a Person who is not
(i) a citizen or resident of the United States, (ii) a
corporation, partnership or other entity created or organized
under the laws of the United States, or (iii) an estate or trust
the income of which is subject to United States federal income
taxation regardless of its source; and "United States" means the
United States of America (including the States and the District
of Columbia).
"Notes" means, collectively, the Revolving Notes, the
Negotiated Notes and the Swing Notes; and "Note" means any
individual Revolving Note, Negotiated Note or Swing Note.
"Outstanding Original Shares" means all shares of Class
A Common Stock held by Management Investors at the close of
business on June 23, 1988 (including any shares of stock and any
options, warrants or other rights convertible or exchangeable for
shares of such stock received as a direct or indirect result of
any stock dividend, stock split or capitalization with respect to
such stock) but excluding any such Class A Common Stock
repurchased by the Parent under the Parent Shareholders'
Agreement with respect to any Management Investor, which
repurchased shares have not been (i) resold to a Management
Investor or an employee stock ownership plan established by or
for the benefit of the employees of the Company, the Parent or
their Subsidiaries, or (ii) reserved for issuance to employees of
the Company, the Parent or other Subsidiaries or directors of the
Parent, pursuant to an employee stock option plan established for
the benefit of such employees or directors.
"Parent" means Montgomery Ward Holding Corp., a
Delaware corporation, together with any Successor to Parent.
"Parent Shareholders' Agreement" means the agreement
dated as of June 22, 1988 among the Parent and certain
shareholders thereof, as such agreement has been and may
hereafter be amended, modified or supplemented from time to time
in a manner not inconsistent with this Agreement.
"Participant(s)" - see Section 15.4(a).
"Payment Sharing Notice" means a written notice from
any Bank or any Agent to all other parties under this Agreement,
given at any time that an Event of Default has occurred and is
continuing, which directs the Agents to allocate payments
received from the Company in accordance with Section 8.2.
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions under
ERISA.
"Percentage" - see Section 2.2(a).
"Permitted Lien" - see Section 11.2.
"Person" means an individual or a corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind.
"Plan" means a "pension plan", as such term is defined
in ERISA, which is subject to Title IV of ERISA (other than a
Multiemployer Plan), established or maintained by the Company or
any ERISA Affiliate as to which the Company or any ERISA
Affiliate contributed or is a member or otherwise may have any
liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA
at any time during the five years preceding the Effective Date,
or by reason of being deemed to be a contributing sponsor under
section 4069 of ERISA.
"Qualified Purchaser" means (i) any Management
Investor, (ii) the Company and the Parent, (iii) GE Capital or a
parent or subsidiary thereof, (iv) a spouse, descendant or
ancestor of a Management Investor, or a spouse of a descendant or
ancestor of a Management Investor, or a trustee of a trust or
custodian of a custodianship for the benefit of one or more of
the foregoing and/or a Management Investor, (v) the personal
representative or any heir, legatee or devisee of any Management
Investor, or (vi) any employee stock ownership plan established
by or for the benefit of employees of the Company, the Parent or
their Subsidiaries.
"Ratio of Earnings to Fixed Charges" means for any
Ratio Period, the ratio of (i) the sum of Consolidated Net Income
for such Ratio Period before addition of any amount for interest
income and before deduction of any amount for all income taxes,
interest expense, depreciation, amortization and rental expense,
to (ii) the sum of the excess of all interest expense over
interest income plus all rental expense plus capital expenditures
(other than asset additions under capital leases determined in
accordance with GAAP, except as set forth in Section 15.3) of the
Company and its Subsidiaries payable with respect to such Ratio
Period, all as determined in accordance with GAAP (except as set
forth in Section 15.3).
"Ratio Period" means the eight (8) consecutive Fiscal
Quarters ending as of the date as of which the Ratio of Earnings
to Fixed Charges is being determined.
"Reference Banks" means The First National Bank of
Chicago, The Bank of New York and The Bank of Nova Scotia.
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System and any successor rule or
regulation of similar import as in effect from time to time.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System and any successor rule or
regulation of similar import as in effect from time to time.
"Regulation X" means Regulation X of the Board of
Governors of the Federal Reserve System and any successor rule or
regulation of similar import as in effect from time to time.
"Renewal Date" - see Section 2.7.
"Renewed Termination Date" - see Section 2.7.
"Replacement Agreement" - see Section 15.4(e).
"Replacement Bank" - see Section 15.4(e).
"Reply Date" - see Section 2.7.
"Reportable Event" has the meaning given to such term
in ERISA.
"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.
"Restricted Payment" - see Section 11.5.
"Restricted Subsidiary" means any Subsidiary designated
as such by the Company's Board of Directors or by an officer of
the Company authorized by the Board of Directors to make such
designation and which designation shall not thereafter have been
cancelled by the Company's Board of Directors or by an officer of
the Company authorized by the Board of Directors to effect such
cancellation; provided, however, that a Subsidiary may be
designated as a Restricted Subsidiary or such designation may be
cancelled if and only if immediately after such designation or
cancellation, and after giving effect thereto, no Event of
Default or Unmatured Event of Default shall have occurred and be
continuing.
"Revolving Loan(s)" - see Section 2.1.
"Revolving Loan Request" - see Section 7.1(a).
"Revolving Note" - see Section 2.5.
"Risk-Based Capital Guidelines" - see Section 9.1(b).
"SEC" means the Securities Exchange Commission and any
successor thereof.
"Secured Indebtedness" - see Section 11.2(xix).
"Short Term Credit Agreement" means that certain Short
Term Credit Agreement dated as of the date of this Agreement,
among the Company, the Agents and the Banks, as the same may be
amended, modified or supplemented from time to time.
"Special Commitment Fee Termination Date" - see
Section 6.5(b).
"Special Restricted Subsidiary" means any Restricted
Subsidiary (i) with assets that constitute one percent (1%) or
less of the total assets of the Company and all Restricted
Subsidiaries, (ii) with net income for the most recent Fiscal
Year that constitutes one percent (1%) or less of the total net
income of the Company and all Restricted Subsidiaries for the
most recent Fiscal Year, and (iii) with equity of less than
$4,000,000.
"Subordinated Debt" means indebtedness of the Company
which is subordinated to the prior payment of the Liabilities on
terms and conditions acceptable to the Required Banks; provided
that any payments of principal which are scheduled to occur prior
to the last occurring Termination Date of any Bank (pursuant to
Section 2.7) shall not constitute Subordinated Debt.
"Subsidiary" means a corporation of which the Company
and/or its other Subsidiaries own, directly or indirectly, such
number of outstanding shares as have more than 50% of the
ordinary voting power for the election of such corporation's
directors.
"Successor to Parent" - see Section 13.1(h).
"Swing Loan(s)" - see Section 3.1.
"Swing Loan Bank" means as to any Swing Loan, the Bank
making or which made such Swing Loan.
"Swing Loan Percentage" means as to any Bank with
respect to any Swing Loan, the ratio (expressed as a percentage)
of (i) the Unused Commitment of such Bank to (ii) the aggregate
of the Unused Commitments of all Banks, such percentage to be
calculated as if such Swing Loan were not outstanding at the time
of determination.
"Swing Loan Request" - see Section 3.3.
"Swing Note(s)" - see Section 3.5.
"Tax Benefit" - see Section 8.4(c).
"Taxes" - see Section 8.4(a).
"Terminated Bank" - see Section 15.4(e).
"Termination Date" means, with respect to each Bank,
the earlier to occur of (i) the later of (a) the fifth
anniversary of the Effective Date or (b) the date to which the
Commitment of such Bank has been extended pursuant to Section
2.7, or (ii) such other date on which the Aggregate Commitments
shall terminate pursuant to Section 5 or 13.2 or be reduced to
zero pursuant to Section 2.6 and, if in any case such day is not
a Business Day, the next succeeding Business Day.
"Total Capitalization" means at any time the sum of
Debt of the Company and its Restricted Subsidiaries plus Capital
Base plus all Debt-Like Preferred Stock; provided, however, that
if Total Capitalization is being determined as at any date which
is not the last day of a Fiscal Quarter, "Total Capitalization"
equals (i) Debt of the Company and its Restricted Subsidiaries,
plus (ii) all Debt-Like Preferred Stock, plus (iii) Capital Base
as at the end of the most recently completed Fiscal Quarter, plus
(iv) any repayments of loans or advances to Parent received by
the Company since the end of the most recently completed Fiscal
Quarter, plus (v) any capital contributions received by the
Company since the end of the most recently completed Fiscal
Quarter, plus (vi) an amount equal to the net proceeds received
by the Company from the issue or sale after the end of the most
recently completed Fiscal Quarter of any shares of its capital
stock (including treasury stock but excluding Debt-Like Preferred
Stock), plus (vii) an amount equal to the net proceeds from the
issue or sale at any time of that portion of any indebtedness
(other than Subordinated Debt) of the Company or any Restricted
Subsidiary which after the end of the most recently completed
Fiscal Quarter is converted into shares of capital stock (but
excluding Debt-Like Preferred Stock) of the Company or into
indebtedness or shares of capital stock of the Parent, plus
(viii) any decrease since the end of the most recently completed
Fiscal Quarter in the aggregate amount of all advances by the
Company to, and investments of the Company in, Non-Restricted
Subsidiaries other than any decrease resulting from any aggregate
net loss incurred by such Non-Restricted Subsidiaries since the
end of the most recently completed Fiscal Quarter, minus (ix) any
Restricted Payments made since the end of the most recently
completed Fiscal Quarter, minus (x) any increase since the end of
the most recently completed Fiscal Quarter in the aggregate
amount of all advances by the Company to, and investments of the
Company in, Non-Restricted Subsidiaries other than any increase
resulting from any aggregate net income of such Non-Restricted
Subsidiaries since the end of the most recently completed Fiscal
Quarter.
"Type" - see Section 1.2.
"Unmatured Event of Default" means any event which if
it continues uncured will, with lapse of time or notice or lapse
of time and notice, constitute an Event of Default.
"Unused" means as to any Commitment of any Bank, at any
time, the greater of (i) zero or (ii) the Commitment of such Bank
minus the then outstanding Revolving Loans, Negotiated Loans and
Swing Loan of such Bank (or Swing Loans, in the case of the Bank
which is acting as the Administrative Agent), provided that for
purposes of distributing commitment fees under Sections 6.5 and
6.6, the term "Unused" shall be determined without subtracting
any outstanding Swing Loans.
"Welfare Plan" has the meaning assigned to such term by
ERISA.
1.2 Groups and Types of Loans. Loans hereunder are
distinguished by "Type" and by "Group". The "Type" of a Loan
refers to whether such Loan is a Base Rate Loan or a Eurodollar
Loan or a Negotiated Loan. A "Group" of Loans consists of
Revolving Loans of the same Type, with the same Funding Date or
Conversion or Continuation date, and having the same Interest
Period.
SECTION 2 REVOLVING LOANS.
2.1 Commitment to Make Revolving Loans. On the terms
and subject to the conditions of this Agreement, each of the
Banks, severally and for itself alone, agrees to make revolving
loans to the Company (herein collectively called the "Revolving
Loans" and individually called a "Revolving Loan") on a revolving
basis from time to time before the Termination Date for such Bank
in amounts equal to such Bank's Percentage of such aggregate
amounts as the Company may from time to time request pursuant to
Section 7.1, but subject to the limits specified in Section 2.2.
The Revolving Loans may be either Eurodollar Loans or Base Rate
Loans, as selected by the Company pursuant to Section 7.1.
2.2 Revolving Loan Limits. The Revolving Loans shall
be subject to the following limits as determined by the
Administrative Agent pursuant to Section 8.5(b):
(a) Each Bank's share of a Group of Revolving Loans
shall be equal to the ratio (expressed as a percent) that
(i) the Unused Commitment of such Bank immediately prior to
giving effect to the funding of such Group, plus the
aggregate principal amount (or portion thereof) of all Loans
of such Bank to be repaid concurrently with the proceeds of
such funding (but not in excess of such Bank's Commitment),
minus the aggregate principal amount of all Loans of such
Bank which have been requested (or in the case of Negotiated
Loans, confirmed) but not yet funded and which are to be
funded prior to the expiration of the Interest Period of
such Group, bears to (ii) the aggregate of the Unused
Commitments of all Banks immediately prior to giving effect
to such funding, plus the aggregate principal amount (or
portion thereof) of all Loans to be repaid concurrently with
the proceeds of such funding, minus the aggregate principal
amount of all Loans which have been requested (or in the
case of Negotiated Loans, confirmed) but not yet funded and
which are to be funded prior to the expiration of the
Interest Period of such Group (such percentage, as to each
Bank with respect to the Group of Revolving Loans relating
to such funding, being herein called such Bank's
"Percentage"); and
(b) The aggregate principal amount of all Revolving
Loans of all Banks at any one time outstanding, when added
to the aggregate principal amount of all Swing Loans and
Negotiated Loans then outstanding, shall not exceed the then
Aggregate Commitment.
2.3 Borrowing Procedure. The Company shall make
requests for Revolving Loans, and each Bank (and, to the extent
that the Administrative Agent has received immediately available
funds from one or more Banks, the Administrative Agent) shall
fund such requests, pursuant to the procedure set forth in
Section 7.1.
2.4 Repayment. The Company promises to pay to each
Bank on such Bank's Termination Date (or earlier date required
under Section 7.2(c)) the principal amount of all Revolving Loans
made by such Bank which remain outstanding on such Termination
Date (or such earlier date).
2.5 Revolving Notes. Each Revolving Loan shall be
evidenced by the Company's promissory note (as amended, modified
or supplemented from time to time, and together with any renewals
thereof or exchanges or substitutions therefor, collectively
called the "Revolving Notes" and individually called a "Revolving
Note") substantially in the form set forth as Exhibit A, with
appropriate insertions, each of which shall be dated the
Effective Date and made payable to the order of each Bank,
respectively.
2.6 Voluntary Termination or Reduction of the
Commitments.
(a) Termination. At any time on at least five days'
prior irrevocable notice received by the Administrative Agent
(which shall promptly on the same day or on the next Business Day
advise each other Agent and each Bank thereof), the Company may
terminate concurrently the Commitments of all the Banks in their
entirety upon payment in full (in Dollars and in same day funds)
of all outstanding Revolving Loans, Negotiated Loans and Swing
Loans, together with all interest accrued thereon and all fees
and other obligations (including breakage fees pursuant to
Section 9.5) of the Company related thereto.
(b) Reduction. At any time on at least five days'
prior irrevocable notice received by the Administrative Agent
(which shall promptly on the same day or on the next Business Day
advise each other Agent and each Bank thereof), the Company may
permanently reduce the Aggregate Commitment (such reduction to be
pro rata among the Banks according to their respective
Commitments). Concurrently with each such reduction of the
Aggregate Commitment, the Company shall make a mandatory
prepayment of the Loans such that after giving effect thereto (i)
the sum of all outstanding Revolving Loans, Negotiated Loans and
Swing Loans shall not exceed the then reduced amount of the
Aggregate Commitment, and (ii) the aggregate principal amount of
all Revolving Loans of any Bank, plus (except in the case of the
Bank which is the Administrative Agent) any Swing Loan of such
Bank, shall not exceed the amount of such Bank's Commitment as so
reduced. Each prepayment pursuant to this Section 2.6(b) shall
be subject to the provisions of Section 8.1.
2.7 Extension of the Termination Date.
(a) From time to time, the Company may request (but
not more than once in any calendar year) each Bank to extend the
Termination Date then in effect for such Bank ("Existing
Termination Date") to a date ("Renewed Termination Date")
stipulated by the Company in such request which is not more than
one year after the Existing Termination Date. The Company shall
give written notice of such request to the Agents and each Bank,
such notification to be in the form set forth on Exhibit B hereto
("Extension Request"). On or before the date ("Reply Date")
specified by the Company in its Extension Request (which shall be
30 days after the date on which the Extension Request was given,
or if such 30th day is not a Business Day, the immediately
preceding Business Day), each of the Banks shall notify the
Company and the Administrative Agent in writing whether or not
such Bank will consent to the proposed Termination Date
extension, such notification to be in the form set forth on
Exhibit C hereto ("Extension Reply"). If, but only if, each of
the following conditions are satisfied:
(i) On or prior to the Reply Date, the Administrative
Agent shall have received Extension Replies representing
consents to the Extension Request executed by Banks
representing at least 66-2/3% of the Commitments of all
Banks;
(ii) On or prior to the date ("Renewal Date") which is
45 days after the Reply Date, the Administrative Agent shall
have received Extension Replies representing consents to the
Extension Request executed by Banks (the "Extension Banks")
representing not less than 90% of the Commitments of all
Banks at such time; and
(iii) On the Renewal Date no Event of Default or
Unmatured Event of Default exists and the Administrative
Agent shall have received from the Company a certificate of
an Authorized Officer of the Company dated such Renewal Date
to such effect,
then on such Renewal Date, the Termination Date for each of the
Extension Banks (but not for any Bank which is not an Extension
Bank) shall be so extended to the Renewed Termination Date.
Notwithstanding the foregoing, upon written notice to the
Company, the Administrative Agent and the Negotiated Loan Agent
given at any time after such Renewal Date, any Bank which is not
an Extension Bank may extend its Termination Date to the Renewed
Termination Date applicable to the Extension Banks by furnishing
an Extension Reply to the Administrative Agent. Promptly after
any of the foregoing extensions, the Administrative Agent shall
forward to the Negotiated Loan Agent and all Banks a revised
Schedule I setting forth for each Bank the amount of such Bank's
Commitment, such Bank's Termination Date and the Aggregate
Commitment after giving effect to such extensions.
(b) As long as the Short Term Credit Agreement is in
effect, the Company agrees that the date of the Extension Request
and the Reply Date shall coincide with the date of the extension
request and the reply date then requested by the Company pursuant
to the Short Term Credit Agreement.
SECTION 3 SWING LOANS.
3.1 Commitment to Make Swing Loans. On the terms and
subject to the conditions of this Agreement, each of the Banks
severally, and for itself alone, agrees to make loans (herein
collectively called "Swing Loans" and individually called a
"Swing Loan") to the Company in such amounts as the Company may
from time to time request, but subject to the limits specified in
Section 3.2.
exceed the following limits: (i) no Bank (except the Bank which
is Administrative Agent) shall be obligated to make any Swing
Loan in excess of the Unused Commitment of such Bank, (ii) the
aggregate principal amount of Swing Loans at any one time
outstanding as determined by the Administrative Agent pursuant to
Section 8.5(b), when added to all swing loans (if any) then
outstanding under the Short Term Credit Agreement, shall not
exceed $30,000,000, (iii) so long as the aggregate principal
amount of all Loans under this Agreement, when added to the
aggregate principal amount of all loans (if any) then outstanding
under the Short Term Credit Agreement, shall exceed $301,500,000,
the Company shall have no right to request from any Bank other
than the Bank which is Administrative Agent, and no Bank other
than the Bank which is Administrative Agent shall be required to
make, any Swing Loan, (iv) there shall be not more than one Swing
Loan outstanding at any one time from any Bank which is not the
Administrative Agent, and (v) the aggregate principal amount of
Swing Loans shall not exceed the limits specified in Section
2.2(b).
3.3 Borrowing Procedure. Each Swing Loan shall be
made on notice, delivered by the Company to the Swing Loan Bank
and to the Administrative Agent, not later than 1:00 p.m.,
Chicago time, or such other time agreed to by the Company and the
Swing Loan Bank, on the date on which the Company desires to
obtain such Swing Loan, such notice to be in writing or by telex,
or telephonic notice confirmed promptly thereafter in writing,
substantially in the form of Exhibit G ("Swing Loan Request").
Not later than 2:00 p.m., Chicago time, or such other time agreed
to by the Company and the Swing Loan Bank, on such date, the
Swing Loan Bank shall provide the Company, at the Funding Office
of such Bank for Base Rate Loans, immediately available funds in
the amount of such Swing Loan unless prior to such time the
Administrative Agent shall have advised the Swing Loan Bank that
such Loan would not be within the limits specified in Section 3.2
or the Swing Loan Bank becomes aware that the conditions set
forth in Section 12.2 have not been satisfied with respect to
such Loan, in either of which events such Swing Loan shall not be
made. Concurrently with each funding of a Swing Loan, the Swing
Loan Bank shall give notice of such Swing Loan to the
Administrative Agent. The Swing Loan Bank shall be entitled to
assume that each of the conditions to the making of the Swing
Loan have been satisfied absent actual knowledge to the contrary
received by the Swing Loan Bank.
3.4 Interest and Repayment. Each Swing Loan shall,
before the maturity of such Swing Loan, bear interest at the Base
Rate. Each Swing Loan (including accrued interest) shall be due
and payable on the last day of the Interest Period applicable
thereto, but in no event later than the Termination Date of the
Bank making such Swing Loan. Each Swing Loan shall be
prepayable, at the Company's option, on notice to each of the
Swing Loan Bank and the Administrative Agent. Each payment of
principal or interest on a Swing Loan shall be made by the
Company directly to the Swing Loan Bank at its Funding Office for
Base Rate Loans accompanied by notice to the Administrative
Agent. Promptly upon repayment of any Swing Loan, the Swing Loan
Bank shall advise the Administrative Agent thereof.
3.5 Swing Notes. Each Swing Loan shall be evidenced
by the Company's promissory note (as amended, modified or
supplemented from time to time, and together with any renewals
thereof or exchanges or substitutions therefor, collectively
called the "Swing Notes" and individually called a "Swing Note")
substantially in the form of Exhibit D, with appropriate
insertions, which shall be dated the Effective Date and made
payable to the order of each Bank, respectively.
3.6 Participation of Banks. From time to time when
any Swing Loans are outstanding, (a) upon written demand made of
the Administrative Agent and the Company by any Swing Loan Bank,
the Company agrees to request Loans from all of the Banks in
accordance with Section 2.1 and to apply the proceeds of such
Loans to the repayment of all outstanding Swing Loans of such
Swing Loan Bank; and (b) upon written demand by any Swing Loan
Bank, each other Bank irrevocably and unconditionally shall
purchase and receive from such Swing Loan Bank, without recourse
or warranty (except that the outstanding Swing Loans in fact were
made and not theretofore sold or assigned by such Swing Loan
Bank), an undivided interest and participation in the Swing Loans
then outstanding of such Swing Loan Bank, by paying to the
Administrative Agent, in Dollars and in same day funds, an amount
equal to such other Bank's Swing Loan Percentage of all Swing
Loans of such Swing Loan Bank then outstanding, whereupon the
Administrative Agent shall promptly, but not more than one
Business Day thereafter, pay over such funds to such Swing Loan
Bank. Upon receipt by such Swing Loan Bank of the funds required
to be paid to the Administrative Agent, such Swing Loans shall
thereafter be treated in all respects as Base Rate Revolving
Loans under this Agreement, except that such Swing Loan Bank may
retain for its own account all interest accrued thereon prior to
the date of each such payment.
SECTION 4 NEGOTIATED LOANS
4.1 Negotiated Loan Option. On the terms and subject
to the conditions of this Agreement, each of the Banks, severally
and for itself alone, agrees that the Company shall have the
option from time to time to request loans (herein collectively
called "Negotiated Loans" and individually called a "Negotiated
Loan"), and that if such Bank, in its sole discretion, accepts
such request for a Negotiated Loan it will make such Negotiated
Loan to the Company in accordance with such request as so
accepted, subject, however, to the limits specified in
Section 4.2. No Bank shall be obligated to accept any request
for a Negotiated Loan.
4.2 Negotiated Loan Limits. The aggregate principal
amount of all Negotiated Loans, when added to the aggregate
principal amount of all Revolving Loans and Swing Loans then
outstanding, all as determined by the Administrative Agent
pursuant to Section 8.5(b), shall not exceed the Aggregate
Commitment at any time. Subject to the foregoing, the Negotiated
Loans of any Bank may be less than, equal to or greater than the
Commitment of such Bank.
4.3 Procedure for Negotiated Loans.
(a) Negotiated Loan Confirmation. The Company shall
make each request for a Negotiated Loan by furnishing a request
to any Bank selected by the Company, such request to be in
writing, or by telex or telephonic notice confirmed promptly
thereafter in writing, substantially in the form of Exhibit H
("Negotiated Loan Confirmation"). Each Negotiated Loan
Confirmation shall specify the principal amount, the Interest
Period, the interest rate, and the Funding Date of such
Negotiated Loan, together with the other information provided for
in the Negotiated Loan Confirmation. Concurrently with each
acceptance by a Bank of a Negotiated Loan Confirmation, the
Company and the accepting Bank shall advise in writing, or by
telex or telephonic notice confirmed promptly thereafter in
writing, each of the Negotiated Loan Agent and the Administrative
Agent of the amount, maturity and Funding Date of the requested
Negotiated Loan as so accepted.
(b) Funding of Negotiated Loans.
(i) Not later than 12:00 noon, Chicago time, on
the Funding Date of each Negotiated Loan, the Bank
making such Negotiated Loan shall provide (subject to
netting pursuant to Section 7.1(d)) the Negotiated Loan
Agent at such Agent's Funding Office with immediately
available Dollars covering such Bank's Negotiated Loan
to be funded on such Funding Date. The Negotiated Loan
Agent shall pay over such funds to the Company on such
day unless prior to such time, the Negotiated Loan
Agent receives notice from the Company or the
Administrative Agent, whether pursuant to Section
4.3(b)(ii) or Section 8.5(b) or otherwise, that the
Company has not satisfied the conditions set forth in
Section 12. If the Negotiated Loan Agent receives such
notice, then (A) the Negotiated Loan Agent shall not
pay over such funds to the Company on such day, (B) the
Loan Request related to such Loan or Loans shall be
deemed cancelled in its entirety, (C) the Company shall
be liable to such Bank in accordance with Section 9.5,
and (D) the Negotiated Loan Agent shall return the
amount previously provided to the Negotiated Loan Agent
by such Bank on the next following Business Day,
together with interest on such amount for each day that
elapses from and including the originally scheduled
Funding Date of such Negotiated Loan(s) to but
excluding the day on which the Negotiated Loan Agent so
returns such amount at the Federal Funds Rate for each
such day, based upon a year of 360 days.
(ii) The Company agrees to notify the Negotiated
Loan Agent, the Administrative Agent and the Bank
scheduled to make a Negotiated Loan immediately of any
failure to satisfy the conditions set forth in Section
12. The Negotiated Loan Agent shall be entitled to
assume that each of such conditions have been satisfied
absent actual knowledge to the contrary received by the
Negotiated Loan Agent.
(iii) Concurrent with each funding of a Negotiated
Loan, the Negotiated Loan Agent shall advise the
Administrative Agent thereof.
4.4 Interest and Repayment. Each Negotiated Loan
shall bear interest payable at such rate and at such times as set
forth in the related Negotiated Loan Confirmation, it being
understood that such interest rate may be fixed or fluctuating
and may be less than, equal to or greater than the interest rate
applicable to Revolving Loans or Swing Loans. Each Negotiated
Loan shall mature on the last day of the Interest Period
applicable thereto, but in no event later than the Termination
Date of the Bank making such Negotiated Loan. Accrued interest
on each Negotiated Loan shall be payable directly to the Bank
making such Negotiated Loan. The principal of each Negotiated
Loan shall be paid by the Company to the Negotiated Loan Agent
for the account of the Bank making such Negotiated Loan.
Promptly upon repayment of each Negotiated Loan, the Negotiated
Loan Agent shall advise the Administrative Agent thereof. Each
Bank making a Negotiated Loan shall give notice in writing to the
Administrative Agent and the Negotiated Loan Agent of any failure
by the Company to pay interest when due on any Negotiated Loan.
4.5 Negotiated Loan Notes. Each Negotiated Loan shall
be evidenced by the Company's promissory note (as amended,
modified or supplemented from time to time and together with any
renewals thereof or exchanges or substitutions thereof,
collectively called the "Negotiated Notes" and individually
called a "Negotiated Note" and being substantially in the form
set forth in Exhibit E), in each case with appropriate
insertions, each of which shall be dated the Effective Date and
made payable to the order of each Bank, respectively.
SECTION 5 TERMINATION OF COMMITMENTS UPON A CHANGE OF
CONTROL
If a Change of Control occurs, then upon thirty days'
written notice to the Company given not later than 180 days after
the date on which written notice of the occurrence of such Change
of Control is given to the Banks pursuant to Section 11.1(h)
following any Change of Control, (i) the Required Banks may by
notice to the Company terminate the Commitments of all of the
Banks, whereupon all of the Commitments shall terminate
immediately, and (ii) Banks holding Notes evidencing at least
66-2/3% of the aggregate unpaid principal amount of all Loans may
by notice to the Company declare all Liabilities to be due and
payable, whereupon all Liabilities shall become immediately due
and payable, all without presentment, demand or further notice of
any kind, all of which are hereby waived by the Company.
SECTION 6 INTEREST AND FEES.
6.1 Interest Rates. The Company hereby promises to
pay interest on the unpaid principal amount of each Loan for the
period commencing on the Funding Date of such Loan until such
Loan is paid in full, as follows:
(a) if such Loan is a Base Rate Loan or a Swing
Loan, at a rate per annum equal to the Base Rate from
time to time in effect;
(b) if such Loan is a Eurodollar Loan, at a rate
per annum during each Interest Period equal to the
Eurodollar Rate applicable to such Interest Period,
plus 0.375% per annum, plus any applicable Eurodollar
Margin Increment; and
(c) if such Loan is a Negotiated Loan, at a rate
determined pursuant to Section 4.4;
provided, however, that after maturity of any Loan (whether by
acceleration or otherwise), such Loan shall bear interest on the
unpaid principal amount thereof at a rate per annum equal to the
Base Rate from time to time in effect (but not less than the
applicable interest rate in effect at maturity) plus 2% per
annum. The Company hereby further promises to pay any additional
interest on the unpaid principal amount of each applicable Fixed
Rate Loan, whether before or after the maturity thereof, as may
be required in accordance with Section 9.
6.2 Eurodollar Margin Increment. If at the end of any
Fiscal Quarter, the Ratio of Earnings to Fixed Charges determined
as of the last day of such Fiscal Quarter is less than 1.25:1, or
if the Company has failed to provide on a timely basis the
certificate required to be furnished by it pursuant to
Section 11.1(c), then subject to Section 6.9, from and including
the first day after the end of such Fiscal Quarter to but
excluding the first day after the end of the following Fiscal
Quarter, the Company shall pay additional interest with respect
to its Eurodollar Loans outstanding during such following Fiscal
Quarter in an amount equal to 0.125% per annum (the "Eurodollar
Margin Increment").
6.3 Interest Payment Dates. Accrued interest on each
Loan shall be payable on the last day of the Interest Period
therefor and on each Conversion date related to such Loan;
provided, however, that accrued interest on each Eurodollar Loan
which has an Interest Period of 6 months shall be payable on the
90th day of such Interest Period or, if such day is not a
Business Day, on the next succeeding Business Day; and provided,
further, that any interest payable with respect to an applicable
Eurodollar Margin Increment shall be payable within fifteen days
of the last day of the Fiscal Quarter during which such
Eurodollar Margin Increment is applicable and on the Termination
Date to the extent any Eurodollar Margin Increment has
theretofore accrued and remains outstanding. After maturity of
any Loan, accrued interest on such Loan shall be payable on
demand.
6.4 Setting and Notice of Loan Rates.
(a) The applicable interest rate for each Loan (other
than a Negotiated Loan) shall be determined by the Administrative
Agent and, in the case of Eurodollar Loans, notice thereof shall
be given by the Administrative Agent to the Company and each Bank
promptly, but in any event on the same day as received. Each
determination of the applicable interest rate by the
Administrative Agent shall be conclusive and binding upon the
parties hereto, in the absence of manifest error.
(b) In the case of Eurodollar Loans, each Reference
Bank agrees to use its best efforts to notify the Administrative
Agent in a timely fashion of its applicable rate after the
Administrative Agent's request therefor. If as to any Interest
Period any one or more of the Reference Banks is unable or for
any reason fails to notify the Administrative Agent of its
applicable rate by 9:30 a.m., Chicago time, two Business Days
before the beginning of such Interest Period, then the applicable
Eurodollar Rate shall be determined on the basis of the rate or
rates of which the Administrative Agent is given notice by the
remaining Reference Bank or Banks by such time. If none of the
Reference Banks notifies the Administrative Agent of such a rate
prior to 9:30 a.m., Chicago time, two Business Days before the
beginning of such Interest Period, then (i) the Administrative
Agent shall promptly notify the other parties thereof and (ii) at
the Company's option, the Loan Request or Conversion Notice
delivered by the Company with respect to such Interest Period
shall be cancelled or, if not cancelled, shall be deemed to have
specified a Base Rate Loan.
(c) The Administrative Agent shall, upon written
request of the Company or any Bank, deliver to the Company or
such Bank a statement showing the computations used by the
Administrative Agent in determining the interest rate applicable
to any Eurodollar Loan.
6.5 Commitment Fees.
(a) The Company agrees to pay to the Administrative
Agent for the account of each Bank (pro rata in accordance with
the average daily amount of the Unused Commitment of such Bank),
within fifteen days of the last day of December 1994, and
thereafter within fifteen days of the last day of each calendar
quarter of each year until the Termination Date for such Bank,
and on the Termination Date for such Bank, a commitment fee
computed at the rate of 0.12% per annum on the average daily
amount of the Aggregate Commitment minus the aggregate principal
amount of all Revolving Loans and Negotiated Loans then
outstanding during the quarterly or other period preceding the
date of such payment (commencing, in the case of the first of
such periods, on and as of the Effective Date), payable in
arrears for the quarterly or other period then ending; provided,
however, that if at the end of any Fiscal Quarter, the Ratio of
Earnings to Fixed Charges determined as of the last day of such
Fiscal Quarter is less than 1.25:1 then from and including the
first day after the end of such Fiscal Quarter to but excluding
the first day after the end of the following Fiscal Quarter, the
rate set forth above shall be increased by 0.0675% per annum.
(b) During the period commencing on the Effective Date
and ending on the second anniversary of the Effective Date (the
"Special Commitment Fee Termination Date"), the Company agrees to
pay to the Administrative Agent for the account of each Bank
listed on Schedule IA, a special commitment fee which shall be in
addition to the commitment fee payable under Section 6.5(a).
Such special commitment fee shall be payable within fifteen days
of the last day of December 1994, and thereafter within fifteen
days of the last day of each calendar quarter of each year for
such Bank, and on the Special Commitment Fee Termination Date,
and shall be computed at the rate of 0.08% per annum on the
average daily amount determined by subtracting the outstanding
Loans made by such Bank hereunder from the amount set forth
opposite such Bank's name on Schedule IA. Such special
commitment fee shall be payable in arrears for the quarterly or
other period then ending.
6.6 Displaced Commitment Fee. The Company agrees to
pay to the Administrative Agent for the account of each Bank (pro
rata in accordance with the respective average daily amount of
the Unused Commitment of each Bank), within fifteen days of the
last day of December 1994, and thereafter within 15 days of the
last day of each calendar quarter of each year until the
Termination Date of such Bank and on the Termination Date of such
Bank, a displaced commitment fee computed at the rate of 0.10%
per annum on the average daily amount of Displaced Loans during
the quarterly or other period preceding the date of such payment
(commencing, in the case of the first of such periods, on and as
of the Effective Date), payable in arrears for the quarterly or
other period then ending. As used herein, the term "Displaced
Loans" means for all Banks which, as a result of their Negotiated
Loans, have made Loans in excess of their respective Commitment,
the Loans representing the excess of all Loans made by such Banks
over the aggregate Commitments of such Banks.
6.7 Agents' Fees. The Company agrees promptly to pay
to each Agent such fees as may be agreed from time to time by the
Company and such Agent.
6.8 Computation of Interest and Fees. Interest on
Eurodollar Loans shall be computed for the actual number of days
elapsed on the basis of a 360-day year. Interest on Negotiated
Loans shall be computed in accordance with the related Negotiated
Loan Confirmations. Interest on Base Rate Loans and all fees
shall be computed for the actual number of days elapsed on the
basis of a 365- or, if applicable, 366-day year. The interest
rate applicable to each Base Rate Loan, and after maturity of any
other Type of Loan the interest rate applicable to such Loan,
shall change simultaneously with each change in the Base Rate
without any notice or other action involving the Company.
6.9 Determination of Margin and Fee Increase. For the
purposes of calculating the Eurodollar Margin Increment in
Section 6.2 or any fee increase (a "Fee Increase") in Section
6.5, the Ratio of Earnings to Fixed Charges as at the end of any
Fiscal Quarter shall be determined (i) in the case of each of the
first three Fiscal Quarters of any Fiscal Year by reference to
the certificate from the Company to be delivered to each of the
Banks pursuant to Section 11.1(c) and (ii) in the case of the
last Fiscal Quarter of any Fiscal Year, initially by reference to
a certificate from the Company to be delivered to each of the
Banks not later than ninety days following the end of such Fiscal
Quarter in the form of the certificate delivered pursuant to the
foregoing clause (i) (but limited to the calculation of the Ratio
of Earnings to Fixed Charges). Each such certificate shall
contain the Company's calculation of the Ratio of Earnings to
Fixed Charges as at the end of the preceding Fiscal Quarter.
Until receipt by the Banks of such certificate, failure of the
Company to furnish such certificate on a timely basis shall be
deemed (for purposes of Sections 6.2 and 6.5) to constitute an
acknowledgement by the Company that the Ratio of Earnings to
Fixed Charges is less than 1.25:1. If, in the case of any Fiscal
Quarter, the actual Ratio of Earnings to Fixed Charges as at the
end of the preceding Fiscal Quarter (as determined by reference
to the audited report delivered pursuant to Section 11.1, to any
correction with respect to any certificate previously furnished
by the Company or to any certificate furnished on an untimely
basis) results in a Eurodollar Margin Increment or a Fee Increase
different from that applied in connection with the Company's
calculation, such new Eurodollar Margin Increment or Fee Increase
shall come into effect immediately upon the Banks' receipt of
such report, correction or untimely certificate and shall be
given retroactive effect to and including the first day of the
Fiscal Quarter immediately following the Fiscal Quarter to which
such report, correction or untimely certificate relates, and
within fifteen days of the Banks' receipt of such report,
correction or untimely certificate, either the Company shall pay
to the Administrative Agent (for the account of the Banks) or the
Banks shall pay to the Administrative Agent (for return to the
Company) such amounts as shall be necessary to give effect to
such new Eurodollar Margin Increment or such new Fee Increase.
SECTION 7 REVOLVING LOAN PROCEDURES;
CONVERSIONS AND CONTINUATIONS.
7.1 Procedure for Revolving Loans.
(a) Loan Requests. The Company shall give the
Administrative Agent irrevocable telephonic notice (promptly
confirmed in writing on the same day), not later than 9:30 a.m.,
Chicago time, of each borrowing of Revolving Loans (i) in the
case of a Eurodollar Loan, at least three (3) Business Days prior
to the Funding Date for such Loans and (ii) in the case of a Base
Rate Loan, on the Funding Date for such Loans. The
Administrative Agent shall advise each Bank of such notice
promptly, but in any event on the same day as received, and, in
the case of Eurodollar Loans, request each Reference Bank to
notify the Administrative Agent of its applicable rate (as
contemplated in the definition of Eurodollar Rate). Each such
notice from the Company to the Administrative Agent shall be
substantially in the form of Exhibit F ("Revolving Loan Request")
with appropriate insertions, and shall specify (i) the Funding
Date for the Revolving Loans requested, (ii) the aggregate amount
of the Revolving Loans requested (in an amount permitted under
Section 7.1(b)), (iii) whether the requested Revolving Loans
shall be Eurodollar Loans or Base Rate Loans, and (iv) in the
case of Eurodollar Loans, the Interest Period therefor (subject
to the limitations set forth in the definition of Interest
Period).
(b) Amount and Increments of Revolving Loans. Each of
the Company's Revolving Loan Requests shall request Revolving
Loans in a minimum aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 over such amount, not to exceed, in the
aggregate at any one time outstanding, the limits specified in
Section 2.2
(c) Funding of Revolving Loans.
(i) Not later than 12:00 noon, Chicago time, on
each Funding Date for Revolving Loans, each Bank shall
provide (subject to netting pursuant to Section 7.1(d))
the Administrative Agent at such Agent's Funding Office
for Base Rate Loans with immediately available Dollars
covering such Bank's Revolving Loan and, if the
conditions set forth in Section 12 shall have been
satisfied not later than 9:00 a.m., Chicago time, on
such date, such Agent shall pay over such funds to the
Company on such day. If such conditions have not been
satisfied prior to such time, then (A) such Agent shall
not pay over such funds to the Company on such day, (B)
the Loan Request related to such Loan shall be deemed
cancelled in its entirety, (C) the Company shall be
liable to each Bank in accordance with Section 9.5, and
(D) such Agent shall return the amount previously
provided to such Agent by each Bank on the next
following Business Day together with interest on such
amount for each day that elapses from and including
such Loan's originally scheduled Funding Date to but
excluding the day on which such Agent so returns such
amount at the Federal Funds Rate for each such day,
based upon a year of 360 days.
(ii) The Company, notwithstanding its previous
delivery of any documents required under Section 12
with respect to a particular Loan, agrees to notify the
Administrative Agent immediately of any failure to
satisfy the conditions precedent to the making of any
Revolving Loan. The Administrative Agent shall be
entitled to assume, after it has received each of the
documents required under Section 12 with respect to a
particular Loan, that each of the conditions precedent
to the making of such Loan have been satisfied absent
actual knowledge to the contrary received by such Agent
prior to the time of the receipt of such documents.
(d) Netting. If any Bank makes a Loan hereunder on a
day on which the Company is to repay all or any part of any
outstanding Revolving Loan, Swing Loan or Negotiated Loan, as the
case may be, held by such Bank, such Bank shall apply the
proceeds of such new Loan to make such repayment and only an
amount equal to the positive difference, if any, between the
amount being borrowed from such Bank and the amount being repaid
to such Bank shall be made available by such Bank to the
Administrative Agent as provided in Section 7.1(c).
7.2 Conversion and Continuation Procedures.
(a) The Company may (i) Convert all or any part of any
Group of outstanding Revolving Loans (on a pro rata basis among
the Banks based upon their respective Percentage share of such
Group) into Revolving Loans of a different Type or (ii) Continue
on the same basis all or any part of any Group of outstanding
Revolving Loans as the same Type; provided, that, in any case the
Company shall give an irrevocable notice of such Conversion or
Continuation (a "Conversion Notice") to the Administrative Agent
by 10:00 a.m., Chicago time, on a day which in the case of a
Conversion into or a Continuation of Base Rate Loans is at least
one (1) Business Day prior to the proposed date of such
Conversion or Continuation and, in the case of a Conversion into
or a Continuation of Eurodollar Loans, is at least three (3)
Business Days prior to such date. Each such Conversion Notice
shall be effective upon the Administrative Agent's receipt
thereof, shall be in writing (or by telephone promptly confirmed
in writing on the same day), shall specify the date and amount of
such Conversion or Continuation, the Group of Loans to be so
Converted or Continued, the Type of Loans to be Converted into,
and the Interest Period(s) to be applicable to such Loans (in the
case of Eurodollar Loans). Promptly upon receipt of each
Conversion Notice the Administrative Agent shall advise each Bank
thereof and, in the case of Conversions into or Continuations of
Eurodollar Loans, shall request each Reference Bank to notify
such Agent of its applicable rate (as contemplated in the
definition of Eurodollar Rate).
(b) Each Conversion or Continuation of Revolving Loans
shall be in an aggregate principal amount of at least $5,000,000
and an integral multiple of $1,000,000 over such amount. If the
Company does not deliver a Conversion Notice on or before the day
that is three (3) Business Days before the last day of the then
current Interest Period with respect to any Revolving Loan that
is a Eurodollar Loan, such Revolving Loan automatically shall be
Converted into a Base Rate Loan at the end of its then current
Interest Period unless theretofore paid in full. If the Company
does not deliver a Conversion Notice on or before the day before
the last day of the then current Interest Period with respect to
any Revolving Loan that is a Base Rate Loan, such Revolving Loan
automatically shall be Continued as a Base Rate Loan at the end
of its then current Interest Period unless theretofore paid in
full.
(c) Notwithstanding any other provision of this
Agreement, (i) no Group of Revolving Loans shall be Continued or
Converted, if 4 Business Days before the last day of the then
current Interest Period, any Bank notifies the Administrative
Agent that such Loans are not to be Continued or Converted, in
which case such Group of Loans shall be due and payable on the
last day of such Interest Period; provided, however, that this
clause (i) shall not apply to any Group of Revolving Loans which
was made pro rata according to each Bank's Commitment, (ii)
neither Swing Loans nor Negotiated Loans shall be Continued or
Converted pursuant to this Agreement, it being understood that
such Loans shall mature (if not earlier) at the end of their
respective Interest Periods, and (iii) no Loans shall be
Converted to Negotiated Loans or Swing Loans under this Section
7.2.
SECTION 8 MAKING AND SHARING OF PAYMENTS AND
PREPAYMENTS; SETOFF; TAXES; RECORDKEEPING.
8.1 Making of Payments.
(a) All payments of principal of, or interest on, the
Loans, and all payments of commitment fees, shall be made by the
Company to the Applicable Agent in immediately available Dollars
for the account of the Banks or the holders of the applicable
Loans, as the case may be; provided, that (i) the principal of
and accrued interest on each Swing Loan shall be payable directly
to the Swing Loan Bank pursuant to Section 3.4, and (ii) accrued
interest on each Negotiated Loan shall be payable directly to the
Bank that made such Negotiated Loan pursuant to Section 4.4. All
such payments shall be made (or initiated, in the case of
payments being made by Fedwire) to the Applicable Agent or
applicable Bank, as the case may be, at its respective office
shown below its signature hereto (or at such other office as may
be designated from time to time by the Applicable Agent or such
Bank by notice to the other parties), not later than 12:00 noon,
Chicago time, on the date due; and funds received after that hour
shall be deemed to have been received by the Applicable Agent or
applicable Bank, as the case may be, on the next following
Business Day. Notwithstanding the foregoing, all payments under
Section 9 shall be made by the Company directly to the Persons
entitled thereto.
(b) Voluntary Loan Prepayments. The Company may
voluntarily prepay Loans from time to time in whole or in part,
provided that (a) the Company shall give the Administrative Agent
(which shall promptly advise each Bank) not less than three (3)
Business Days' (in the case of Eurodollar Loans) or one (1)
Business Day's (in the case of Base Rate Loans) prior notice
thereof, specifying the Loans to be prepaid and the date and
amount of prepayment, (b) Negotiated Loans may be prepaid only in
accordance with the terms of the accepted Negotiated Loan
Confirmation related thereto or with the consent of the Bank
making such Negotiated Loan, (c) any prepayment of any Loan shall
include accrued interest on the principal amount being paid to
the date of prepayment, (d) any prepayment of a Fixed Rate Loan
shall be subject to the provisions of Section 9.5, and (e) Loans
in the same Group shall be prepaid on a pro rata basis among the
Banks based upon their respective Percentage of such Group.
8.2 Sharing of Payments.
(a) Reallocation. Promptly upon the giving of any
Payment Sharing Notice, the Banks shall purchase and sell among
themselves (without recourse) such participations in the
Revolving Loans and Swing Loans so that after giving effect
thereto with respect to each Bank:
(A) the ratio of (i) the aggregate principal
amount of its then outstanding Loans other than
Negotiated Loans to (ii) the aggregate principal
amount of all then outstanding Loans other than
Negotiated Loans
shall equal
(B) the ratio of (i) the amount, if any, by which
such Bank's Commitment exceeds the aggregate
principal amount of the Negotiated Loans of such
Bank then outstanding (such Bank's "Adjusted
Commitment") to (ii) the aggregate of all Adjusted
Commitments of all Banks,
all in such manner as may be determined by the Administrative
Agent.
(b) Proration of Payments. Whenever (i) any payment
received by either the Administrative Agent or the Negotiated
Loan Agent to be distributed to the Banks in connection with the
Loans or otherwise in connection herewith is insufficient to pay
in full any amounts then due and payable to the Banks in
connection with the Loans, and/or (ii) after receipt by either
the Administrative Agent or the Negotiated Loan Agent of a
Payment Sharing Notice, then any payments (if any) received (and
not theretofore distributed) by the Negotiated Loan Agent with
respect to Negotiated Loans shall be paid over to the
Administrative Agent and all payments received by the
Administrative Agent (whether from the Negotiated Loan Agent or
the Company) shall be distributed to the Banks by the
Administrative Agent in the following order: first, to the
payment of fees and expenses due and payable to the Agents under
or in connection with this Agreement; second, to the payment of
all fees, expenses and other amounts payable under Sections 6,
15.5 and 15.6, ratably among the Banks in accordance with the
aggregate amount of such payments owed to each Bank; third, to
the payment of interest then due and payable on the Loans,
ratably among the Banks in accordance with the aggregate amount
of interest owed to each Bank; fourth, to the payment of the
principal amount of the Loans, ratably among the Banks in
accordance with the aggregate principal amount owed to each Bank;
and fifth, to the payment of all remaining Liabilities (if any)
under this Agreement, ratably among the Banks and the Agents
according to the aggregate amount of such Liabilities owing to
each Bank and each Agent.
(c) Sharing. If any Bank, other holder of a Loan, or
any Participant or Assignee shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of
offset or otherwise) on account of principal of, interest on or
fees or other amounts hereunder in excess of the share of
payments and other recoveries (exclusive of payments or
recoveries under Sections 8.4, 9 and 15.4(e) and exclusive of
payments to a Bank on the Termination Date of such Bank by reason
of the failure of such Bank to extend its Commitment pursuant to
Section 2.7) such Bank or other Person would have received if
such payment or recovery had been in accordance with Sections
8.2(a) and (b), such Bank or other Person shall purchase from the
other Banks or Persons, in a manner to be specified by the
Administrative Agent, such participations in the Loans, as the
case may be, held by them as shall be necessary to cause such
purchasing Bank or other Person to share the excess payment or
other recovery ratably with each of them in accordance with
Sections 8.2(a) and (b), as applicable; provided, however, that
if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Bank or Person, the
purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.
8.3 Setoff. The Company agrees that each Agent, each
Bank (with respect to its Loans and with respect to any
participations it purchases pursuant to Sections 3.6 and 8.2,
with the same effect as if the amount of such participating
interest were owing directly to such Bank) and each holder of a
Note shall have all rights of setoff and bankers' lien provided
by applicable law and, in addition thereto, the Company agrees
that at any time (i) any amount owing by the Company under this
Agreement or any Note is then due, directly or indirectly, to any
Agent, any Bank or any such holder, or (ii) any Event of Default
shall have occurred and be continuing, each Agent, each Bank and
each such holder may apply to the payment of such amount any and
all balances, credits, deposits, accounts or moneys of the
Company then or thereafter with such Agent, such Bank or such
holder, it being understood that the aggregate amounts set off
shall at no time exceed the Liabilities.
8.4 Taxes.
(a) All payments made by the Company to any Agent or
any Bank under or in connection with this Agreement and the Notes
shall be made without any setoff or counterclaim, and free and
clear of and without deduction or withholding for or on account
of any present or future Taxes now or hereafter imposed by any
governmental or other authority, except to the extent that such
deduction or withholding is compelled by law. As used herein,
the term "Taxes" shall include all income, excise and other taxes
of whatever nature (other than taxes generally assessed on the
overall net income of any Agent or any Bank, as the case may be,
by the government or other authority of the country in which such
Agent or such Bank is incorporated or in which such Bank's
Funding Office or the office through which such Agent is acting
is located provided that taxes so assessed on any additional
amounts payable hereunder shall constitute "Taxes") as well as
all levies, imposts, duties, charges or fees of whatever nature.
If the Company is compelled by law to make any such deductions or
withholdings it will:
(i) pay to the relevant authorities the full
amount required to be so withheld or deducted;
(ii) (except to the extent that such deduction or
withholding results from the breach, by the recipient
of a payment, of its agreement, if any, contained in
Section 8.4(b) or would not be required if such
recipient's representation or warranty contained in
Section 8.4(b), if any, were true) pay such additional
amounts (including, without limitation, any penalties,
interest or expenses) as may be necessary in order that
the net amount received by each Agent and each Bank
after such deductions or withholdings (including any
required deduction or withholding on such additional
amounts) shall equal the amount such payee would have
received had no such deductions or withholdings been
made; and
(iii) promptly forward to the Applicable Agent
(for delivery to such payee) an official receipt or
other documentation satisfactory to the Applicable
Agent and such payee evidencing such payment to such
authorities.
Moreover, if any Taxes are directly asserted against
any Agent or any Bank, such payee may pay such Taxes and the
Company (except to the extent that such Taxes result from the
breach, by such payee, of its agreement contained in Section
8.4(b), if any, or would not be asserted if such payee's
representation or warranty contained in Section 8.4(b), if any,
were true) promptly shall reimburse the payee for such Taxes and
shall pay such additional amount (including, without limitation,
any penalties, interest or expenses in connection therewith) as
may be necessary in order that the net amount received by such
payee after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such payee would
have received had no such Taxes been asserted. For purposes of
this Section 8.4, a distribution hereunder by any Agent to or for
the account of any Bank shall be deemed to be a payment by the
Company. The Company's agreement under this Section 8.4 shall
survive repayment of the Liabilities, cancellation of the Notes
and/or any termination of this Agreement.
(b) In consideration of, and as a condition to, the
Company's undertakings in Section 8.4(a), each Bank which is a
Non-United States Person agrees (to the extent it is permitted to
do so under the laws and any applicable double taxation treaty of
the jurisdiction of its incorporation and the jurisdiction in
which its Funding Office is located) to execute and deliver to
the Administrative Agent for delivery to the Company, before the
first scheduled payment date hereunder in each calendar year,
either (i) two United States Internal Revenue Service Forms 1001
or (ii) two United States Internal Revenue Service Forms 4224
together with two United States Internal Revenue Service Forms
W-9, or any successor forms, as appropriate, properly completed
and claiming complete or partial, as the case may be, exemption
from withholding and deduction of United States Federal Taxes.
Each Bank which is a Non-United States Person represents and
warrants to the Company that, at the Effective Date, (x) its
Eurodollar Loan and Base Rate Loan Funding Offices are entitled
to receive payments of interest hereunder without deduction or
withholding for or on account of any Taxes imposed by the United
States or any political subdivision thereof and (y) it is
permitted to take the actions described in the preceding sentence
under the laws and any applicable double taxation treaties of the
jurisdictions specified in the preceding sentence.
(c) If at any time any Bank by reason of payment by
the Company of any Taxes determines in its sole discretion that
it has obtained a net credit against, or return or reduction of,
any tax (other than the tax to which the payment by the Company
relates) payable by it which it would not have enjoyed but for
such payment ("Tax Benefit"), such Bank shall thereupon pay to
the Company the amount which such Bank shall certify to be the
amount that, after payment, will leave such Bank in the same
economic position it would have been in had it received no such
Tax Benefit ("Equalization Amount"); provided, however, that (i)
if such Bank shall subsequently determine that it has lost the
benefit of all or a portion of such Tax Benefit, the Company
shall promptly remit to such Bank the amount certified by such
Bank to be the amount necessary to restore such Bank to the
position it would have been in if no payment had been made
pursuant to this Section 8.4(c), (ii) if such Bank shall be
prevented by applicable law from paying the Company all or any
portion of the Equalization Amount owing the Company, such
payment need not be made, (iii) such Bank shall be under no
obligation to utilize any Taxes either as credits or deductions,
(iv) the Company shall not be entitled to require such Bank to
supply it with details of its tax position and (v) nothing
contained herein shall interfere with the right of any Bank to
arrange its tax affairs as it sees fit. A certificate submitted
by a Bank pursuant to this Section 8.4(c) shall be conclusive, in
the absence of manifest error.
8.5 Recordkeeping.
(a) The Company. The Company shall maintain a
register (the "Company Register") in which it shall (i) record on
a daily basis all Loans made by each Bank (including each Group
and each Type of Loan) to the Company pursuant to this Agreement
and all payments of the principal amount thereof, and (ii)
calculate on a daily basis the outstanding principal amount of
each Loan. At any time the Company becomes aware of the failure
of any Loan or requested Loan to be within the limits specified
in Section 2.2, 3.2 or 4.2, it shall notify the Administrative
Agent, the Negotiated Loan Agent and the Banks of such failure.
On the last day of each week, the Company shall furnish to the
Administrative Agent and the Negotiated Loan Agent a copy of the
Company Register with respect to such week. Upon request of any
Agent or any Bank, the Company shall advise the requesting party
of the information contained in such Company Register or, if so
requested, furnish a copy of the Company Register as it exists
from time to time.
(b) The Administrative Agent. The Administrative
Agent shall maintain a register ("Master Register") in which it
shall (i) calculate each Bank's Percentage of each Group of
Revolving Loans, (ii) record on a daily basis all Loans made by
each Bank (including each Group and each Type of Loan) to the
Company pursuant to this Agreement and all payments of the
principal amount thereof, (iii) calculate on a daily basis the
outstanding principal amount of each Loan, (iv) calculate at the
end of each Interest Period for each Loan (except the Negotiated
Loans) the interest accrued for such Interest Period and (v) upon
the giving of a Payment Sharing Notice, make the calculations
required for the reallocation, proration and sharing provided for
in Section 8.2. The Master Register shall be rebuttable
presumptive evidence of the Loans and payments so recorded and
principal amount and interest so calculated. At any time the
Administrative Agent becomes aware of the failure of any Loan or
requested Loan to be within the limits specified in Section 2.2,
3.2 or 4.2 or to satisfy the conditions of Section 12, it shall
notify the Company, the Negotiated Loan Agent and the Banks of
such failure. Within ten (10) Business Days of the last day of
each Fiscal Quarter, the Administrative Agent shall furnish to
the Company and each Bank a copy of the Master Register with
respect to such Fiscal Quarter. Upon request of the Company or
any Bank, the Administrative Agent shall advise the requesting
party of the information contained in such Master Register or, if
so requested, furnish a copy of the Master Register as it exists
from time to time.
(c) Negotiated Loan Agent. The Negotiated Loan Agent
shall maintain a register ("Negotiated Loan Register") in which
it shall (i) record on a daily basis all Negotiated Loans made by
each Bank to the Company pursuant to this Agreement and all
payments of the principal amount thereof, and (ii) calculate on a
daily basis the outstanding principal amount of each Negotiated
Loan. The Negotiated Loan Register shall be rebuttable
presumptive evidence of the Negotiated Loans and payments so
recorded and principal amount so calculated. At any time the
Negotiated Loan Agent becomes aware of the failure of any
Negotiated Loan or requested Negotiated Loan to be within the
limit specified in Section 4.2, it shall notify the Company, the
Administrative Agent and the Banks of such failure. Within five
(5) Business Days of the last day of each Fiscal Quarter, the
Negotiated Loan Agent shall furnish to the Company and the
Administrative Agent a copy of the Negotiated Loan Register with
respect to such Fiscal Quarter. Upon request of the Company or
any Bank, the Negotiated Loan Agent shall advise the requesting
party of the information contained in such Negotiated Loan
Register or, if so requested, furnish a copy of the Negotiated
Loan Register as it exists from time to time.
(d) Each Bank. All Loans made by each Bank to the
Company pursuant to this Agreement and all payments of the
principal and interest thereon shall be evidenced by such Bank in
its books and records or, at such Bank's option, on the schedule
attached to its respective Note which evidences such Loans, which
books and records or schedule shall be rebuttable presumptive
evidence of the principal and interest owing and unpaid on such
Note.
(e) Failure to Record. The failure to record any
information in the Company Register, the Master Register, the
Negotiated Loan Register, any books or records or any schedule to
any Note, or any error in so recording any such information shall
not limit or otherwise affect the Company's obligations hereunder
or under any Note to repay the principal amount of any Loan
together with all interest accruing thereon.
(f) Conflicts. To the extent that at any time any
Bank or Agent or the Company is aware of any conflict between or
among the Company Register, the Master Register, the Negotiated
Loan Register and the records of any other party to this
Agreement, such party shall immediately advise each of the other
parties to this Agreement and the affected parties shall use
their best efforts to resolve such conflict.
SECTION 9 CHANGE OF CIRCUMSTANCES.
9.1 Reserve and Capital Adequacy Costs.
(a) If Regulation D shall require reserves actually to
be maintained in connection with any Eurodollar Loan or any
Eurocurrency liabilities with respect thereto of any Bank,
regardless of whether such Eurodollar Loan is then outstanding,
such Bank may require the Company to pay (and the Company agrees
to pay) additional interest on such Eurodollar Loan at a rate per
annum equal to the difference between the Eurodollar Rate
(Reserve Adjusted) and the Eurodollar Rate for such Eurodollar
Loan's Interest Period. Any Bank wishing to require such payment
with respect to any such Eurodollar Loan or any Eurocurrency
liabilities with respect thereto shall give notice thereof at
least three (3) Business Days prior to the last day of such
Eurodollar Loan's Interest Period if such Eurodollar Loan is then
outstanding or at least one (1) Business Day prior to the
commencement of such Interest Period if such Eurodollar Loan is
not then outstanding. On the last day of each Interest Period
relating to each such Eurodollar Loan of such Bank, the Company
shall pay directly to such Bank such additional interest. Once
given, each such notice by a Bank shall be deemed automatically
to continue in effect and apply to all of such Bank's Eurodollar
Loans until such Bank revokes such notice. At such time, if any,
as such Bank shall not be required so to maintain reserves, such
Bank agrees so to notify the Company.
(b) If a Bank reasonably determines that the amount of
capital required or expected to be maintained by such Bank, any
Funding Office of such Bank or any corporation controlling such
Bank attributable to this Agreement, the Loans or its obligation
to make Loans hereunder is increased as a result of a Change (as
hereinafter defined), then, within 15 days of demand by such Bank
(with a copy of such demand to the Applicable Agents), the
Company shall pay such Bank the amount which such Bank determines
is necessary to compensate it for any reduction in the rate of
return on capital to an amount below that which such Bank, such
Funding Office or such corporation could have achieved but for
such Change and is attributable to this Agreement, the Loans or
its obligation to make Loans hereunder. "Change" means (i) any
change after the Effective Date in the Risk-Based Capital
Guidelines (as hereinafter defined) or (ii) any adoption of or
change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive
(whether or not having the force of law) after the Effective Date
which affects the amount of capital required or expected to be
maintained by any Bank or any Funding Office or any corporation
controlling any Bank or (iii) 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 (iv) compliance by any Bank (or any
Funding Office or corporation of any Bank) with any request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines
in effect in the United States on the Effective Date, including
transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices entitled
"International Convergence of Capital Measurements and Capital
Standards," including transition rules, and any amendments to
such regulations adopted prior to the Effective Date.
9.2 Increased Costs. If (i) Regulation D, or (ii)
after the Effective Date, the adoption of, 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 any Funding Office of such Bank) with any request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, whether or not
having the force of law,
(a) shall subject any Bank (or any Funding Office
of such Bank) to any tax, duty or other charge with
respect to its Fixed Rate Loans, its Notes, or its
obligation to make Fixed Rate Loans, or shall change
the basis of taxation of payments to any Bank (or any
Funding Office of such Bank) of the principal of or
interest on its Fixed Rate Loans owed to it or any
other amounts due under this Agreement in respect of
its Fixed Rate Loans, its Notes, or its obligation to
make Fixed Rate Loans (except for changes in the rate
of tax on the overall net income of such Bank or its
Funding Office imposed by the government or other
authority of the country in which such Bank is
incorporated or in which such Bank's Funding Office is
located); or
(b) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve
imposed by the Board of Governors of the Federal
Reserve System, but excluding any reserve included in
the determination of interest rates pursuant to
Section 6), special deposit, capital adequacy, minimum
capital, capital ratio, deposit insurance or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or any
Funding Office of such Bank); or
(c) shall impose, modify or deem applicable any
capital adequacy or similar requirement on any Bank; or
(d) shall impose on any Bank (or any Funding
Office of such Bank) any other condition affecting its
Fixed Rate Loans or its Notes or its obligation to make
or maintain Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to
(or in the case of Regulation D, to impose an additional cost on)
such Bank (or any Funding Office of such Bank) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of any
sum received or receivable by such Bank (or such Bank's Funding
Office) under this Agreement or under its Notes with respect
thereto, or to reduce the rate of return on such Bank's capital
to a level below that which such Bank could have achieved but for
such adoption or compliance (taking into consideration such
Bank's policies with respect to capital adequacy) by an amount
which such Bank determines to be material, then within 10 days
after demand by such Bank (which demand shall be accompanied by a
statement setting forth the basis of such demand), the Company
shall pay directly to such Bank such additional amount or amounts
as will compensate such Bank for such increased cost or such
reduction.
Each Bank promptly shall notify the Company and the
Administrative Agent of any event of which it has knowledge,
occurring after the Effective Date, which will entitle such Bank
to compensation pursuant to this Section 9.2 and will designate a
different Funding Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in
such Bank's sole judgment, be otherwise disadvantageous to such
Bank.
9.3 Basis for Determining Interest Rate Inadequate or
Unfair. If with respect to any Interest Period:
(a) the Reference Banks advise the Administrative
Agent that deposits in Dollars (in the applicable
amounts) are not being offered by the Reference Banks
in the relevant market for such Interest Period, or the
Administrative Agent otherwise determines (which
determination shall be binding and conclusive on all
parties) that, by reason of circumstances affecting the
London interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining the
applicable Eurodollar Rate; or
(b) the Required Banks (or any Bank scheduled to
make a Negotiated Loan) advise the Administrative Agent
or the Negotiated Loan Agent, as the case may be,
that, as determined by the Administrative Agent or such
Bank, the Eurodollar Rate, in the case of Eurodollar
Loans, or the negotiated rate, in the case of a
Negotiated Loan, will not adequately and fairly reflect
the cost to the Required Banks (or such Bank) of
maintaining or funding Eurodollar Loans or Negotiated
Loans for such Interest Period, or that the making or
funding of Eurodollar Loans or Negotiated Loans has
become impracticable as a result of an event occurring
after the Effective Date which in such Required Banks'
(or such Bank's) opinion materially affects such
Eurodollar Loans or Negotiated Loans,
then so long as such circumstances shall continue: (i) the
Administrative Agent promptly shall notify the Company and the
Banks thereof, (ii) in the case of Eurodollar Loans, no Bank
shall be under any obligation to make Eurodollar Loans or to
Continue any Loan as, or Convert any Loan to, a Eurodollar Loan,
and (iii) in the case of Negotiated Loans, such Bank shall be
under no obligation to make any Negotiated Loan, irrespective of
any previous acceptance of any Negotiated Loan Confirmation.
9.4 Changes in Law Rendering Certain Loans Unlawful.
In the event that any change in (including the adoption of any
new) applicable laws or regulations, or in the interpretation of
applicable laws or regulations by any governmental or other
regulatory body charged with the interpretation or administration
thereof, would, in any Bank's opinion, make it unlawful for such
Bank to make, maintain or fund Fixed Rate Loans, then (a) such
Bank shall promptly notify each of the other parties hereto, (b)
all Banks' obligations (if any) to make any Fixed Rate Loan made
unlawful for such Bank shall, upon the effectiveness of such
event, be suspended for the duration of such unlawfulness, and
(c) on the last day of the then current Interest Period for each
such Fixed Rate Loan (or, in any event, if such Bank so requests,
on such earlier date as may be required by the relevant law,
regulation or interpretation), such Fixed Rate Loan shall be
repaid in full, together with accrued interest and any amounts
payable under Section 9.5.
9.5 Funding Losses. The Company hereby agrees that
upon demand by any Bank (which demand shall be accompanied by a
statement setting forth the basis for the calculations of the
amount being claimed) the Company will indemnify such Bank
against any net loss or expense which such Bank may sustain or
incur (including, without limitation, any net loss or expense
incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Bank to fund or maintain Fixed
Rate Loans), as reasonably determined by such Bank, as a result
of (a) any payment or mandatory or voluntary prepayment
(including, without limitation, any payment resulting from an
acceleration upon the occurrence of any Event of Default or
Change of Control) of any Fixed Rate Loan of such Bank on a date
other than the last day of such Loan's Interest Period, (b) any
Conversion of any Eurodollar Loan on a date other than the last
day of such Loan's Interest Period, or (c) any failure of the
Company to borrow, Continue or Convert any Loans on the
originally scheduled date specified therefor pursuant to this
Agreement (including, without limitation, any failure to borrow
resulting from any failure to satisfy the conditions precedent to
such borrowing). For this purpose, all notices to the
Administrative Agent or the Negotiated Loan Agent pursuant to
this Agreement shall be deemed to be irrevocable.
9.6 Discretion of Banks as to Manner of Funding.
(a) Notwithstanding any other provision of this
Agreement to the contrary, each Bank shall be entitled to fund
and maintain its funding of all or any part of its Loans in any
manner it sees fit; it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be
made as if such Bank had actually funded and maintained each
Fixed Rate Loan during the Interest Period for such Loan through
the purchase of deposits having a maturity (and in the case of
Eurodollar Loans, bearing interest at the Eurodollar Rate)
corresponding to such Interest Period.
(b) The Company shall not be obligated under this
Agreement to make any greater payment to any Bank which changes
any Funding Office than such Bank would have been entitled to
receive if such Funding Office had not been changed, unless such
Funding Office was changed (i) with the Company's prior written
consent, (ii) at the Company's request, (iii) to mitigate or
avoid the suspension of such Bank's obligations or the
requirement of payment of increased costs in the circumstances
contemplated by Section 9.1(a), 9.2, 9.3 or 9.4, or (iv) at a
time when the circumstances giving rise to such greater payment
did not exist.
9.7 Conclusiveness of Statements; Survival of
Provisions. Determinations and statements of any Bank pursuant
to Sections 9.1 through 9.6 shall be conclusive absent manifest
error, and the provisions of Sections 9.1 through 9.6 shall
survive termination of this Agreement and payment of the Notes.
9.8 Negotiated Loans. The provisions of Sections 9.1
through 9.6 shall not apply to any Negotiated Loan to the extent
that the related Negotiated Loan Confirmation expressly so
provides.
SECTION 10 REPRESENTATIONS.
To induce the Banks to enter into this Agreement and to
make Loans hereunder, the Company hereby makes the following
representations and warranties to the Agents and the Banks:
10.1 Organization, etc. The Company is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Illinois; each Subsidiary is a corporation
duly organized, validly existing and in good standing under the
laws of the state of its respective incorporation; and each of
the Company and each Subsidiary is duly qualified and in good
standing as a foreign corporation authorized to do business in
each jurisdiction where, because of the nature of its activities
or properties, such qualification is required and the failure so
to qualify would have a material adverse effect on the business,
credit, operation, financial condition or prospects of the
Company and its Restricted Subsidiaries taken as a whole.
10.2 Authorization; No Conflict. The execution,
delivery and performance of this Agreement and the Notes, and the
borrowings hereunder, (i) are within the Company's corporate
powers, (ii) have been duly authorized by all necessary corporate
action, (iii) do not require any governmental approval which has
not been previously obtained (and each such governmental approval
that has been previously obtained remains effective), (iv) do not
and will not contravene or conflict with any provision of law, or
of any judgment, decree or order, or of the Company's charter or
by-laws, and (v) do not and will not contravene or conflict with,
or cause any Lien to arise under, any provision of any agreement
binding upon the Company, any Subsidiary or any of their
respective properties.
10.3 Validity and Binding Nature. This Agreement is,
and the Notes when duly executed and delivered by the Company
will be, legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their
respective terms, except as such enforcement may be limited by
the application of bankruptcy, moratorium, reorganization or
other laws affecting the rights of creditors generally or by
general principles of equity (whether or not a proceeding is
brought in a court of law or equity).
10.4 Financial Statements.
(a) The Company has furnished to the Banks true and
correct copies of the Company's audited consolidated financial
statements as at January 1, 1994, and its unaudited consolidated
financial statements as at July 2, 1994. Such financial
statements have been prepared in conformity with GAAP (subject to
normal year-end audit adjustments in the case of such unaudited
consolidated financial statements, and subject to the information
set forth in the footnotes to such audited consolidated financial
statements), and fairly present the financial condition of the
Company and its Subsidiaries as at such dates and the results of
their operations for the periods then ended.
(b) Since either of the dates of the financial
statements referred to in Section 10.4(a), there has been no
material adverse change in the business, credit, operations,
financial condition or prospects of the Company and its
Subsidiaries taken as a whole.
10.5 Litigation and Contingent Liabilities. No
Material Litigation is pending or, to the Company's knowledge,
threatened against the Company except as set forth in Schedule II
or as set forth in the 10-K Report of the Parent for the fiscal
year ended January 1, 1994, or the 10-Q Report of the Parent for
the period ended July 2, 1994, all as filed with the SEC. Other
than any liability incident to such Material Litigation, neither
the Company nor its Subsidiaries have any material contingent
liabilities not provided for or disclosed in the financial
statements referred to in Section 10.4.
10.6 Title to Property. The Company and its
Subsidiaries own and hold, with respect to material real
property, good and marketable title, and with respect to other
material property, good and valid title, to their respective
assets and property reflected in the financial statements
referred to in Section 10.4 or acquired since such dates (other
than assets and property sold or disposed of in the ordinary
course of business), free and clear of any Lien except those
referred to in Section 10.7 or permitted under Section 11.2.
10.7 Liens. None of the assets of the Company or any
Subsidiary is subject to any Lien, except Liens shown in the
financial statements referred to in Section 10.4 or in
Schedule III or permitted under Section 11.2.
10.8 Subsidiaries. The Company has no Subsidiaries or
Restricted Subsidiaries, as the case may be, except those listed
in Schedule IV.
10.9 Plans and Welfare Plans. No steps have been
instituted to terminate any Plan, no contribution failure has
occurred with respect to any Plan sufficient to give rise to a
lien under section 302(f) of ERISA, and no Plan has incurred an
"accumulated funding deficiency" within the meaning of section
412 of the Code or Part 3 of Title I of ERISA. To the best of
the Company's knowledge, no condition exists or event or
transaction has occurred in connection with any Plan which is
reasonably likely to have a material adverse effect on the
business or financial condition of the Company and its ERISA
Affiliates taken as a whole. Neither the Company nor any ERISA
Affiliate has any material contingent liability with respect to
any post-retirement benefit under a Welfare Plan, except for
liability for continuation coverage described in Part 6 of
Title I of ERISA, and except as listed on Schedule V.
10.10 Investment Company Act. The Company is neither
an "investment company" nor a company "controlled" by an
"investment company", within the meaning of the Investment
Company Act of 1940, as amended.
10.11 Public Utility Holding Company Act. Neither the
Company nor any Subsidiary is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
10.12 Regulations G, U and X. The Company is not
engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or
carrying Margin Stock. None of the Company, the Parent, any
Affiliate of either of them or any Person acting on their behalf
has taken or will take action to cause the execution, delivery or
performance of this Agreement, the Notes, the making of the Loans
or the use of proceeds of the Loans to violate Regulation G, U or
X of the Board of Governors of the Federal Reserve System.
10.13 Labor Controversies. There are no labor
controversies pending or threatened against the Company or any of
its Subsidiaries which, if adversely determined, would materially
and adversely affect the business, credit, operations, financial
condition or prospects of the Company and its Subsidiaries, taken
as a whole.
10.14 Tax Status.
(a) All tax returns, reports and forms required to be
filed with any domestic or foreign taxing authority in connection
with any activities or assets of the Company or any Subsidiary
have been filed, except where the failure to file any such
return, report or form would not have any material adverse effect
on the business or financial condition of the Company and its
Subsidiaries taken as a whole.
(b) All taxes required to be paid with respect to the
activities or assets of the Company and its Subsidiaries have
been duly paid or provisions deemed appropriate were made by the
Parent and/or the Company and its Subsidiaries, on the books and
records therefor, except such amounts (i) as are contested in
good faith and as to which adequate reserves in accordance with
GAAP were provided by the Company in accordance with the best
estimates of ultimate liability by the entity responsible
therefor or (ii) the non-payment of which would not have a
material adverse effect on the business or financial condition of
the Company and its Subsidiaries taken as a whole.
(c) It is recognized and acknowledged by the Banks
that, from 1976 through June 22, 1988, for federal income tax
purposes the Company and its Subsidiaries were members of the
affiliated group of which Mobil Corporation ("Mobil"), the
Company's ultimate parent corporation during such period, was the
common parent, and the income of the Company and its Subsidiaries
were included in the consolidated federal income tax returns of
Mobil for such period. All filings and payments with respect to
such period have been made directly by Mobil, and all refunds
with respect thereto have been paid directly to Mobil; and the
Company and its Subsidiaries have made and received payments with
respect to such taxes under tax sharing agreements with Mobil
and/or a Subsidiary thereof. Accordingly, all representations
and warranties made in Sections 10.14(a) and 10.14(b) with
respect to federal income taxes as they relate to such period are
qualified to the best of the Company's general knowledge of
Mobil's practices and procedures. To the best of its knowledge,
the Company has made all payments which are now due to Mobil
under such tax sharing agreements.
10.15 No Default. No event has occurred and no
condition exists which, upon the execution and delivery of this
Agreement or upon the funding of any Loan, will constitute an
Event of Default or Unmatured Event of Default.
10.16 Compliance with Applicable Laws. To the best of
the Company's knowledge, the Company and its Subsidiaries are in
compliance with the requirements of all applicable laws, rules,
regulations and orders of all governmental authorities (Federal,
state, local or foreign, and including, without limitation,
employee benefit, environmental and health and safety laws,
rules, regulations and orders), a breach of which would
materially and adversely affect the business, credit, operations,
financial condition or prospects of the Company and its
Subsidiaries taken as a whole.
knowledge, neither the Company nor any of its Subsidiaries has
failed to obtain any licenses, permits, franchises or other
governmental authorizations necessary to the ownership of its
respective properties or to the conduct of its respective
business, which violation or failure to obtain might materially
and adversely affect the business, credit, operations, financial
condition or prospects of the Company and its Subsidiaries taken
as a whole.
10.18 Purpose. The purpose of the Loans shall be:
(a) to repay loans under the Existing Credit Agreements; (b) for
capital expenditures; and (c) for working capital and other
general corporate purposes of the Company.
SECTION 11 COVENANTS.
From the Effective Date until the expiration or
termination of all of the Banks' Commitments, and thereafter
until payment in full of all Liabilities, the Company agrees
that, unless at any time the Required Banks shall otherwise
expressly consent in writing, it will:
11.1 Reports, Certificates and Other Information.
Furnish or cause to be furnished to each Bank:
(a) Audit Report. Within 105 days after each
Fiscal Year, a copy of an annual audit report of the
Company and its Subsidiaries prepared on a consolidated
basis and in conformity with GAAP duly certified by
independent certified public accountants of recognized
standing selected by the Company, together with a
letter from such accountants as provided in Section
11.1(d) below.
(b) Interim Reports. Within 60 days after each
Fiscal Quarter (except the last Fiscal Quarter in a
Fiscal Year), a copy of the unaudited consolidated
financial statements of the Company and its
Subsidiaries prepared in accordance with GAAP (subject
to normal year end audit adjustments) consisting of at
least a balance sheet as at the close of such Fiscal
Quarter, statements of earnings for such Fiscal Quarter
and for the period from the beginning of such Fiscal
Year to the close of such Fiscal Quarter, and a
statement of changes in cash flow from the beginning of
such Fiscal Year to the close of such Fiscal Quarter.
(c) Officer's Certificate. Contemporaneously
with the furnishing of a copy of each annual audit
report and of each set of quarterly statements provided
for in this Section 11.1, a certificate in the form of
Exhibit I, duly completed, dated the date of such
annual report or such quarterly statements and signed
by an Authorized Officer on behalf of the Company to
the effect that, to the best of such Authorized
Officer's knowledge, no Event of Default or Unmatured
Event of Default has occurred, and is continuing, or,
if there is any such event, describing it and the
steps, if any, being taken with respect thereto, and
containing the computations and other information
provided for therein.
(d) Accountant's Letter. Contemporaneously with
the furnishing of the Company's annual audit report
under Section 11.1(a), a letter from the Company's
certified public accountants addressed to each Agent
and each Bank (i) stating that such accountants have
not become aware of any Event of Default or Unmatured
Event of Default pertaining to accounting matters (or,
if there is any such event, describing it and the
steps, if any, being taken with respect thereto), (ii)
stating that such accountants have been informed that a
primary intent of the Company was for the professional
services such accountants provided to the Company in
preparing the Company's audit report to benefit or
influence the Agents and the Banks, and identifying
each Agent and each Bank as a party that the Company
has indicated intends to rely on such professional
services provided to the Company by such accountants
and (iii) containing a computation of the financial
tests in Sections 11.3, 11.4 and 11.5.
(e) Reports to SEC and to Shareholders. Promptly
within 15 days of the filing or making thereof, copies
of each filing and report made by the Parent, the
Company or any Subsidiary with or to the SEC or any
other securities exchange, and, if the Company shall
have registered under the Securities Exchange Act of
1934, as amended, as to any of the Company's equity
securities, copies of each communication from the
Company to shareholders generally.
(f) Notice of Default. Forthwith upon learning
of the occurrence of an Event of Default or Unmatured
Event of Default, written notice thereof describing the
same and the steps (if any) being taken by the Company
and its Subsidiaries with respect thereto.
(g) Notice of Certain Litigation. Written notice of
the institution of any Litigation or the occurrence of any
development with respect to any Litigation, together with a
description thereof and the steps being taken by the Company
and its Subsidiaries with respect thereto, all to such
extent and at such time as the Company would be required to
make such disclosure if the Company were a public reporting
company under the Securities Exchange Act of 1934, as
amended (it being understood that to the extent such
disclosures are contained in the reports filed by the
Company's Parent with the SEC, then the disclosure hereunder
required to be made by the Company to the Banks may be made
by furnishing to the Banks a copy of such reports of the
Parent as filed with the SEC).
(h) Notice of Change of Control. Forthwith upon
learning of the occurrence of any Change of Control, written
notice thereof, describing the same and the steps (if any)
being taken by the Company and its Subsidiaries with respect
thereto.
(i) Amendments. Promptly upon any amendment or
modification, whether or not material, to the MWCC
Receivables Purchase Agreement, a copy thereof
certified as true and correct by an Authorized Officer
on behalf of the Company.
(j) Other Information. From time to time such
other information concerning the Company and its
Subsidiaries as any Bank or any Agent may reasonably
request.
11.2 Liens. Not, and not permit any Restricted
Subsidiary to, create, incur, assume or permit to exist any Lien
with respect to any assets now owned or hereafter acquired,
except the following (each, a "Permitted Lien"):
(i) Liens arising in connection with a financing
or refinancing of every description (including, without
limitation, sale-leaseback transactions and secured
borrowings) of any real estate (including leasehold
interests) or tangible fixed assets acquired or
constructed by the Company or a Restricted Subsidiary
after January 1, 1994, and attaching only to the
property so acquired or constructed and the rights and
documents related thereto,
(ii) Liens existing on the Effective Date as set
forth on Schedule III or shown in the financial
statements referred to in Section 10.4,
(iii) Liens on customer receivables and proceeds
thereof,
(iv) Liens for current taxes, assessments or
other charges not delinquent or for taxes, assessments
or other charges being contested in good faith and by
appropriate proceedings and with respect to which the
Company has provided for and is maintaining adequate
reserves in accordance with GAAP,
(v) any Lien in the nature of an easement, grant,
license, permit, reservation, agreement, undertaking,
restriction or condition with respect to cables, pipes,
wires, telephone or telegraph poles, sewers, railroad
tracks or other public utility purposes or roads, walks
or other rights-of-way or for joint or common use of
real properties or facilities, including any reciprocal
construction, operating and easement agreement, or any
other similar encumbrance, including, but not limited
to, any lease, sublease, easement, grant or license to
use or restriction on the right to use, which in any
case in the opinion of the Company does not materially
impair the usefulness of the property or the asset in
question in the conduct of the business and operations
of the Company or the Restricted Subsidiary which owns
such property or asset,
(vi) Liens of carriers, warehousemen, mechanics,
materialmen, vendors, landlords and similar Liens
incurred in the ordinary course of business for sums
not due or sums being contested in good faith and by
appropriate proceedings,
(vii) rights of lessees, sublessees or assignees
of the Company or a Restricted Subsidiary with respect
to assets of the Company or such Restricted Subsidiary
so leased, sublet or assigned,
(viii) Liens on goods acquired pursuant to the
issuance of letters of credit, provided that such Liens
shall only secure the reimbursement obligations or
other amounts to be paid under the agreement with the
issuer or an Affiliate of the issuer of such letters of
credit,
existing at the time such Subsidiary becomes a
Restricted Subsidiary,
(x) Liens in favor of the Company or any
Restricted Subsidiary,
(xi) Liens arising in the ordinary course of
business for sums not due or sums being contested in
good faith and by appropriate proceedings, but not
involving any deposits or advances or indebtedness for
borrowed money or the deferred purchase price of
property or services,
(xii) Liens in favor of the Agents (or any of
them) or the Banks in their capacity as agents or
lenders under this Agreement or the Short Term Credit
Agreement, provided that such Liens shall ratably
secure all loans under this Agreement and the Short
Term Credit Agreement,
(xiii) Liens arising under capital leases and
attaching only to the property leased thereunder,
(xiv) Liens granted to landlords or to any
landlord's mortgagee in the Company's or any Restricted
Subsidiary's sublessor's interest in a sublease to
secure a consent to such sublease or an agreement to
execute a non-disturbance agreement in favor of the
sublessee thereunder from such landlord or landlord's
mortgagee,
(xv) any Lien arising out of a judgment or award
against the Company or any Restricted Subsidiary with
respect to which the Company or such Restricted
Subsidiary shall in good faith be prosecuting an appeal
or proceeding for review or any Lien incurred by the
Company or any Restricted Subsidiary for the purpose of
obtaining a stay or discharge in the course of any
legal proceeding to which the Company or such
Restricted Subsidiary is a party,
Restricted Subsidiary to exercise any privilege or
license, to secure the performance of any bid, tender,
contract or lease to which the Company or such
Restricted Subsidiary is a party, to secure any public
or statutory obligation of the Company or any
Restricted Subsidiary or to secure any safety, stay or
appeal bond to which the Company or any Restricted
Subsidiary is a party, or any other similar Lien made
in the ordinary course of business,
(xvii) any Lien on the obligation of the Company
or any Restricted Subsidiary under any lease or other
document related to the operation, use or occupancy of
real or personal property, or in any guaranty by the
Company or any Restricted Subsidiary of the obligation
of any person or entity under any lease or other
document related to the operation, use or occupancy of
real or personal property,
(xviii) other non-material Liens incurred in the
ordinary course of business (including those in
connection with obligations to pay workmen's
compensation or unemployment insurance, performance
bonds, security deposits and the like), and
(xix) additional Liens securing Secured
Indebtedness (as defined below), if as a result of the
transaction giving rise to any such Liens (and after
giving effect thereto on a pro forma basis) the
aggregate amount of the (i) Secured Indebtedness of the
Company and its Restricted Subsidiaries and (ii)
(without double-counting) Indebtedness for Borrowed
Money of the Restricted Subsidiaries but only in each
case incurred subsequent to the Effective Date in a
transaction which gave rise to Liens other than
Permitted Liens described in the preceding clauses (i)
through (xviii) inclusive) is less than or equal to 1%
of the total assets of the Company and its Restricted
Subsidiaries as of the end of the last full Fiscal
Quarter preceding such transaction. For purposes
hereof, "Secured Indebtedness" means any Indebtedness
for Borrowed Money or other indebtedness incurred in
connection with the acquisition of property, which
Indebtedness for Borrowed Money or other indebtedness
is secured by a Lien of or upon any property or asset
of the Company or any Restricted Subsidiary.
provided, however, with respect to the preceding clauses (i)
through (xix) inclusive,
(a) neither the Company nor any Restricted Subsidiary
shall permit to exist any Lien securing notes or obligations
payable or owing by the Company pursuant to the MWCC
Receivables Purchase Agreement except (x) to the extent
provided therein or (y) to the extent of clauses (xi) and
(xv), and
(b) none of such Liens shall encumber any inventory of
the Company or its Restricted Subsidiaries or secure trade
debt of the Company or its Restricted Subsidiaries except to
the extent of clauses (ii), (viii), (ix), (x), (xi), (xii),
(xiv), (xv), (xix) and to the extent such Lien is a
possessory Lien which arises by operation of law, clause
(vi); provided that Liens on inventory or securing trade
debt under clause (xix) shall not exceed $5,000,000 or the
amount permitted under clause (xix) whichever is less.
11.3 Minimum Consolidated Shareholder's Equity. Not
permit the Consolidated Shareholder's Equity of the Company as at
the end of each Fiscal Year to be less than the lesser of (i)
$441,000,000 minus the FAS 106 Minimum Equity Factor plus 25% of
Consolidated Net Income for each complete Fiscal Year after the
Company's Fiscal Year ended January 1, 1994 in which there was
such income, and (ii) $800,000,000 minus the FAS 106 Minimum
Equity Factor; provided, however, that if the Ratio of Earnings
to Fixed Charges determined as of the last day of any Fiscal
Quarter shall be less than 1.10:1, then the Company shall not
permit Consolidated Shareholder's Equity at the end of the next
Fiscal Quarter to be less than the lesser of (x) $537,000,000
plus 50% of Consolidated Net Income for each complete Fiscal Year
ended after January 1, 1994 in which there was such income, plus
50% of cumulative Consolidated Net Income for any incomplete
Fiscal Year (to the extent there was such income) through the end
of the most recently completed Fiscal Quarter and (y)
$1,000,000,000.
11.4 Ratio of Debt to Total Capitalization. Not
permit (i) Debt of the Company and its Restricted Subsidiaries to
exceed 60% of Total Capitalization as of the last day of each of
the first three Fiscal Quarters of each Fiscal Year, or (ii) Debt
of the Company and its Restricted Subsidiaries to exceed 50% of
Total Capitalization as of the last day of each Fiscal Year.
11.5 Purchase or Redemption of the Company's
Securities; Dividend Restrictions; Payments to the Parent. Not
(a) declare or pay any dividend or make any distribution on any
capital stock of the Company to its stockholders (other than
dividends or distributions payable in shares of capital stock of
the Company or stock splits), (b) make any loans or advances to
the Parent, (c) purchase or redeem or otherwise acquire or retire
for value any shares of capital stock of the Company, or (d)
permit any Subsidiary to purchase, redeem or otherwise acquire
for value any shares of capital stock of the Company (each such
payment described in any of the foregoing clauses (a), (b), (c)
and (d) a "Restricted Payment"), if, upon giving effect thereto,
the sum of such dividends, distributions, purchases, redemptions
and other acquisitions and retirements (other than dividends,
distributions, purchases, redemptions and other acquisitions or
retirements of Debt-Like Preferred Stock of the Company), paid or
made subsequent to January 1, 1994, would exceed the aggregate
of:
(i) $63,000,000; plus
(ii) 50% (or minus 100% in case of any deficit)
of Consolidated Net Income for the period,
taken as one accounting period, from and
including January 2, 1994 to the end of the
most recent full Fiscal Quarter; plus
(iii) any repayment by the Parent of any loan or
advance made by the Company to the Parent
which repayment is received after January 1,
1994; plus
(iv) any capital contributions received by the
Company after January 1, 1994; plus
(v) the net proceeds to the Company (in cash or,
if the consideration is other then cash, the
fair value thereof as determined by the
Board of Directors of the Company) of the
issue or sale after January 1, 1994 of
capital stock, including treasury stock but
excluding Debt-Like Preferred Stock, of the
Company; plus
(vi) an amount equal to the net proceeds to the
Company (in cash or, if the consideration is
other than cash, the fair value thereof as
determined by the Board of Directors of the
Company) from the issue or sale at any time
of any indebtedness of the Company or a
Subsidiary which, after January 1, 1994, is
converted into shares of capital stock (but
excluding Debt-Like Preferred Stock) of the
Company or the Parent; plus
(vii) an amount equal to the FAS 106 Restricted
Payment Factor;
provided, however, that:
(x) the Company shall not make any such Restricted
Payment if before or after giving effect thereto an Event of
Default or Unmatured Event of Default shall exist;
(y) notwithstanding the foregoing, so long as no Event
of Default or Unmatured Event of Default shall exist before
or after giving effect thereto, the Company may (i) declare
or pay any dividend or make any distribution within 60 days
after the date of its declaration, if on such date such
declaration did not violate the provisions of Section
11.5(a), and (ii) pay amounts to the Parent to permit the
Parent to pay its corporate and business expenses in an
aggregate amount for all such payments not to exceed
$2,000,000 per Fiscal Year (with any amounts not so used in
a given Fiscal Year carried over and added to the amount
permissible to be paid in the next Fiscal Year); and
(z) notwithstanding the foregoing, the Company may pay
amounts required to be paid pursuant to any tax sharing or
tax allocation arrangements meeting the standards specified
in Schedule VI.
11.6 Mergers, Consolidations, Sales. Not permit any
consolidation of the Company with or merger of the Company into
any other corporation or corporations (whether or not affiliated
with the Company) or successive consolidations in which the
Company or its successor or successors shall be a party or
parties or any sale or conveyance of the property of the Company
as an entirety or substantially as an entirety, to any other
corporation (whether or not affiliated with the Company)
authorized to acquire and operate the same (any such
consolidation, merger, sale or conveyance is referred to herein
as a "Corporate Transaction") unless each of the following
conditions is met:
(i) to the extent that as a result of such
Corporate Transaction, any property of the Company or a
Restricted Subsidiary immediately prior thereto would
be subjected to any Lien of any other party to such
Corporate Transaction, simultaneously with such
Corporate Transaction or prior thereto, effective
provision shall be made for securing (equally and
ratably with any other indebtedness of or guaranteed by
the Company then entitled thereto) the due and punctual
payment of the Liabilities by a prior Lien upon such
asset;
(ii) upon the occurrence of any such Corporate
Transaction all the obligations of the Company under
this Agreement and the Notes shall be expressly assumed
in writing by the corporation formed by such
consolidation, or into which the Company shall have
been merged, or by the corporation which shall have
acquired such property (in each such case, the
"surviving entity"), such assumption to be accompanied
by an opinion of counsel for the surviving entity to
the effect that such assumption has been duly
authorized, executed and delivered by, and is the
legal, valid and binding obligation of, the surviving
entity;
(iii) immediately after giving effect to such
Corporate Transaction and to the retirement of any Debt
to be retired substantially concurrently therewith, no
Event of Default or Unmatured Event of Default shall
have occurred and be continuing, and the Company shall
deliver a certificate signed by an Authorized Officer
to such effect;
(iv) the surviving entity shall be domiciled in
the United States;
(v) after giving effect to such Corporate
Transaction and to the retirement of any Debt to be
retired substantially concurrently therewith on a pro
forma basis (calculated using financial information for
each party to such Corporate Transaction from such
party's most recently ended fiscal quarter), the ratio
(expressed as a percent) of Debt to Total
Capitalization for the surviving or successor party
shall not exceed (a) 60% in the case where the most
recently ended fiscal quarter for the Company was one
of the first three Fiscal Quarters of a Fiscal Year or
(b) 50% in the case where the most recently ended
fiscal quarter for the Company was the last Fiscal
Quarter of a Fiscal Year;
(vi) the Company shall have given at least 30
days' prior written notice of such Corporate
Transaction to the Agents and the Banks; and
(vii) after giving effect to such Corporate
Transaction, no Change of Control shall exist.
Upon consummation of the Corporate Transaction and the assumption
of the Company's obligations under this Agreement by the
surviving entity, such surviving entity shall succeed to and be
substituted for the Company, with the same effect as if it were
an original party to this Agreement and, in the event of any such
sale or conveyance, the Company shall be released from its
obligations under this Agreement. Except for the merger of any
Restricted Subsidiary into the Company or another Restricted
Subsidiary, the Company shall not permit any Restricted
Subsidiary to be a party to any Corporate Transaction if before
or after giving effect thereto an Event of Default or Unmatured
Event of Default shall exist.
11.7 Compliance with Applicable Laws. Not, and not
permit any of its Subsidiaries to, knowingly violate in any
material respect any of the requirements of all applicable laws,
rules, regulations, and orders of any governmental authority
(Federal, state, local or foreign, and including, without
limitation, employee benefit, environmental, health and safety
laws, rules, regulations and orders); provided, however, that any
material breach by the Company or any of its Subsidiaries of any
employee benefit, environmental, health or safety order, rule or
regulation shall not be deemed a breach of this Section 11.7 so
long as such violation would not be likely to prevent the Company
from performing its obligations under this Agreement and the
Company or such Subsidiary, upon notice of such violation, takes
appropriate action to cure such violation.
11.8 ERISA. (a) Forthwith upon learning of (i) the
incurrence of any material liability of the Company or any ERISA
Affiliate pursuant to Title IV of ERISA in connection with the
termination of any Plan or withdrawal or partial withdrawal from
any Multiemployer Plan , (ii) a failure to satisfy the minimum
funding standards of section 412 of the Code or Part 3 of Title I
of ERISA by any Plan for which the Company or any ERISA Affiliate
is plan administrator (as defined in ERISA), (iii) the receipt of
a notice by any Plan that the PBGC intends to terminate or apply
for the appointment of a trustee to administer the Plan, (iv) the
receipt of a notice of complete or partial withdrawal liability
under Title IV of ERISA from a Multiemployer Plan or a notice
that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, (v) the application for a waiver of the
minimum funding standard under section 412 of the Code, (vi) the
filing of a notice of intent to terminate a Plan under section
4041(c) of ERISA, or (vii) notice of withdrawal from any Plan
pursuant to section 4063 of ERISA, furnish or cause to be
furnished to each Bank written notice thereof.
(b) Not, and not permit any of its Subsidiaries to,
permit (i) any Plan to incur any "accumulated funding deficiency"
(within the meaning of Part 3 of Title I of ERISA or section 412
of the Code) or (ii) any Plan for which the Company or any ERISA
Affiliate is plan administrator (as defined in ERISA) to fail to
satisfy the minimum funding standards of section 412 of the Code
or Part 3 of Title I of ERISA.
11.9 Corporate Existence and Franchises. Except as
otherwise expressly permitted in Section 11.6, maintain in full
force and effect its separate existence and all material rights,
licenses, leases and franchises used in the conduct of its
business.
11.10 Maintenance of Tangible Property. Maintain, and
cause each of its Subsidiaries to maintain, in all material
respects all of the real property, inventory and equipment owned,
leased or used by such entity in good condition and repair, and
prevent any waste or unusual or unreasonable depreciation
thereof.
11.11 Maintenance of Intangible Property. Protect,
preserve and maintain, and cause each of its Subsidiaries to
protect, preserve and maintain, in all material respects all of
its material trademarks and trade names in full force and effect,
by, without limitation, defending against and/or prosecuting at
its own expense any and all suits claiming infringement or
dilution of any thereof or injury to the goodwill associated with
any thereof and by filing any applications and doing any and all
other things which may from time to time be necessary or
advisable for the renewal or registration of each thereof.
11.12 Books, Records and Inspections. Maintain, and
cause each Subsidiary to maintain, complete and accurate books
and records; permit, and cause each Subsidiary to permit,
reasonable access by each Agent and each Bank to the books and
records of the Company and of each Subsidiary during regular
business hours upon two Business Days' prior written notice to
the Company; and permit, and cause each Subsidiary to permit,
each Agent and each Bank to inspect the properties and operations
of the Company and of such Subsidiary during regular business
hours upon two Business Days' prior written notice to the
Company.
11.13 Insurance. Maintain, and cause each Subsidiary
to maintain, such insurance upon its real property, inventory and
equipment (including self-insurance to the extent of, and in a
manner consistent with, the past practices of such entity) to
such extent and against such hazards and liabilities, as is
required by law or customarily maintained by companies similarly
situated.
11.14 Payment of Taxes. Promptly pay, and cause each
Subsidiary to pay, when due all taxes, assessments or other
charges owing by the Company and each Subsidiary except taxes,
assessments and other charges which shall be diligently contested
in good faith by appropriate proceedings and as to which adequate
reserves shall have been set aside in accordance with GAAP.
11.15 Other Agreements. Not (a) enter into any
agreement containing any provision which would be violated or
breached by the performance of its obligations hereunder or under
any instrument or document delivered or to be delivered by it
hereunder or in connection herewith, or (b) permit any Restricted
Subsidiary to enter into any agreement which prohibits in any
material respect such Subsidiary from declaring or paying
dividends or making advances to the Company.
11.16 Regulation U. Not use or permit any proceeds of
the Loans to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing
or carrying Margin Stock.
11.17 Subordinated Debt. With respect to any
Subordinated Debt, not make or effect or permit any Subsidiary to
make or effect any payment, prepayment, redemption, purchase or
defeasance of any such Subordinated Debt if (i) such payment,
prepayment, redemption, purchase or defeasance is prohibited by
the terms of the instrument governing such Subordinated Debt,
(ii) before or after giving effect thereto an Event of Default or
Unmatured Event of Default shall exist, or (iii) immediately
after giving effect thereto and to the substantially concurrent
incurrence or retirement of other Debt and the application of the
proceeds thereof the ratio (expressed as a percent) of Debt of
the Company and its Restricted Subsidiaries to Total
Capitalization exceeds (a) 60% in the case where the most
recently ended Fiscal Quarter was one of the first three Fiscal
Quarters of a Fiscal Year, or (b) 50% in the case where the most
recently ended Fiscal Quarter was the last Fiscal Quarter of a
Fiscal Year.
11.18 Debt-Like Preferred Stock. With respect to any
Debt-Like Preferred Stock, not make any dividend, distribution,
purchase, redemption, acquisition or retirement of any Debt-Like
Preferred Stock if (i) such dividend, distribution, purchase,
redemption, acquisition or retirement is prohibited by the terms
of the instrument governing such Debt-Like Preferred Stock, (ii)
before or after giving effect thereto an Event of Default or
Unmatured Event of Default shall exist, or (iii) immediately
after giving effect thereto and to the substantially concurrent
incurrence or retirement of other Debt and the application of the
proceeds thereof the ratio (expressed as a percent) of Debt of
the Company and its Restricted Subsidiaries to Total
Capitalization exceeds (a) 60% in the case where the most
recently ended Fiscal Quarter was one of the first three Fiscal
Quarters of a Fiscal Year, or (b) 50% in the case where the most
recently ended Fiscal Quarter was the last Fiscal Quarter of a
Fiscal Year.
11.19 Further Assurances. At its sole expense, upon
request of the Administrative Agent, forthwith execute and
deliver, or cause to be executed and delivered to such Agent, in
due form for filing or recording (the Company hereby agreeing to
pay the cost of filing or recording the same in all public
offices deemed necessary by such Agent), such documents, and do
such other acts and things, all as such Agent may from time to
time reasonably request so as to implement the provisions of this
Agreement.
SECTION 12 CONDITIONS. The effectiveness of this
Agreement and each Bank's obligation to make its Loans is subject
to the following conditions:
12.1 Effectiveness of Agreement. This Agreement shall
become effective on such date (the "Effective Date") on which,
unless waived in writing by all of the Banks, each of the
following conditions precedent or concurrent shall be satisfied:
(a) Documents. On or before September 15, 1994,
or such later date as may be agreed to by the Required
Banks, the Documentary Agent shall have received all of
the following, each duly executed and dated the
Effective Date or such other date satisfactory to the
Documentary Agent, in form and substance reasonably
satisfactory to the Documentary Agent and special
counsel to the Banks, and each (except for the Notes,
of which only the originals shall be signed) in
sufficient number of counterparts to provide one for
each Bank:
(i) Credit Agreements. Counterparts of this
Agreement and the Short Term Credit Agreement, whether
on the same or different counterparts, executed by the
Company and all of the Banks (or in the case of any
Bank as to which an executed counterpart shall not have
been so received, telegraphic, telefax, telex or other
written confirmation of execution of a counterpart
hereof by such Bank);
(ii) Notes. One Revolving Note, one
Negotiated Note and one Swing Note of the
Company payable to the order of each Bank;
(iii) Resolutions. Certified copies
of (i) the articles of incorporation and by-
laws of the Company, (ii) resolutions of the
Company's Board of Directors authorizing or
ratifying the execution, delivery,
performance of and borrowings under,
respectively, this Agreement, the Notes, and
any other documents provided for herein or
therein to be executed by the Company and
(iii) all documents evidencing any necessary
corporate action, consents and governmental
approvals (if any) with respect to this
Agreement, the Notes and any other documents
provided for herein or therein to be executed
by the Company;
(iv) Good Standing. Good standing
certificate for the Company issued by the
Secretary of State of Illinois;
(v) Incumbency and Signatures. A
certificate of the Secretary or an Assistant
Secretary of the Company certifying the names
of the officer or officers thereof authorized
to sign this Agreement, the Notes and the
other documents provided for in this
Agreement, together with a sample of the true
signature of each such officer (it being
understood that each Agent and each Bank may
conclusively rely on each such certificate
until formally advised by a like certificate
of any changes therein);
(vi) Opinion of Counsel for the
Company. The opinion of Altheimer & Gray,
counsel for the Company, addressed to the
Agents and the Banks, substantially in the
form of Exhibit J;
(vii) Certificate. A certificate
signed by an Authorized Officer on behalf of
the Company substantially in the form of
Exhibit K to the effect that (i) on the
Effective Date no Event of Default or
Unmatured Event of Default has occurred and
is continuing or shall result from the making
of any Loan on such date, (ii) the Company's
representations and warranties contained in
Sections 10.1 through 10.18 are true and
correct as of the Effective Date with the
same effect as though made on the Effective
Date, and (iii) all of the conditions set
forth in this Section 12.1 have been
satisfied;
(viii) Termination Letter. A letter signed
by an Authorized Officer on behalf of the Company
addressed to each of the agents and the lenders
under the Existing Credit Agreements terminating
as of the Effective Date any and all commitments
of the lenders to make loans thereunder (it being
understood that the Banks hereby waive any
requirement under the Existing Credit Agreements
that the Company give prior notice of the
termination of such commitments); and
(ix) Other. Such other documents as
the Documentary Agent or any Bank may
reasonably request.
(b) Short Term Credit Agreement. The Short Term
Credit Agreement shall have become effective.
Concurrently with the effectiveness of this Agreement, the
Company shall repay in full the principal of and accrued interest
on all loans outstanding and accrued fees under the Existing
Credit Agreements.
12.2 Conditions to Loans. On and after the Effective
Date, each Bank's obligation to make Loans (including the initial
Loan and each subsequent Loan) or for a Continuation or a
Conversion is subject, unless waived in writing by the Required
Banks, to the conditions precedent that:
(a) no Event of Default or Unmatured Event of
Default shall have occurred and be continuing or shall
result from the making of such Loan;
(b) the Company's representations and warranties
contained in Sections 10.1, 10.2, 10.3, 10.4(a), 10.7,
10.10, 10.11, 10.12, 10.15, and 10.18, shall be true
and correct as of the date of such requested Loan,
Continuation or Conversion with the same effect as
though made on the date of such Loan, Continuation or
Conversion; and
(c) such Loan shall not exceed the limits
specified in Section 2.2, 3.2 or 4.2 and no notice of
any such excess shall have been given by the
Administrative Agent.
Each request by the Company for a Loan or for a Continuation or a
Conversion as described in this Section 12.2 shall be deemed to
automatically constitute a representation and warranty by the
Company to the effect that all of the conditions set forth in
this Section 12.2 for the making of such Loan will be fully and
completely satisfied as of the date of, and after giving effect
to, the making of such Loan, Continuation or Conversion.
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT.
13.1 Events of Default. Each of the following shall
constitute an Event of Default under this Agreement:
(a) Non-Payment of Notes and Certain Fees.
Default, and continuance thereof for three Business
Days after notice thereof to the Company by any Agent,
any Bank or the holder of any Note, in the payment when
due of (i) any principal of or interest on any Loan or
(ii) any amount payable under Section 6.5, 6.6 or 6.7.
(b) Non-Payment of Certain Other Amounts under
this Agreement. Default, and continuance thereof for
ten Business Days after notice thereof to the Company
by any Agent, any Bank or the holder of any Note, in
the payment when due of any material amount under this
Agreement (and not constituting an Event of Default
under clause (a) above).
(c) Non-Payment of Finance Obligations. Default
in the payment when due (subject to any applicable
grace period), whether by acceleration or otherwise, of
any Finance Obligation of the Company or any Restricted
Subsidiary or default in the performance or observance
of any obligation or condition with respect to any such
Finance Obligation if (i) the effect of such default is
to accelerate the maturity of any such Finance
Obligation or cause any such Finance Obligation to be
prepaid, purchased or redeemed or (ii) the holder or
holders thereof, or any trustee or agent for such
holders, (x) causes such Finance Obligation to become
due and payable prior to its expressed maturity or to
be prepaid, purchased or redeemed or (y) receives any
payment (other than any payment which was scheduled to
be made prior to the occurrence of such default),
guarantee or security or other concession from or on
behalf of Parent, the Company or any Restricted
Subsidiary or (iii) in case such default is a default
in the payment when due, such default has not been
remedied within five Business Days after notice thereof
to the Company by any Agent, any Bank, the holder of
any Note or the holder or holders of such Finance
Obligation or any trustee or agents for such holders;
provided, however, that no such default under this
clause (c) shall constitute an Event of Default unless
the amount of Finance Obligations so affected is at
least $5,000,000.
(d) Bankruptcy, Insolvency, etc. The occurrence
of any of the following events: (i) the Company or any
Restricted Subsidiary becomes insolvent or generally
fails to pay, or admits in writing its inability or
refusal to pay, debts as they become due; or (ii) the
Company or any Restricted Subsidiary applies for,
consents to, or acquiesces in the appointment of a
trustee, receiver or other custodian for the Company or
such Restricted Subsidiary or any property thereof, or
makes a general assignment for the benefit of
creditors; or, (iii) in the absence of such
application, consent or acquiescence, a trustee,
receiver or other custodian is appointed for the
Company or any Restricted Subsidiary or for a
substantial part of the property of any thereof and is
not discharged within 60 days; or (iv) any bankruptcy,
reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or
any dissolution or liquidation proceeding (except the
voluntary dissolution, not under any bankruptcy or
insolvency law, of a Restricted Subsidiary), is
commenced in respect of the Company or any Restricted
Subsidiary, and if such case or proceeding is not
commenced by the Company or such Restricted Subsidiary,
it is consented to or acquiesced in by the Company or
such Restricted Subsidiary or remains for 60 days
undismissed; or (v) the Company or any Restricted
Subsidiary takes any corporate action to authorize, or
in furtherance of, any of the foregoing; provided that
the provisions of this Section 13.1(d) shall not apply
to any Special Restricted Subsidiary to which the
foregoing provisions of Section 13.1(d) would otherwise
apply, which together with all other Special Restricted
Subsidiaries with respect to which an event described
in the foregoing provisions of Section 13.1(d) shall
have occurred, has assets which do not exceed one
percent (1%) of the total assets of the Company and its
Restricted Subsidiaries.
(e) Specified Non-Compliance with this Agreement.
Failure by the Company to comply with or to perform its
obligations under Sections 11.3 through 11.6 of this
Agreement.
(f) Other Non-Compliance with this Agreement.
Failure by the Company to comply with or to perform its
obligations under any provision of this Agreement (and
not constituting an Event of Default under any of the
other provisions of this Section 13.1) and (i)
continuance of such failure for 30 days after notice
thereof to the Company by any Agent, any Bank or the
holder of any Note specifying such failure if such
failure can be cured with diligence within such 30-day
period by the Company or can be cured by the payment of
money, or (ii) continuance of such failure for 60 days
after notice thereof to the Company by an Agent, any
Bank or the holder of any Note specifying such failure
if such failure cannot with diligence be cured within
such 30-day period and cannot be cured by the payment
of money.
(g) Representations and Warranties. Any
representation or warranty made by the Company herein
is breached or contains any statement which is false or
misleading in any material respect, or any schedule,
certificate or other writing furnished by the Company
to any Agent, any Bank or the holder of any Note
pursuant to this Agreement contains any material
statement which is false or misleading in any material
respect on the date as of which the facts therein set
forth are (or are deemed to be) stated or certified.
(h) Stock Ownership. Until such time as under the
provisions of Section 5 a Change of Control can no longer be
deemed to have occurred, Parent or Successor to Parent
(except by reason of a merger of the Company into the
Parent) shall fail to own, directly or indirectly, 100% of
the capital stock (excluding Debt-Like Preferred Stock) of
the Company (or any successor to the Company permitted by
Section 11.6) free and clear of all Liens. "Successor to
Parent" refers to the Person into which the Parent shall
have been merged or in the case of a consolidation involving
the Parent, the Person formed by such consolidation or in
the case of the sale of substantially all the assets of the
Parent, the Person to whom substantially all of the assets
of the Parent shall have been transferred or conveyed;
provided, in each case, voting shares of the capital stock
of, or voting equity interests in, such Person are converted
from or exchanged for Class A Common Stock.
(i) Judgments. Final judgment or judgments
(after the expiration of all times to appeal therefrom)
for the payment of money in excess of $5,000,000 in the
aggregate shall be rendered against Company or any of
its Restricted Subsidiaries and the same shall not be
(i) fully covered by insurance or (ii) vacated, stayed,
bonded, paid or discharged for a period of sixty (60)
days.
(j) MWCC Receivables Purchase Agreement. (i) An
amendment which materially adversely affects the Banks
shall be made to the MWCC Receivables Purchase
Agreement without the prior written consent of the
Required Banks, including, without limitation, any
amendment thereto which secures the Seller Notes (as
defined therein) or which provides for any of such
Seller Notes to be payable on a date earlier than the
date on which such Seller Notes are payable as at the
date of this Agreement, (ii) the MWCC Receivables
Purchase Agreement shall fail to remain in full force
and effect, (iii) any default by the Company under the
MWCC Receivables Purchase Agreement (after the
expiration of any applicable grace period) shall occur
and be continuing which has not been waived by MWCC and
which provides MWCC thereunder with the right to
terminate MWCC's obligation to purchase customer
receivables thereunder from the Company, or (iv) the
Company or MWCC shall give notice of termination or
take any action to terminate thereunder (other than the
notice to terminate at the expiration of a 10-year
period and other than a termination by the Company
pursuant to which a wind down or transition of at least
one year is provided).
(k) Short Term Credit Agreement. An Event of Default
(as defined in the Short Term Credit Agreement) shall occur.
13.2 Effect of Event of Default. If any Event of
Default described in Section 13.1(d) shall occur, automatically
all of the Commitments (if they have not theretofore terminated)
shall immediately terminate and automatically all Liabilities
shall become immediately due and payable, all without
presentment, demand or notice of any kind all of which are hereby
waived; and, in the case of any other Event of Default, unless
such Event of Default shall have been cured, (i) the
Administrative Agent may and, upon the written request of the
Required Banks, shall declare all Commitments (if they have not
theretofore terminated) to be terminated whereupon all such
Commitments (if they have not theretofore terminated) shall
immediately terminate, and (ii) the Administrative Agent may and,
upon the written request of Banks holding Notes evidencing at
least 66-2/3% of the aggregate unpaid principal amount of the
Loans, declare all Liabilities to be due and payable, whereupon
all such Liabilities shall become immediately due and payable,
all without presentment, demand or notice of any kind, all of
which are hereby waived. The Administrative Agent shall promptly
advise the Company and each Bank of any such declaration, but
failure to do so shall not impair the effect of such declaration.
Notwithstanding the foregoing, no rescission of a termination of
the Commitments shall be made without the written consent of all
of the Banks, and no rescission of any acceleration of any of the
Loans shall be made without the written consent of the Banks
holding 100% of the aggregate unpaid principal amount of the
Loans so accelerated.
SECTION 14 THE AGENTS.
14.1 Authorization. Each Bank and the holder of each
Note authorizes each Agent to act on behalf of such Bank or
holder to the extent provided in this Agreement and in any other
document or instrument delivered hereunder or in connection
herewith, and to take such other action as may be reasonably
incidental thereto. Subject to the provisions of Section 14.3,
each Agent, in its capacity as such, will take such action
permitted by any agreement delivered in connection with this
Agreement as may be requested in writing by the Required Banks or
all Banks, as appropriate.
14.2 Indemnification. The Banks severally agree to
indemnify each Agent, in its capacity as such, and each officer,
director, employee and agent of each Agent (herein collectively
called the "Agent Parties" and individually called an "Agent
Party"), ratably according to their respective Commitments to the
extent not reimbursed by the Company, from and against any and
all actions, causes of action, suits, losses, liabilities,
damages, and expenses which may at any time (including without
limitation at any time following the payment of any of the
Liabilities) be imposed on, incurred by or asserted against such
Agent Party in any way relating to or arising out of this
Agreement, or any documents contemplated by or referred to herein
or the transactions contemplated hereby or any action taken or
omitted by such Agent Party under or in connection with any of
the foregoing; provided, that no Bank shall be liable for the
payment to such Agent Party of any portion of such actions,
causes of action, suits, losses, liabilities, damages, and
expenses resulting from such Agent Party's gross negligence or
willful misconduct. All obligations provided for in this Section
14.2 shall survive satisfaction of the Liabilities, cancellation
of the Notes and any termination of this Agreement.
14.3 Action on Instructions of the Required Banks. As
to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or
take any action, but each Agent shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required
Banks, and such instructions shall be binding upon the Banks
(including, without limitation, all subsequent holders of the
Notes); provided, however, that no Agent shall be required to
take any action which exposes such Agent to personal liability or
which is contrary to this Agreement or applicable law. The
relationship between the Agents and the Banks is and shall be
that of agent and principal only and nothing herein contained
shall be construed to constitute any Agent a trustee for any
party hereto or any holder of a Note or of a participation
therein nor to impose on any Agent duties and obligations other
than those expressly provided for herein.
(a) The Applicable Agent shall be entitled to assume
that each Bank has made the proceeds of each of its Loans
available in accordance with this Agreement unless such Bank
notifies such Agent prior to 11:30 a.m., Chicago time, on the
Funding Date for such Loan that it does not intend to make such
Loan, it being understood that no such notice shall relieve such
Bank of any of its obligations under this Agreement. If the
Applicable Agent makes any payment to the Company on the
assumption that a Bank has made the proceeds of its Loan
available to the Applicable Agent but has not in fact done so,
such Bank shall pay to the Applicable Agent on demand an amount
equal to the amount of the Loan which it was obligated to make,
together with interest thereon for each day that elapses from and
including such Funding Date to the Business Day on which such
sums become immediately available to the Applicable Agent, prior
to 12:00 noon, Chicago time, at the Federal Funds Rate for each
such day, based upon a year of 360 days.
(b) Each Agent shall be entitled to assume that the
Company has made all payments due hereunder on the due date
thereof unless it receives notification prior to any such due
date from the Company that the Company does not intend to make
any such payment, it being understood that no such notice shall
relieve the Company of any of its obligations under this
Agreement. If any Agent distributes any payment to a Bank or any
Assignee hereunder in the belief that the Company has paid to
such Agent the amount thereof but the Company has not in fact
paid to such Agent such amount, such Bank or Assignee shall pay
to such Agent on demand an amount equal to the amount of the
payment made by such Agent to such Bank, together with interest
thereon for each day that elapses from and including the date on
which such Agent made such payment to but excluding the Business
Day on which the amount of such payment is returned to such Agent
in immediately available funds prior to 12:00 noon, Chicago time,
at the Federal Funds Rate for each such day, based upon a year of
360 days. If the amount of such payment is not returned to such
Agent in immediately available funds within five (5) Business
Days after such demand for payment was made by such Agent, such
Bank or Assignee shall pay to such Agent on demand an amount
calculated in the manner specified in the preceding sentence
after substituting the term "Base Rate" for the term "Federal
Funds Rate". A certificate of the Applicable Agent submitted to
any Bank with respect to amounts owing under this Section 14.4(b)
shall be conclusive absent manifest error.
(c) Each Agent shall promptly remit to each Bank or
other holder its share of all payments received by such Agent for
the account of such Bank or holder, such remittance to be in
Dollars and in same day funds (or, if different, the kind of
funds received by such Agent). Unless expressly provided
otherwise in this Agreement, each Agent shall distribute payments
to the Banks on the same day on which such Agent received the
corresponding payment from the Company if such payment from the
Company was received before 12:00 noon, Chicago time, and on the
next Business Day if such payment from the Company was received
after 12:00 noon, Chicago time, and if any Agent does not
distribute payments to the Banks on the day when due such Agent
shall pay to each Bank entitled to receive payment, on demand by
such Bank, interest on the payment due to such Bank for each day
that elapses from and including the date on which such payment
was due to but excluding the Business Day on which such payment
is made to such Bank in immediately available funds prior to
12:00 noon, Chicago time, at the Federal Funds Rate for each such
day, based upon a year of 360 days. If the amount of such
payment is not made to any Bank in immediately available funds
within five (5) Business Days after such payment was due to such
Bank, such Agent shall pay to such Bank on demand an amount
calculated in the manner specified in the preceding sentence
after substituting the term "Base Rate" for the term "Federal
Funds Rate". A certificate of any Bank submitted to any Agent
with respect to amounts owing under this Section 14.4(c) shall be
conclusive absent manifest error.
14.5 Exculpation. Each Agent shall be entitled to
rely upon advice of counsel concerning legal matters, and upon
this Agreement and any Note, security agreement, schedule,
certificate, statement, report, notice or other writing which it
believes to be genuine or to have been presented by a proper
person. No Agent Party shall (i) be responsible for any
recitals, representations or warranties contained in, or for the
execution, validity, genuineness, effectiveness or enforceability
of, this Agreement or any Note, security agreement, schedule,
certificate, statement, report, notice or other writing delivered
hereunder or in connection herewith, (ii) be responsible for the
validity, genuineness, perfection, effectiveness, enforceability,
existence, value or enforcement of any collateral security, (iii)
be deemed to have knowledge of an Event of Default or Unmatured
Event of Default until after having received actual notice
thereof from the Company or any Bank, (iv) be under any duty to
inquire into or pass upon any of the foregoing matters, or to
make any inquiry concerning the performance by the Company or any
other obligor of its obligations, or (v) in any event, be liable
as such for any action taken or omitted by it or them, except for
its or their own gross negligence or willful misconduct. The
agency hereby created shall in no way impair or affect any of the
rights and powers of, or impose any duties or obligations upon,
any Agent in its individual capacity.
shall cause each actual or potential Assignee or Participant to
acknowledge to such Bank in its assignment or participation
agreement with such Bank that (i) it has made and will continue
to make such inquiries and has taken and will take such care on
its own behalf as would have been the case had it made the Loans
directly to the Company without the intervention of any Agent or
any other Person, and (ii) it has made and will continue to make
its own credit analysis and decisions relating to this Agreement
independently and without reliance upon any Agent or any other
Bank, and based on such documents and information as it has
deemed appropriate. Each Bank agrees and acknowledges and shall
cause each actual or potential Assignee or Participant to agree
with, and acknowledge to, such Bank in its assignment or
participation agreement with such Bank that no Agent or any other
Bank makes any representations or warranties about the
creditworthiness of the Company or any other party to this
Agreement or with respect to the legality, validity, sufficiency
or enforceability of this Agreement or any Note or the value of
any security therefor.
14.7 Agents and Affiliates. Each Agent and each of
its successors as an Agent shall have the same rights and powers
hereunder as any other Bank and may refrain from exercising the
same as though it were not an Agent, and each Agent and each such
successor and its Affiliates may accept deposits from and
generally engage in any kind of business with the Company or any
Affiliate thereof as if such Agent and each such successor were
not an Agent.
14.8 Resignation and Removal.
(a) Any Agent may resign as such at any time upon at
least 30 days' prior notice to the Company and the Banks, and any
Agent may be removed as such at any time by vote of the Required
Banks and notice to the retiring Agent and the Company. In the
event of any such resignation or removal, the Required Banks
shall as promptly as practicable (but with five (5) Business
Days' prior written notice being given to the Company) appoint a
successor Agent. If no successor Agent shall have been so
appointed, and shall have accepted such appointment within 30
days after either the retiring Agent's giving of notice of
resignation or the Required Banks' vote to remove the retiring
Agent, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of
any State thereof or under the laws of another country which is
doing business in the United States and having a combined
capital, surplus and undivided profits of at least $100,000,000.
(b) The Company may, at any time, remove any Agent
upon five days' prior written notice to such Agent and each Bank;
provided, however, that any such removal may not become effective
prior to the time that a successor Agent, appointed by the
Company and having the qualifications described above with
respect to successor Agents which may be appointed by a retiring
Agent, shall have accepted such appointment and begun to serve as
Agent hereunder; and provided, further, that in case an Event of
Default or Unmatured Event of Default shall have occurred and be
continuing, the Company may remove an Agent only with the written
consent of the Required Banks.
(c) Upon its acceptance of its appointment, such
successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from all
further duties and obligations as Agent under this Agreement.
After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Agreement shall continue to inure
to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement.
14.9 Advisory Agent. Bank of America National Trust
and Savings Association ("Bank of America"), as Advisory Agent
shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those
applicable to all Banks as such. Without limiting the foregoing,
Bank of America shall not have or be deemed to have any fiduciary
relationship with any Bank. Each Bank acknowledges that it has
not relied, and will not rely, on Bank of America in deciding to
enter into this Agreement or in taking or not taking action
hereunder.
SECTION 15 GENERAL.
15.1 Waiver; Amendments. No delay on the part of any
Agent, any Bank or the holder of any Note in the exercise of any
right, power or remedy shall operate as a waiver thereof, nor
shall any single or partial exercise by any of them of any right,
power or remedy preclude any other or further exercise thereof,
or the exercise of any other right, power or remedy. Except as
otherwise specifically provided in this Agreement, the
concurrence of the Required Banks shall be required for any
amendment, modification or waiver of, or consent with respect to,
any provision of this Agreement, the Notes or other documents,
instruments or agreements affecting the rights of such Banks.
Any amendment, modification, waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given.
Notwithstanding the foregoing:
(a) the consent of all Banks shall be required
for any amendment, modification, waiver or consent with
respect to the following: (i) any change in the amount
or the scheduled timing of the payment of principal or
any extension of the maturity thereof, (ii) any
reduction in the rate of interest or any change in the
timing of the payment of such interest, (iii) any
change or reduction in or any waiver of the amount of
any fees under Sections 6.5 or 6.6 or any change in the
timing of the payment of any such fees, (iv) except as
provided in Section 2.7 with respect to a Bank's
Commitment, any extension of such Commitment or any
increase in the amount of such Commitment, or (v) any
change in the allocation of proceeds or payments among
the Banks;
(b) the consent of all Banks shall be required
for any amendment, modification, waiver or consent
relating to any of the following items: (i) any change
in Section 12.1, or (ii) any change in this Section
15.1, or (iii) any change to the definition of Required
Banks or any provision which specifies the requisite
level or number of Banks which are required to amend,
modify, waive or consent to any provisions of this
Agreement.
(c) no provisions of Section 6.7 or Section 14
shall be amended, modified or waived without the
consent of all Agents.
15.2 Notices.
(a) Except as otherwise expressly provided in this
Agreement, any notice hereunder to the Company, any Agent, any
Bank or other holder shall be in writing. Notices given by
telegram, telex, telecopier or personal delivery shall be deemed
to have been given and received when sent (and, in the case of
telex, the appropriate answerback is received) and notices given
by mail shall be deemed to have been given and received three
Business Days after the date when sent by registered or certified
mail, postage prepaid, and addressed to the Company, such Agent,
or such Bank (or other holder) at its address shown below its
signature hereto, or at such other address as any such Person
may, by written notice received by such other persons, have
designated as its address for such purpose. Any Agent, any Bank
or the holder of any Note giving any waiver, consent or notice
to, or making any request upon, the Company hereunder shall
promptly notify each Bank and the Applicable Agent thereof.
Correspondence with respect to Negotiated Loans and notices of
Loan Requests (other than Negotiated Loan Confirmations) made by
the Company shall be directed to the persons specified for such
purpose for each party on the signature pages hereto or in
subsequent writings among the parties. Each Agent shall promptly
transmit to each Bank (or share with each Bank the contents of)
each notice it receives from the Company pursuant to this
Agreement other than notices with respect to Negotiated Loans and
Swing Loans which shall be furnished by the Administrative Agent
through the Master Register pursuant to Section 8.5(b). Notices
to any Agent in connection with borrowings, payments,
Continuations or Conversions shall not be effective until actual
receipt by such Agent.
(b) Each Agent and each Bank shall be entitled to rely
upon all telephonic notices without awaiting receipt of written
versions of such notices and the Company shall hold each Agent,
and each Bank harmless from, and shall indemnify each Agent and
each Bank against, any loss, cost or expense ensuing from any
such reliance.
15.3 Computations.
(a) Where the character or amount of any asset or
liability or item of income or expense is required to be
determined or any consolidation or other accounting computation
is required to be made for the purpose of this Agreement, such
determination or calculation shall, at any time and to the extent
applicable and except as otherwise specified in this Agreement,
be made in accordance with GAAP.
(b) Notwithstanding the preceding paragraph (a),
except for the changes required in implementing Financial
Accounting Standards Board Statements adopted prior to January 1,
1994 and which are to be implemented by the Company after
January 1, 1994 (namely, Statements 115 and 116), in the event of
any changes in GAAP as applied in preparing the audited financial
statements of the Company and its consolidated Subsidiaries as at
January 1, 1994 which result in a change in the earnings of the
Company, Consolidated Net Income, Debt of the Company and its
Restricted Subsidiaries, or Consolidated Shareholder's Equity of
the Company, such change (net of related tax effects, if any)
shall be added back to or subtracted from, as the case may be,
any determination of the earnings of the Company, Consolidated
Net Income, Debt of the Company and its Restricted Subsidiaries,
and Consolidated Shareholder's Equity of the Company for the
purpose of applying the Consolidated Shareholder's Equity of the
Company, Ratio of Earnings to Fixed Charges and the ratio of Debt
to Total Capitalization tests and in determining applicable
limitations on distributions with respect to the Company's
capital stock.
(c) While the Company and MWCC intend that the sale of
receivables to MWCC by the Company under the MWCC Receivables
Purchase Agreement be considered sales by the Company and not
secured loans to the Company by MWCC, such transaction may be
classified as a loan under Financial Accounting Standards Board
Statement No. 77. Irrespective of whether such receivables sale
transactions are classified as a sale or a loan under Financial
Accounting Standards Board Statement No. 77, such transactions
shall be treated as sales without recourse for the purposes of
this Agreement and not a secured loan.
15.4 Participations; Assignments; Replacement of
Banks.
(a) Participations. Subject to the provisions of this
Section 15.4, any Bank may at any time, in the ordinary course of
its commercial banking business and in accordance with applicable
law, sell to one or more banks or other financial institutions,
and to such other Persons or types of Persons which the Company
may from time to time approve in its sole discretion
(collectively, "Participants") participating interests in any
Loan owing to such Bank, or any Note held by such Bank, provided
that no Bank shall, without the prior written notice to and
consent of the Company (which consent may be withheld or granted,
as the case may be, in the Company's sole discretion), sell any
participation in any Commitment or any portion thereof. In the
event of any such sale to a Participant, upon request by the
Company the selling Bank shall give written notice, to the
Company stating the Participant's name and address and the amount
of the participation purchased, but
(i) the Company and the Applicable Agent shall
continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations
under this Agreement,
(ii) all amounts payable by the Company shall be
determined as if such Bank had not sold such
participation, and
(iii) any Participant which is not an Affiliate
of the selling Bank shall have no right to require the
selling Bank to take or omit to take any action under
this Agreement or any Note other than action directly
affecting the extension of the stated maturity of any
Loan, directly affecting any scheduled installment of
principal or any scheduled reduction in the stated
amount of, or interest on, any Loan in which such
participation was sold, or reducing the principal or
stated amount thereof or the rate of interest thereon
or fees payable hereunder.
Each Bank agrees to incorporate the requirements set forth in the
preceding sentence into each participation agreement which such
Bank enters into with any Participant. The Company agrees that
if amounts outstanding under this Agreement and the Notes are due
or unpaid, or shall have been declared or shall have become due
and payable upon the occurrence of an Event of Default, each
Participant shall, if its participation agreement with the
selling Bank so provides, be deemed to have the right of setoff
in respect of its participating interest in amounts owing under
this Agreement or any Note to the same extent as if the amount of
its participating interest were owing directly to it as a Bank
under this Agreement or any Note; provided that such right of
setoff shall be subject to such Participant's obligation to share
with the Banks, and the Banks agree to share with such
Participant, as provided in Section 8.2(c). No participation
contemplated in this Section 15.4 shall relieve any Bank either
from its Commitment hereunder or from any of its other
obligations hereunder and such Bank shall remain solely
responsible for the performance thereof.
(b) Assignments. Subject to the provisions of this
Section 15.4, any Bank may, with the Company's prior written
approval (which approval may be withheld or granted, as the case
may be, in the Company's sole discretion), execute an assignment
and acceptance substantially in the form of Exhibit L, with
appropriate insertions (herein individually called an
"Assignment" and collectively called the "Assignments"), whereby
such Bank shall assign, without recourse and without
representation or warranty except as specifically set forth in
said Assignment, to one or more banks or other entities (herein
individually called an "Assignee" and collectively called the
"Assignees") all or any part of such Bank's rights and benefits,
and delegate all or any part of such Bank's obligations, under
this Agreement and its Notes; provided, that any such Assignment
shall assign equal percentage amounts of the assignor Bank's
Commitment under this Agreement and such Bank's commitment under
the Short Term Credit Agreement. Notwithstanding the foregoing,
if the Company shall unreasonably withhold approval of any
requested assignment and shall not secure a replacement assignee
with respect to such assignment proposed by any such Bank within
60 days after the request in writing to the Company for such
approval, any such Bank may upon the expiration of such 60-day
period complete the proposed assignment (but only on the terms
proposed and to the Assignee proposed) and the Company agrees
that the Assignment shall have the same effect as if executed by
the Company.
Upon execution, delivery and acceptance of each
Assignment, from and after the effective date specified therein,
which effective date shall be at least five (5) Business Days
after the execution thereof, the Company, the Agents and the
Banks agree that, to the extent of any such Assignment,
(x) the Assignee thereunder shall, in addition to
any rights, benefits and obligations hereunder held by
it immediately prior to such effective date, have the
rights, benefits and obligations of a Bank under this
Agreement and the assignor Bank's Notes (including,
without limitation, rights and benefits arising out of
Section 9) and the same rights of setoff pursuant to
Section 8.3 and obligation to share pursuant to Section
8.2 as it would have if it were a Bank hereunder to the
extent that the same have been assigned and delegated
to it pursuant to such Assignment, and
(y) the assignor Bank shall, to the extent that
rights, benefits and obligations hereunder have been
assigned and delegated by it pursuant to such
Assignment, relinquish its rights and benefits and be
released from its obligations under this Agreement
(and, in the case of an Assignment covering all or the
remaining portion of an assignor Bank's rights,
benefits and obligations under this Agreement, such
Bank shall cease to be a party hereto), except that in
all cases the assignor Bank shall remain entitled to
the rights and benefits arising under Sections 6, 8.4,
9, 15.5 and 15.6 with respect to any period of time
prior to the effective date of any such Assignment, and
shall remain liable with respect to any of its
obligations arising under Sections 6.9, 8.4(c), 14.2
and 15.5, with respect to any matters arising prior to
the effective date of any such Assignment;
provided, that:
(i) each Agent and each Bank shall be entitled to
continue to deal solely and directly with the assignor
Bank in connection with the interests so assigned and
delegated to the Assignee until written notice of such
Assignment, together with addresses and related
information with respect to the Assignee, shall have
been given to each Agent and each Bank by the assignor
Bank and the Assignee,
(ii) if the Assignee is a Non-United States
Person, it shall deliver to the Company and the
Applicable Agent a written representation and
undertaking substantially similar to Section 8.4(b),
and
(iii) the Company shall not be required to pay
any costs, fees or taxes of any kind or nature with
respect to the interest(s) assigned in excess of those
payable by the Company in connection with such
interest(s) prior to such assignment except for any
costs, fees or taxes described in Section 8.4, 9 or
15.6.
Upon its receipt of an Assignment executed by an assignor Bank
and an Assignee, together with the Notes subject to such
Assignment, the Applicable Agent shall, if such Assignment has
been completed and is in substantially the form of Exhibit L,
accept such Assignment and forward a photostatic copy thereof to
the Company. Within five (5) Business Days after its receipt of
a photostatic copy of such Assignment, the Company shall execute
and deliver to the Applicable Agent, to be exchanged for the
Notes delivered to the Applicable Agent by the assignor Bank, new
Notes payable to the order of the Assignee in an amount equal to
the Commitment assumed by it pursuant to such Assignment (or
other amount applicable to Swing Notes or Negotiated Notes) and,
if the assignor Bank has retained a Commitment hereunder, new
Notes payable to the order of the assignor Bank in an amount
equal to the Commitment retained by it hereunder (or other amount
applicable to Swing Notes or Negotiated Notes). Such new Notes
shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Notes, shall be dated the
effective date of such Assignment, shall be payable to the order
of the Assignee or the assignor Bank, shall otherwise be in
substantially the form of such surrendered Notes, and shall
constitute Notes under this Agreement. Such new Notes shall be
in replacement and substitution for, and not in payment of, the
Notes delivered to the Applicable Agent by the assignor Bank.
The Applicable Agent shall deliver such new Notes to the payee or
payees thereof and shall mark the Notes previously held by the
assignor Bank as "replaced" and shall deliver the same to the
Company. The Administrative Agent shall from time to time
distribute a revised Schedule I giving effect to any Assignments
or other modifications hereunder.
(c) Federal Reserve. Anything contained in this
Agreement to the contrary notwithstanding, and without the need
to comply with any of the formal or procedural requirements set
forth in this Agreement, any Bank may at any time and from time
to time grant a participation in, assign, deposit or pledge all
or any portion of its rights under this Agreement or the Notes to
a Federal Reserve Bank; provided, however, no such participation,
assignment, deposit or pledge shall relieve such Bank of any of
its obligations under this Agreement.
(d) Information. Notwithstanding the terms of any
previous confidentiality agreements with respect to the subject
matter hereof between the Company and any Bank, from and after
the Effective Date any Bank may furnish any information
concerning the Parent, the Company and the Subsidiaries which has
been furnished to such Bank pursuant hereto to any Assignee,
Participant, or potential Assignee or Participant; provided,
however, that the recipient of such information shall, prior to
being furnished with any such information, agree to maintain the
confidentiality of such information. Notwithstanding the
foregoing sentence, any Agent, Bank, Assignee, Participant or
potential Assignee or Participant shall be permitted to disclose
information regarding the Company and its Subsidiaries (i) to any
other Agent or Bank, or to any Assignee or Participant, (ii) to
any Affiliate, agent or employee that agrees to be bound by this
Section 15.4(d), (iii) upon order of any court or administrative
agency, (iv) upon the request or demand of any regulatory agency
or authority having jurisdiction over such party, (v) which has
been publicly disclosed, (vi) which has been obtained from any
Person that is not a party hereto or an Affiliate, agent or
employee of any such party, (vii) in connection with the exercise
of any remedy hereunder, or (viii) to such Person's certified
public accountants and its attorneys.
(e) Replacement of Banks. So long as no Event of
Default or Unmatured Event of Default shall have occurred and be
continuing, the Company shall have the right on five Business
Days' written notice (except that, only concurrent written notice
shall be required to replace a Bank for which concurrent notice
is then provided for under the Short Term Credit Agreement) to
each of the Agents and the Banks to substitute any financial
institution designated by the Company (a "Replacement Bank") for
any Bank designated by the Company as a terminated bank
("Terminated Bank"); provided, however, that the effectiveness of
such substitution shall be subject to execution of an agreement
substantially in the form of Exhibit M hereto ("Replacement
Agreement") by the Replacement Bank, the Company and the
Administrative Agent, providing for:
(i) payment of all Liabilities of the Company
then outstanding to the Terminated Bank (including
without limitation all such amounts due such Bank under
Sections 6, 8.4, 9, 15.5 and 15.6);
(ii) the termination and release of all
obligations of the Terminated Bank (excluding any
obligations arising under Sections 6.9, 8.4(c), 14.2
and 15.5 with respect to any matters arising prior to
the effective date of such termination); and
(iii) the agreement of the Replacement Bank to
become a party to this Agreement and to be bound under
this Agreement with the same effect as if the
Replacement Bank were the Terminated Bank immediately
prior to such substitution.
So long as the Short Term Credit Agreement is in effect, the
Company shall not replace a Terminated Bank pursuant to this
Section 15.4(e) unless the Company concurrently replaces such
Terminated Bank with the same Replacement Bank under the Short
Term Credit Agreement. Upon execution of such Replacement
Agreement the Administrative Agent shall forward a copy thereof
to each Bank and each other Agent, together with a revised
Schedule I modified to reflect such substitution. Upon execution
of such Replacement Agreement, the Replacement Bank shall be
deemed to be a party to this Agreement and a Bank hereunder and
the Terminated Bank will cease to be a party to this Agreement
and a Bank hereunder but shall be entitled to all the indemnities
provided by this Agreement with respect to matters arising out of
action or inaction by any party while such Terminated Bank was a
party to this Agreement.
15.5 Costs, Expenses and Taxes.
(a) The Company agrees to pay on demand all fees and
out-of-pocket costs and expenses of McDermott, Will & Emery (or
other law firm acceptable to the Required Banks) as special
counsel to the Documentary Agent and the Banks (and of other
special counsel, if any, who may be retained by said counsel), in
connection with the preparation, execution, delivery,
administration and enforcement of this Agreement, the Notes and
all other instruments or documents provided for herein or
delivered or to be delivered hereunder or in connection herewith,
and any and all waivers, consents, amendments, modifications,
replacements or restatements relating to any thereof; provided
that the Company's obligations hereunder with respect to
administration shall be limited to administration of or by the
Banks which are Agents hereunder. Each Bank agrees to reimburse
each Agent for such Bank's pro rata share (based upon its
respective Commitment) of any reasonable costs or expenses
incurred by such Agent on behalf of the Banks in connection with
such administration and enforcement (including reasonable
attorneys' fees and legal expenses) not paid by the Company
except to the extent that such costs or expenses arise from such
Agent's gross negligence or willful misconduct.
(b) The Company further agrees (i) to pay on demand
all reasonable fees and out-of-pocket expenses (including all
attorneys' fees, legal expenses and allocated costs of staff
counsel) of each Bank incurred directly in connection with the
enforcement of this Agreement, the Notes and all other
instruments or documents provided for herein or delivered or to
be delivered hereunder or in connection herewith, and any and all
amendments, modifications, replacements or restatements relating
to any thereof, and (ii) to pay, and to save each Agent and the
Banks harmless from all liability for, any stamp or other taxes
which may be payable in connection with the execution and
delivery of this Agreement, the borrowings hereunder, or the
issuance of the Notes or of any other instruments or documents
provided for herein or delivered or to be delivered hereunder or
in connection herewith.
(c) Except as otherwise provided in the preceding
paragraphs (a) and (b), each party shall pay its own expenses in
connection with this Agreement. All obligations provided for in
this Section 15.5 shall survive repayment of the Loans,
cancellation of the Notes and any termination of this Agreement.
15.6 Indemnification. In consideration of the
execution and delivery of this Agreement by the Agents and the
Banks, the Company hereby agrees to indemnify, exonerate and hold
harmless each Bank, each Agent and each officer, director,
employee and agent of each Bank and each Agent (herein
collectively called the "Bank Parties" and individually called a
"Bank Party") from and against any and all actions, causes of
action, suits, losses, costs (including, without limitation, all
documentary or other stamp taxes or duties), liabilities, damages
and expenses (other than expenses covered by Section 15.5(a)) in
connection therewith (irrespective of whether such Bank Party is
a party to the action for which indemnification hereunder is
sought), including, without limitation, reasonable attorneys'
fees (including allocated costs of staff counsel) and
disbursements (collectively herein called the "Indemnified
Liabilities") incurred by the Bank Parties or any of them as a
result of, or arising out of, or relating to any Loan or the use
of the proceeds of any Loan except for any such Indemnified
Liabilities arising on account of such Bank Party's gross
negligence or willful misconduct and, if and to the extent that
the foregoing undertaking may be unenforceable for any reason,
the Company hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. All obligations
provided for in this Section 15.6 shall survive repayment of the
Liabilities, cancellation of the Notes and any termination of
this Agreement.
15.7 Regulation U. Each Bank represents that it in
good faith is not relying, either directly or indirectly, upon
any Margin Stock as collateral security for the extension or
maintenance by it of any credit provided for in this Agreement.
15.8 Captions. Section captions used in this
Agreement are for convenience only, and shall not affect the
construction of this Agreement.
15.9 Governing Law; Severability. This Agreement and
each Note shall be a contract made under and governed by the laws
of the State of Illinois without regard to conflict of laws
principles. All obligations of the Company and the rights of the
Agents, the Banks and any other holders of the Notes expressed
herein or in the Notes shall be in addition to and not in
limitation of those provided by applicable law. Whenever
possible each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Agreement. Nothing herein shall require the
Company to pay interest in excess of the maximum rate permitted
by law.
15.10 Waiver of Jury Trial. Each of the Company, each
Agent and each Bank waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights under this
Agreement, any Note or any amendment, instrument, document or
agreement delivered or which may in the future be delivered in
connection herewith or arising from any banking relationship
existing in connection with this Agreement, and agrees that any
such action or proceeding shall be tried before a court and not
before a jury.
15.11 Counterparts; Effectiveness. This Agreement may
be executed in any number of counterparts and by the different
parties on separate counterparts and each such counterpart shall
be deemed to be an original, but all such counterparts shall
together constitute but one and the same agreement. This
Agreement shall become effective as of the Effective Date and the
Documentary Agent shall so inform all of the parties hereto.
15.12 Supersession. This Agreement supersedes all
prior or contemporaneous agreements with respect to the subject
matter hereof.
15.13 Successors and Assigns. This Agreement shall be
binding upon the Company, the Banks and the Agents and their
respective successors and assigns, and shall inure to the benefit
of the Company, the Banks and the Agents and the respective
successors and assigns of the Banks and the Agents, it being
understood that subject to Section 11.6, the Company shall not
assign its rights hereunder without the consent of all of the
Banks.
* * *
<PAGE>
Delivered at Chicago, Illinois as of the day, month and
year first above written.
MONTGOMERY WARD & CO., INCORPORATED
By:
Name: Douglas V. Gathany
Title: Senior Assistant Treasurer
One Montgomery Ward Plaza
844 North Larrabee
Chicago, Illinois 60671
Attention: Treasurer
Telephone: (312) 467-7238
Telecopy: (312) 467-7421
Person to whom Negotiated Loan correspondence
should be addressed:
Douglas V. Gathany
Senior Assistant Treasurer
Telephone: (312) 467-7238
Telecopy: (312) 467-7421
Person to whom copies of notices under Section
13.2 should also be sent:
Montgomery Ward & Co., Incorporated
One Montgomery Ward Plaza
535 West Chicago Avenue
Chicago, Illinois 60671
Attention: Secretary
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO, in its
individual capacity and in its capacity as
Documentary Agent
By:
Name: Jeanette Ganousis
Title: Vice President
Mail Suite 0088
One First National Plaza
Chicago, IL 60670
Telephone: (312) 732-6066
Telecopy: (312) 732-5161
Person to whom Negotiated Loan correspondence
should be addressed:
Dennis Degen
Administrative Coordinator
Telephone: (312) 732-6246
Telecopy: (312) 732-2715
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Dennis Degen
Administrative Coordinator
Telephone: (312) 732-6246
Telecopy: (312) 732-2715
Base Rate Loan Funding Office:
The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
Eurodollar Loan Funding Office:
The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
<PAGE>
THE BANK OF NEW YORK, in its individual
capacity and in its capacity as Negotiated
Loan Agent
By:
Name: Bruce C. Miller
Title: Vice President
One Wall Street
New York, NY 10286
Telephone: (212) 635-1172
Telecopy: (212) 635-1208
Person to whom Negotiated Loan correspondence
should be addressed:
Carol Surles, 18th Floor
Telephone: (212) 635-4695
Telecopy: (212) 635-6365
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Carol Surles, 18th Floor
Telephone: (212) 635-4695
Telecopy: (212) 635-6365
Base Rate Loan Funding Office:
The Bank of New York
Commercial Loan Servicing Dept.
101 Barclay Street
New York, NY 10007
Eurodollar Loan Funding Office:
The Bank of New York
Euro Dollar/Cayman Funding Area
101 Barclay Street
New York, NY 10007
<PAGE>
THE BANK OF NOVA SCOTIA, in its individual
capacity and in its capacity as Administrative
Agent
By:
Name: F.C.H. Ashby
Title: Senior Assistant Agent
Suite 2700
600 Peachtree NE
Atlanta, GA 30308
Telephone: (404) 877-1500
Telecopy: (404) 888-8998
Telex: 00542319
Person to whom Negotiated Loan correspondence
should be addressed:
Sarah Schramm
NYA - Treasury
Telephone: (212) 225-5550
Telecopy: (212) 225-5517
Telex: ITT421791
WUI669859
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Ed Moussa
Atlanta Agency
Telephone: (404) 877-1500
Telecopy: (404) 888-8998
Telex: 00542319
Base Rate Loan Funding Office:
The Bank of Nova Scotia
Atlanta Agency
Suite 2700
600 Peachtree NE
Atlanta, GA 30308
Eurodollar Loan Funding Office:
The Bank of Nova Scotia
Atlanta Agency
Suite 2700
600 Peachtree NE
Atlanta, GA 30308
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, in its individual capacity and in
its capacity as Advisory Agent
By:
Name: M. Kathleen McVay
Title: Senior Vice President
200 West Adams Street, Suite 2800
Chicago, Illinois 60606
Telephone: (312) 269-4644
Telecopy: (312) 269-4540
Person to whom Negotiated Loan correspondence
should be addressed:
M. Kathleen McVay
Senior Vice President
Telephone: (312) 269-4644
Telecopy: (312) 269-4540
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Pamela Quebbeman
Bank of America
231 South LaSalle Street
Chicago, Illinois 60697
Telephone: (312) 828-3586
Telecopy: (312) 987-5500
Base Rate Loan Funding Office:
Bank of America National Trust and Savings
Association
Eurodollar Loan Funding Office:
Bank of America National Trust and Savings
Association
<PAGE>
CIBC INC.
By:
Name: David McGowan
Title: Vice President
Suite 2300
200 West Madison Street
Chicago, IL 60606
Telephone: (312) 750-8730
Telecopy: (312) 726-8884
Person to whom Negotiated Loan correspondence
should be addressed:
Carol Kizzia
425 Lexington
New York, New York 10017
Telephone: (212) 856-3693
Telecopy: (212) 856-6699
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Sherry Smith
Assistant Vice President
with a copy to:
Junior Williams
Associate
2 Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339
Telephone: (404) 319-4820
Telecopy: (404) 319-4950
Telex: 54-2413
Base Rate Loan Funding Office:
Canadian Imperial Bank of Commerce
2 Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Eurodollar Loan Funding Office:
Canadian Imperial Bank of Commerce
2 Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
<PAGE>
NATIONSBANK OF NORTH CAROLINA
By:
Name: Christopher B. Torie
Title: Senior Vice President
70 West Madison Street, 53rd Floor
Chicago, Illinois 60602
Telephone: (312) 853-5794
Telecopy: (312) 853-9194
Person to whom Negotiated Loan correspondence
should be addressed:
Kathy Mumpower
Telephone: (704) 386-7429
Telecopy: (704) 386-8694
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Kathy Mumpower
Telephone: (704) 386-7429
Telecopy: (704) 386-8694
Base Rate Loan Funding Office:
NationsBank of North Carolina
#1 Nations Bank Plaza T 17-21
Charlotte, North Carolina 28255
Eurodollar Loan Funding Office:
NationsBank of North Carolina
#1 Nations Bank Plaza T 17-21
Charlotte, North Carolina 28255
<PAGE>
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
Name: Mark A. Thompson
Title: Vice President and Deputy
General Manager
190 South LaSalle Street
Chicago, Illinois 60603
Telephone: (312) 704-5459
Telecopy: (312) 704-8505
Person to whom Negotiated Loan correspondence
should be addressed:
Will Schauble
Vice President, Loan Operations
Telephone: (312) 704-5494
Telecopy: (312) 704-8717
Telex: 825567
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Will Schauble
Vice President, Loan Operations
Telephone: (312) 704-5494
Telecopy: (312) 704-8717
Telex: 825567
Base Rate Loan Funding Office:
190 South LaSalle Street, Suite 800
Chicago, Illinois 60603
Eurodollar Loan Funding Office:
190 South LaSalle Street, Suite 800
Chicago, Illinois 60603
<PAGE>
CREDIT LYONNAIS CHICAGO BRANCH
By:
Name: Attila Koc
Title: Vice President, Corporate
Group Head
Marcus Katz, Vice President
227 West Monroe Street
Chicago, IL 60606
Telephone: (312) 220-7307
Telecopy: (312) 641-0527
Telex: 6871734
Person to whom Negotiated Loan correspondence
should be addressed:
Marcus Katz, Vice President
Telephone: (312) 220-7307
Telecopy: (312) 641-0527
Telex: 6871734
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Rosette Liptak
Telephone: (312) 220-7319
Telecopy: (312) 641-5834
Telex: 6871734
Base Rate Loan Funding Office:
Credit Lyonnais Chicago Branch
227 West Monroe Street
Chicago, IL 60606
Eurodollar Loan Funding Office:
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais Chicago Branch
227 West Monroe Street
Chicago, Illinois 60606
<PAGE>
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By:
Name: Attila Koc
Title: Authorized Signature
Marcus Katz, Vice President
227 West Monroe Street
Chicago, IL 60606
Telephone: (312) 220-7307
Telecopy: (312) 641-0527
Telex: 6871734
Person to whom Negotiated Loan correspondence
should be addressed:
Marcus Katz, Vice President
Telephone: (312) 220-7307
Telecopy: (312) 641-0527
Telex: 6871734
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Rosette Liptak
Telephone: (312) 220-7319
Telecopy: (312) 641-5834
Telex: 6871734
Base Rate Loan Funding Office:
Credit Lyonnais Chicago Branch
227 West Monroe Street
Chicago, IL 60606
Eurodollar Loan Funding Office:
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais Chicago Branch
227 West Monroe Street
Chicago, Illinois 60606
<PAGE>
BANCA COMMERCIALE ITALIANA, CHICAGO BRANCH
By:
Name: Julian M. Teodori
Title: Senior Vice President
By:
Name: Diana R. Lamb
Title: Vice President
150 North Michigan Avenue, Suite 1500
Chicago, Illinois 60601
Telephone: (312) 346-1112
Telecopy: (312) 346-5758
Telex: 212716 COMIT CHICAGO
Person to whom Negotiated Loan correspondence
should be addressed:
Matthew V. Trujillo
Assistant Vice President
Telephone: (312) 346-1112
Telecopy: (312) 346-5758
Telex: 212716 COMIT CHICAGO
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Jonathan Sahr
Loan Department Supervisor
Telephone: (212) 607-3814
Telecopy: (212) 422-6651
Telex: 6790749 BCINY
Base Rate Loan Funding Office:
Banca Commerciale Italiana
New York Branch
One William Street
New York, New York 10004
Eurodollar Loan Funding Office:
Banca Commerciale Italiana
New York Branch
One William Street
New York, New York 10004
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD., CHICAGO BRANCH
By:
Name: Masami Tsuboi
Title: Vice President
10 South Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 715-6365
Telecopy: (312) 876-2011
Telex: 25-4515
Person to whom Negotiated Loan correspondence
should be addressed:
Richard R. Howard
Assistant Vice President
Telephone: (312) 715-6369
Telecopy: (312) 876-2011
Telex: 25-4515
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Gary Marthaler
Officer
Telephone: (312) 715-6451
Telecopy: (312) 876-2011
Telex: 25-4515
Base Rate Loan Funding Office:
The Dai-Ichi Kangyo Bank, Ltd., Chicago Branch
10 South Wacker Drive
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
The Dai-Ichi Kangyo Bank, Ltd., Chicago Branch
10 South Wacker Drive
Chicago, Illinois 60606
<PAGE>
THE MITSUBISHI BANK, LIMITED, CHICAGO BRANCH
By:
Name: Noboru Kobayashi
Title: Joint General Manager
115 South LaSalle Street, Suite 2100
Chicago, Illinois 60603
Telephone: (312) 269-0753
Telecopy: (312) 263-2555
Telex: 190046 BISHIBANK
Person to whom Negotiated Loan correspondence
should be addressed:
Alex Lam
Vice President
Telephone: (312) 269-0753
Telecopy: (312) 263-2555
Telex: 190046 BISHIBANK
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Janice Hennig
Assistant Vice President
Telephone: (312) 269-0473
Telecopy: (312) 263-2555
Telex: 190046 BISHIBANK
Base Rate Loan Funding Office:
115 South LaSalle Street, Suite 2100
Chicago, Illinois 60603
Eurodollar Loan Funding Office:
115 South LaSalle Street, Suite 2100
Chicago, Illinois 60603
<PAGE>
THE NORTHERN TRUST COMPANY
By:
Name: David Blowers
Title: Vice President and Chicago
Division Head
Mr. James M. McMenamin
50 South LaSalle Street
Chicago, Illinois 60675
Telephone: (312) 444-3555
Telecopy: (312) 630-1566
Person to whom Negotiated Loan correspondence
should be addressed:
Mr. James M. McMenamin
50 South LaSalle Street
Chicago, Illinois 60675
Telephone: (312) 444-3555
Telecopy: (312) 630-1566
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Mr. James M. McMenamin
50 South LaSalle Street
Chicago, Illinois 60675
Telephone: (312) 444-3555
Telecopy: (312) 630-1566
Base Rate Loan Funding Office:
50 South LaSalle Street
Chicago, Illinois 60675
Eurodollar Loan Funding Office:
50 South LaSalle Street
Chicago, Illinois 60675
<PAGE>
THE SAKURA BANK, LTD.
By:
Name: Hajime Miyagi
Title: Deputy General Manager
227 West Monroe Street, Suite 4700
Chicago, Illinois 60606
Telephone: (312) 201-5146
Telecopy: (312) 332-5345
Telex: 254048
Person to whom Negotiated Loan correspondence
should be addressed:
Kristin M. Hays
Assistant Vice President
Telephone: (312) 201-5141
Telecopy: (312) 332-5345
Telex: 254048
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Kristin M. Hays
Assistant Vice President
Telephone: (312) 201-5141
Telecopy: (312) 332-5345
Telex: 254048
Base Rate Loan Funding Office:
227 West Monroe Street, Suite 4700
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
227 West Monroe Street, Suite 4700
Chicago, Illinois 60606
<PAGE>
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By:
Name: Jose A. Moreno
Title: Vice President and Manager
10 South Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 368-3007
Telecopy: (312) 346-6677
Telex: 3735188
Person to whom Negotiated Loan correspondence
should be addressed:
Jose A. Moreno
Vice President and Manager
Telephone: (312) 368-3007
Telecopy: (312) 346-6677
Telex: 3735188
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Beverly Wyckoff
Manager, Loan Administration
Telephone: (312) 368-3016
Telecopy: (312) 346-6677
Telex: 3735188
Base Rate Loan Funding Office:
10 South Wacker Drive
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
10 South Wacker Drive
Chicago, Illinois 60606
<PAGE>
SWISS BANK CORPORATION
By:
Name: Nancy A. Russell
Title: Associate Director
By:
Name: William A. McDonnell
Title: Associate Director
141 West Jackson Boulevard
Chicago, Illinois 60604
Telephone: (312) 554-6436
Telecopy: (312) 554-6410 or 6411
Telex: MCI 687 1764 SBOB UW
Person to whom Negotiated Loan correspondence
should be addressed:
Paul Guider
Associate Director
Telephone: (212) 335-1009
Telecopy: (212) 335-1388
Telex: MCI 62841 swisbk uw
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Valerie Williams
Administrative Assistant
Telephone: (212) 574-3146
Telecopy: (212) 574-3180
Telex: MCI 62841 swisbk uw
Base Rate Loan Funding Office:
141 West Jackson Boulevard
Chicago, Illinois 60604
Eurodollar Loan Funding Office:
141 West Jackson Boulevard
Chicago, Illinois 60604
<PAGE>
U.S. NATIONAL BANK OF OREGON
By:
Name: Jeffrey C. Swift
Title: Vice President
National Corporate Banking
111 SW Fifth Avenue, Suite 2900
Portland, Oregon 97204
Telephone: (503) 275-6381
Telecopy: (503) 275-5428
Telex: #360549
Person to whom Negotiated Loan correspondence
should be addressed:
Jan Knox
Participation Specialist
Telephone: (503) 275-6561
Telecopy: (503) 275-4600
Telex: #360549
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Jan Knox
Participation Specialist
Telephone: (503) 275-6561
Telecopy: (503) 275-4600
Telex: #360549
Base Rate Loan Funding Office:
Corporate Loan Servicing
555 S.W. Oak Street
Portland, Oregon 97204
Eurodollar Loan Funding Office:
Corporate Loan Servicing
555 S.W. Oak Street
Portland, Oregon 97204
<PAGE>
UNION BANK
By:
Name: Richard A. Sutter
Title: Vice President
350 California Street, 11th Floor
San Francisco, California 94101
Telephone: (415) 705-7090
Telecopy: (415) 705-7092
Person to whom Negotiated Loan correspondence
should be addressed:
Richard A. Sutter
Vice President
Telephone: (415) 705-7090
Telecopy: (415) 705-7092
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Richard A. Sutter
Vice President
Telephone: (415) 705-7090
Telecopy: (415) 705-7092
Base Rate Loan Funding Office:
350 California Street, 11th Floor
San Francisco, California 94101
Eurodollar Loan Funding Office:
350 California Street, 11th Floor
San Francisco, California 94101
<PAGE>
ABN AMRO BANK N.V.
By:
Name: Jeffrey Dodd
Title: Vice President
By:
Name: Patricia M. Luken
Title: Vice President
135 South LaSalle Street, Suite 425
Chicago, Illinois 60674-9135
Telephone: (312) 904-5362
Telecopy: (312) 606-8425
Telex: 6732700 (Answerback: ABN AMRO CGO)
Person to whom Negotiated Loan correspondence
should be addressed:
Loan Administration
Telephone: (312) 443-2149
Telecopy: (312) 606-8435
Telex: 6732700 (Answerback: ABN AMRO CGO)
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Loan Administration
Telephone: (312) 443-2149
Telecopy: (312) 606-8435
Telex: 6732700 (Answerback: ABN AMRO CGO)
Base Rate Loan Funding Office:
135 South LaSalle Street, Suite 425
Chicago, Illinois 60674-9135
Eurodollar Loan Funding Office:
135 South LaSalle Street, Suite 425
Chicago, Illinois 60674-9135
<PAGE>
FIRST BANK NATIONAL ASSOCIATION
By:
Name: Michael J. McGroarty
Title: Vice President
First Bank National Association
601 2nd Avenue South - MPFP0702
Minneapolis, Minnesota 55402-4302
Telephone: (612) 973-0552
Telecopy: (612) 973-0825
Backup Contact:
Brenda Everson
Commercial Associate
First Bank National Association
601 2nd Avenue South - MPFP0702
Minneapolis, Minnesota 55402-4302
Telephone: (612) 973-0653
Telecopy: (612) 973-0825
Person to whom Negotiated Loan correspondence
should be addressed:
Brenda Everson
Commericial Associate
First Bank National Association
601 2nd Avenue South - MPFP0702
Minneapolis, Minnesota 55402-4302
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Brenda Everson
Commericial Associate
First Bank National Association
601 2nd Avenue South - MPFP0702
Minneapolis, Minnesota 55402-4302
Base Rate Loan Funding Office:
First Bank National Association
First Bank Place
601 2nd Avenue South
Minneapolis, Minnesota 55402-4302
Eurodollar Loan Funding Office:
First Bank National Association
First Bank Place
601 2nd Avenue South
Minneapolis, Minnesota 55402-4302
<PAGE>
THE FIRST NATIONAL BANK OF BOSTON
By:
Name: Bethann Halligan
Title: Director
100 Federal Street
P. O. Box 2016
Boston, Massachusetts 02106-2016
Telephone: (617) 434-0144
Telecopy: (617) 434-0630 or (617) 434-6685
Person to whom Negotiated Loan correspondence
should be addressed:
Carol Rousseau
Account Administrator
Telephone: (617) 434-5777
Telecopy: (617) 434-0630
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Carol Rousseau
Account Administrator
Telephone: (617) 434-5777
Telecopy: (617) 434-0630
Base Rate Loan Funding Office:
100 Federal Street
U. S. Corporate
Boston, Massachusetts 02106
Eurodollar Loan Funding Office:
100 Federal Street
U. S. Corporate
Boston, Massachusetts 02106
<PAGE>
THE FUJI BANK, LIMITED
By:
Name: Peter L. Chinnici
Title: Joint General Manager
225 West Wacker Drive, Suite 2000
Chicago, Illinois 60606
Telephone: (312) 621-0515
Telecopy: (312) 621-0539
Person to whom Negotiated Loan correspondence
should be addressed:
James Fayen
Assistant Vice President
Telephone: (312) 621-0518
Telecopy: (312) 621-0539
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Cely Havarro
Loans Administration
Telephone: (312) 621-0538
Telecopy: (312) 621-0539
Base Rate Loan Funding Office:
The Fuji Bank, Limited
225 West Wacker Drive, Suite 2000
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
The Fuji Bank, Limited
225 West Wacker Drive, Suite 2000
Chicago, Illinois 60606
<PAGE>
PNC BANK, NATIONAL ASSOCIATION
By:
Name: Jon C. Otterberg
Title: Commercial Banking Officer
500 West Madison Street, Suite 3140
Chicago, Illinois 60661
Telephone: (312) 906-3425
Telecopy: (312) 906-3420
Person to whom Negotiated Loan correspondence
should be addressed:
Jon C. Otterberg
Commercial Banking Officer
Telephone: (312) 906-3425
Telecopy: (312) 906-3420
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Tammy Dunn
Administrative Secretary
Telephone: (312) 906-3403
Telecopy: (312) 906-3420
Base Rate Loan Funding Office:
PNC Bank, N.A.
Fifth Avenue and Wood Street
Pittsburgh, Pennsylvania 15222
Eurodollar Loan Funding Office:
PNC Bank, N.A.
Fifth Avenue and Wood Street
Pittsburgh, Pennsylvania 15222
<PAGE>
THE YASUDA TRUST AND BANKING CO., LTD.
By:
Name: Joseph C. Meek
Title: Vice President and Manager
181 West Madison Street, Suite 4500
Chicago, Illinois 60602
Telephone: (312) 683-3800
Telecopy: (312) 683-3899
Telex: 446831 YTBCH
Person to whom Negotiated Loan correspondence
should be addressed:
Douglas Warren
Vice President
Telephone: (312) 683-3839
Telecopy: (312) 683-3899
Telex: 446831 YTBCH
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Cindy Hartweger
Loan Administration
Telephone: (312) 683-3853
Telecopy: (312) 683-3899
Telex: 446831 YTBCH
Base Rate Loan Funding Office:
181 West Madison Street, Suite 4500
Chicago, Illinois 60602
Eurodollar Loan Funding Office:
181 West Madison Street, Suite 4500
Chicago, Illinois 60602
<PAGE>
THE FIRST NATIONAL BANK OF MARYLAND
By:
Name: James K. Fowler
Title: Vice President
25 South Charles Street
Baltimore, Maryland 21201
Telephone: (410) 244-4208
Telecopy: (410) 244-4294
Person to whom Negotiated Loan correspondence
should be addressed:
James K. Fowler
Vice President
Telephone: (410) 244-4208
Telecopy: (410) 244-4294
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
James K. Fowler
Vice President
Telephone: (410) 244-4208
Telecopy: (410) 244-4294
Base Rate Loan Funding Office:
25 South Charles Street
Baltimore, Maryland 21201
Eurodollar Loan Funding Office:
25 South Charles Street
Baltimore, Maryland 21201
<PAGE>
ISTITUTO BANCARIO SAN PAOLO DI TORINO,
S.P.A.
By:
Name: William DeAngelo
Title: First Vice President
245 Park Avenue
New York, NY 10167
Telephone: (212) 692-3150
Telecopy: (212) 599-5303
Telex: 220045 SPAOL UR
Person to whom Negotiated Loan correspondence
should be addressed:
Michele M. von Kroemer
Assistant Treasurer
Telephone: (212) 692-3196
Telecopy: (212) 599-5303
Telex: 220045 SPAOL UR
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Michele M. von Kroemer
Assistant Treasurer
Telephone: (212) 692-3196
Telecopy: (212) 599-5303
Telex: 220045 SPAOL UR
Base Rate Loan Funding Office:
Istituto Bancario san Paolo Bank di Torino,
S.p.A., New York Branch
245 Park Avenue
New York, New York 10167
Eurodollar Loan Funding Office:
Istituto Bancario san Paolo Bank di Torino,
S.p.A., New York Branch
245 Park Avenue
New York, New York 10167
<PAGE>
KREDIETBANK N.V.
By:
Name: Patricia McCann
Title: Vice President
By:
Name: Robert Snauffer
Title: Vice President and Senior
Credit Officer
125 West 55th Street, 10th Floor
New York, New York 10019
Telephone: (212) 541-0733
Telecopy: (212) 956-5580
Telex: MCI 661572 KREDIETNV
TRT 177789 KREDIETNV
RCA 236777
Person to whom Negotiated Loan correspondence
should be addressed:
Lynda Resuma
Assistant Treasurer
Telephone: (212) 541-0657
Telecopy: (212) 956-5580
Telex: MCI 661572 KREDIETNV
TRT 177789 KREDIETNV
RCA 236777
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Lynda Resuma
Assistant Treasurer
Telephone: (212) 541-0657
Telecopy: (212) 956-5580
Telex: MCI 661572 KREDIETNV
TRT 177789 KREDIETNV
RCA 236777
Base Rate Loan Funding Office, New York:
125 West 55th Street, 10th Floor
New York, New York 10019
<PAGE>
Eurodollar Loan Funding Office, Grand Caymen:
125 West 55th Street, 10th Floor
New York, New York 10019
<PAGE>
UNION BANK OF SWITZERLAND - CHICAGO BRANCH
By:
Name: Walter R. Wolff
Title: First Vice President
30 South Wacker Drive, 40th Floor
Chicago, Illinois 60606
Telephone: (312) 993-5450
Telecopy: (312) 993-5530
Person to whom Negotiated Loan correspondence
should be addressed:
Scott K. Werneburg
Credit Analyst
Telephone: (312) 993-5435
Telecopy: (312) 993-5530
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Scott K. Werneburg
Credit Analyst
Telephone: (312) 993-5435
Telecopy: (312) 993-5530
Base Rate Loan Funding Office:
Union Bank of Switzerland - Chicago Branch
30 South Wacker Drive, 40th Floor
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
Union Bank of Switzerland - Chicago Branch
30 South Wacker Drive, 40th Floor
Chicago, Illinois 60606
<PAGE>
WELLS FARGO BANK, N.A.
By:
Name: John Huber
Title: Vice President
420 Montgomery Street
San Francisco, California 94163
Telephone: (415) 396-2257
Telecopy: (415) 421-1352
Person to whom Negotiated Loan correspondence
should be addressed:
John Huber
Vice President
Telephone: (415) 396-2257
Telecopy: (415) 421-1352
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Gail Landers
Telephone: (415) 396-4915
Telecopy: (415) 989-4319
Base Rate Loan Funding Office:
Wells Fargo Bank, N.A.
420 Montgomery Street
San Francisco, California 94163
Eurodollar Loan Funding Office:
Wells Fargo Bank, N.A.
420 Montgomery Street
San Francisco, California 94163
<PAGE>
BANCA DI ROMA, S.P.A.
By:
Name: Aurora Pensa
Title: Vice President
By:
Name: Joyce Montgomery
Title: Assistant Vice President
225 West Washington Street
Chicago, Illinois 60606
Telephone: (312) 368-8855
Telecopy: (312) 726-3058
Telex: 190190 or 190107
Person to whom Negotiated Loan correspondence
should be addressed:
Aurora Pensa or Margaret Delay
Telephone: (312) 704-2630 or (312) 704-2594
Telecopy: (312) 726-3058
Telex: 190190 or 190107
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Vincenza Geraci
Telephone: (312) 704-2603
Telecopy: (312) 726-3058
Telex: 190190 or 190107
Base Rate Loan Funding Office:
Banca di Roma - Chicago Branch
225 West Washington Street
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
Banca di Roma - Chicago Branch
225 West Washington Street
Chicago, Illinois 60606
<PAGE>
COMERICA BANK
By:
Name: David L. Morrison
Title: Account Officer
500 Woodward Avenue, MC 3279
Detroit, Michigan 48226
Telephone: (313) 222-3808
Telecopy: (313) 222-3330
Person to whom Negotiated Loan correspondence
should be addressed:
Beverly V. Jones
Customer Assistant
Telephone: (313) 222-3805
Telecopy: (313) 222-3330
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Beverly V. Jones
Telephone: (313) 222-3805
Telecopy: (313) 222-3330
Base Rate Loan Funding Office:
Comerica Bank
500 Woodward Avenue, MC 3279
Detroit, Michigan 48226
Eurodollar Loan Funding Office:
Comerica Bank
500 Woodward Avenue, MC 3279
Detroit, Michigan 48226
<PAGE>
BANK OF AMERICA ILLINOIS
By:
Name: M. Kathleen McVay
Title: Authorized Officer
200 West Adams Street, Suite 2800
Chicago, Illinois 60606
Telephone: (312) 269-4644
Telecopy: (312) 269-4540
Person to whom Negotiated Loan correspondence
should be addressed:
M. Kathleen McVay
Senior Vice President
Telephone: (312) 269-4644
Telecopy: (312) 269-4540
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Pamela Quebbeman
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Telephone: (312) 828-3586
Telecopy: (312) 987-5500
Base Rate Loan Funding Office:
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Eurodollar Loan Funding Office:
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
<PAGE>
SCHEDULES AND EXHIBITS
to
LONG TERM CREDIT AGREEMENT
<PAGE>
SCHEDULE I
BANKS, COMMITMENTS AND TERMINATION DATES
(Sections 1.1, 2.7 and 15.4)
BANK NAME COMMITMENT TERMINATION
DATE
The Bank of New York 40,200,000 September 15, 1999
The Bank of Nova Scotia 40,200,000 September 15, 1999
CIBC Inc. 40,200,000 September 15, 1999
NationsBank of North Carolina 40,200,000 September 15, 1999
The Long-Term Credit Bank of
Japan, Ltd. 36,850,000 September 15, 1999
Credit Lyonnais Chicago Branch
and Credit Lyonnais Cayman
Island Branch 33,500,000 September 15, 1999
The First National Bank of
Chicago 33,500,000 September 15, 1999
Banca Commerciale Italiana,
Chicago Branch 20,100,000 September 15, 1999
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch 20,100,000 September 15, 1999
The Mitsubishi Bank, Limited,
Chicago Branch 20,100,000 September 15, 1999
Bank of America National Trust
and Savings Association 16,750,000 September 15, 1999
Bank of America Illinois 16,750,000 September 15, 1999
The Northern Trust Company 16,750,000 September 15, 1999
The Sakura Bank, Ltd. 16,750,000 September 15, 1999
The Sanwa Bank, Limited,
Chicago Branch 16,750,000 September 15, 1999
Swiss Bank Corporation 16,750,000 September 15, 1999
U.S. National Bank of Oregon 16,750,000 September 15, 1999
Union Bank 16,750,000 September 15, 1999
ABN AMRO Bank N.V. 13,400,000 September 15, 1999
First Bank Natioanl Association 13,400,000 September 15, 1999
The First National Bank of
Boston 13,400,000 September 15, 1999
The Fuji Bank, Limited 13,400,000 September 15, 1999
PNC Bank, National Association 13,400,000 September 15, 1999
The Yasuda Trust and Banking
Co., Ltd. 13,400,000 September 15, 1999
The First National Bank of
Maryland 10,050,000 September 15, 1999
Istituto Bancario San Paolo di
Torino, S.p.A., New York Branch 10,050,000 September 15, 1999
Kredietbank N.V. 10,050,000 September 15, 1999
Union Bank of Switzerland,
Chicago Branch 10,050,000 September 15, 1999
Wells Fargo Bank, N.A. 10,050,000 September 15, 1999
Banca di Roma, S.P.A. 6,700,000 September 15, 1999
Comerica Bank 6,700,000 September 15, 1999
603,000,000
<PAGE>
SCHEDULE IA
SPECIAL COMMITMENT FEE
(Section 6.5(b))
BANK NAME COMMITMENT
The Bank of New York 19,090,908
The Bank of Nova Scotia 19,090,908
CIBC Inc. 19,090,908
NationsBank of North Carolina 19,090,908
Bank of America National Trust
and Savings Association 15,909,092
Bank of America Illinois 15,909,092
The Long Term Credit Bank of
Japan, Ltd. 9,545,455
Credit Lyonnais Chicago Branch
and Credit Lyonnais Cayman
Island Branch 19,090,908
The First National Bank of
Chicago 9,545,455
Banca Commerciale Italiana,
Chicago Branch 6,363,636
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch 12,727,273
The Mitsubishi Bank, Limited,
Chicago Branch 12,727,273
The Northern Trust Company 12,727,273
The Sakura Bank, Ltd. 12,727,273
The Sanwa Bank, Limited,
Chicago Branch 12,727,273
Swiss Bank Corporation 9,545,455
U.S. National Bank of Oregon 9,545,455
Union Bank 6,363,636
ABN AMRO Bank N.V. 12,727,273
First Bank National Association 3,181,818
The First National Bank of
Boston 9,545,455
The Fuji Bank, Limited 0
PNC Bank, National Association 3,181,818
The Yasuda Trust and Banking
Co., Ltd. 9,545,455
The First National Bank of
Maryland 6,363,636
Istituto Bancario San Paolo di
Torino, S.p.A., New York Branch 9,545,455
Kredietbank N.V. 9,545,455
Union Bank of Switzerland,
Chicago Branch 9,545,455
Wells Fargo Bank, N.A. 0
Banca di Roma, S.P.A. 6,363,636
Comerica Bank 6,363,636
327,727,273
<PAGE>
SCHEDULE II
LITIGATION
(Section 10.5)
NONE
<PAGE>
SCHEDULE III
LIENS
(Section 10.7)
Security interests with respect to fixtures (excluding trade
or store fixtures) and documents related to real property which were
granted in connection with a financing of real property reflected in
the financial statements referred to in Section 10.4.
Security interests with respect to leases which might be
classified for some purposes as conditional sales contracts but which
the Company on its consolidated balance sheets included in the
financial statements referred to in Section 10.4 classified as assets
and obligations, respectively, under capital leases and similar such
liens which may have been incurred in connection with the acquisition
of assets after July 2, 1994.
Lien on the Dublin, California retail store property
securing certain indemnities extended by the Company, as sublessor,
and Toys 'R Us, as sublessee, under subleases at various retail stores
where the Company's lessor would not execute a non-disturbance
agreement with Toys 'R Us.
Other liens incurred in the ordinary course of business
which in the aggregate do not exceed $2,000,000.
<PAGE>
SCHEDULE IV
SUBSIDIARIES AND RESTRICTED SUBSIDIARIES
(Section 10.8)
Set forth below is a list of all Subsidiaries of the Company as
of September 15, 1994:
American Delivery Service Company (Del.)
Continental Transportation, Inc. (Del.)
Brandywine DC, Inc. (Fla.)
Brettward Properties Co., Inc. (Md.)
Furniture Investors, Inc. (Del.)
Huga Realty Inc. (Del.)
Jefferson Stores, Inc. (Nev.)
JRI Distributing, Inc. (Del.)
LMR Acquisition Corporation (Mass.)
Lechmere, Inc. (Mass.)
Marcor Housing Systems, Inc. (Del.)
Marinco Insurance U.S.A., Inc. (Vermont)
MF Nevada Investments, Inc. (Nev.)
Michaelward Properties Co., Inc. (Md.)
Montgomery Ward Development Corporation (Del.)
Barretward Properties Co., Inc. (Md.)
First Mont Corporation (Del.)
Gabeward Properties Corporation (Del.)
Garden Grove Development Corporation (Del.)
Joshward Properties Corporation (Del.)
Maryward Properties Corporation (Del.)
Montgomery Ward Land Corporation (Del.)
National Homefinding Service, Inc. (Del.)
Paulward Properties Co., Inc. (Md.)
Robertward Properties Corporation (Del.)
Second Mont Corporation (Del.)
Seventh Mont Corporation (Del.)
618 Corporation (Del.)
619 Corporation (Del.)
The 535 Corporation (Del.)
*University Avenue/Marketplace, Inc. (Del.)
MPI, Inc. (Del.)
*MW Direct General, Inc. (Del.)
*MW Direct Limited, Inc. (Del.)
MW Land Corporation (Del.)
Montgomery Ward Foundation (Ill., not-for-profit)
Montgomery Ward International, Inc. (Del.)
Montgomery Ward Hong Kong, Ltd. (Hong Kong)
Montgomery Ward Commercial Ltda. (Brazil)
Montgomery Ward Properties Corporation (Del.)
Brandywine Properties, Inc. (Del.)
M-W Fairfax Properties, Inc. (Va.)
*2825 Development Corporation (Del.)
Montgomery Ward Realty Corporation (Del.)
Montgomery Ward Securities, Inc. (Del.)
MW-Export, S.A. de C.V. (Mex.)
M-W Prestress, Inc. (Col.)
R M P Development Corporation (N. Mex.)
M-W Properties Corporation (Del.)
Fourth Wycombe Properties, Inc. (Del.)
M-W Restaurants Realty Corporation (Del.)
998 Monroe Corporation (Del.)
Sacward Properties, Inc. (Del.)
7th & Carroll Corporation (Del.)
Signature Financial/Marketing, Inc. (Del.)
Greater California Dental Plan (Calif.)
I.S.S. Agency, Inc. (Del.)
Montgomery Ward Auto Club, Inc. (Del.)
Montgomery Ward Enterprises, Inc. (Del.)
SignatureCard, Inc. (Ind.)
Montgomery Ward Insurance Company (Ill.)
Montgomery Ward Life Insurance Company (Ill.)
Forum Insurance Company (Ill.)
Montgomery Ward Agency, Inc. (Ill.)
Montgomery Ward Clubs, Inc. (Del.)
National Dental Services, Inc. (Del.)
Signature Dental Plan of Florida, Inc. (Fl.)
Signature Investment Advisors, Inc. (Del.)
Signature's Nationwide Auto Club, Inc. (Del.)
Signature Agency, Inc. (Del.)
Signature Agency - Wyoming, Inc. (Wyo.)
The Signature Life Insurance Company of America (Ill.)
Standard T. Chemical Company, Inc. (Del.)
Third Wycombe Properties, Inc. (Del.)
*2825 Realty Corporation (Del.)
Yard-Man Inc. (Del.)
WFL Realty, Inc. (Del.)
Except for those Subsidiaries listed above which are preceded by
an asterisk, the above-listed Subsidiaries are Restricted
Subsidiaries.
<PAGE>
SCHEDULE V
POST-RETIREMENT WELFARE PLAN BENEFITS
(Section 10.9)
The contents of footnote 6, entitled "Retirement Plans," to the
Company's audited consolidated financial statements as at January
1, 1994 are incorporated herein by reference which footnote
addresses the Montgomery Ward & Co., Incorporated Comprehensive
Health Care Plan and certain matters related thereto.
<PAGE>
SCHEDULE VI
SCHEDULE OF TAX SHARING ARRANGEMENTS
AMONG
PARENT AND ITS SUBSIDIARIES
(Section 11.5)
The following principles shall be applied with respect
to the Parent and its Subsidiaries in allocating tax liability
and tax benefits relating to federal, state, local and foreign
taxes:
(a) Payments shall be permitted to be made between
members of an affiliated group filing a federal consolidated
return, within the meaning of the federal income tax laws
and the regulations thereunder, to effectuate an allocation
of the tax liability among members of the affiliated group
in accordance with the principles set forth in 26 C.F.R.
paragraph 1.1552-1 and 26 C.F.R. paragraph 1.1502-33(d) and related
regulations. Similar principles shall apply for state,
local and foreign income and franchise tax purposes where
tax liability is determined on a unitary basis or reportable
on a combined or consolidated return involving more than one
corporation.
(b) The principles described in (a) above may be
modified to the extent necessary to permit allocation of tax
liability to any member on the basis of what would be that
member's stand-alone tax liability, notwithstanding
technical considerations set forth in the regulations.
(c) The determinations of the allocations for tax
liability pursuant to this Schedule shall be made in the
manner determined by the Parent or the Company, without
regard to the actual manner of dealing with the taxing
authorities.
(d) The principles applied pursuant to this Schedule
shall in all material respects be consistently applied from
year to year.
Reference herein to tax liabilities include items of
negative tax liability, i.e., tax benefits.
<PAGE>
SCHEDULE VII
MANAGEMENT INVESTORS
(Section 1.1)
1. Dominic M. Mangone
2. Mary Jo Marando as Trustee of the Joseph Mangone Trust dated
June 19, 1988
3. Mary Jo Marando as Trustee of the Elizabeth Mangone Trust
dated June 19, 1988
4. Mary Jo Marando as Trustee of the Gina Mangone Trust dated
June 19, 1988
5. Mary Jo Marando as Trustee of the Michael Marando Trust
dated June 19, 1988
6. Daniel F. Darr
7. John Bevan
8. William J. McCarthy
9. Henry Goldsmith
10. William Marginson
11. Larry J. Farrar
12. Daniel H. Levy
13. The Alan Mark Levy Irrevocable Trust dated July 11, 1988
14. The Michael Scott Levy Irrevocable Trust dated July 11, 1988
15. Donald L. Docken and Kathleen S. Docken, Trustees or their
successors in trust under the Donald L. Docken Living Trust
dated December 21, 1991
16. Malvin Pavik
17. Alvin Pavik, as Trustee of the Malvin Pavik Family Trust
under Trust Agreement dated September 30, 1988
18. Alvin Pavik, as Trustee of the Alan C. Pavik Trust under
Trust Agreement dated September 30, 1988
19. Alvin Pavik, as Trustee of the James A. Pavik Trust under
Trust Agreement dated September 30, 1988
20. Alvin Pavik, as Trustee of the Paul T. Pavik Trust under
Trust Agreement dated September 30, 1988
21. Alvin Pavik, as Trustee of the Debra L. Porter Trust under
Trust Agreement dated September 30, 1988
22. Alvin Pavik, as Trustee of the Joan L. Geckle Trust under
Trust Agreement dated September 30, 1988
23. Alvin Pavik, as Trustee of the Linda A. Pavik Trust under
Trust Agreement dated September 30, 1988
24. Alvin Pavik, as Trustee of the Douglas T. Pavik Trust under
Trust Agreement dated September 30, 1988
25. Alvin Pavik, as Trustee of the Kimberly S. Pavik Trust under
Trust Agreement dated September 30, 1988
26. Alvin Pavik, as Trustee of Pavik Discretionary Trust under
Trust Agreement dated December 9, 1988
27. Harold D. Kahn
28. Leslie A. Ball
29. Elizabeth Hebb-Sweney
<PAGE>
SCHEDULE VIII
FINDER'S LIST
(Section 1.1)
"Adjusted Commitment" - used in Section 8.2(a)(B).
"Administrative Agent" - used throughout.
"Advisory Agent" - used in the Preamble and in definition of
Agent.
"Affiliate" - used in definition of Funding Office and in
Sections 10.12, 11.2(viii), 14.7, 15.4(a)(iii) and 15.4(d).
"Agent(s)" - used throughout.
"Agent Parties" - used in Section 14.2.
"Aggregate Commitment" - used in definition of Termination Date
and in Sections 2.2(b), 2.6(b), 2.7, 4.2 and 6.5(a).
"Agreement" - used throughout.
"Applicable Agent" - used in Sections 8.1(a), 8.4, 9.1(b), 14.4,
15.2(a) and 15.4.
"Assignee(s)" - used in Sections 8.2(c), 14.4(b), 14.6, 15.4(b)
and 15.4(d).
"Assignment" - used in definition of Funding Office and in
Section 15.4(b).
"Authorized Officer" - used in Sections 2.7(a), 11.1(c), 11.1(i),
11.6(iii) and 12.1(a).
"Bank(s)" - used throughout.
"Bank Parties" - used in Section 15.6.
"Base Rate" - used in definition of Base Rate Loan and in
Sections 3.4, 6.1, 6.8 and 14.4.
"Base Rate Loan" - used throughout.
"Business Day" - used throughout.
"Capital Base" - used in definition of Total Capitalization.
"Capitalized Lease Obligations" - used in definition of Debt.
"Change" - used in Section 9.1(b).
"Change of Control" - used in Sections 5, 9.5, 11.1(h), 11.6(vii)
and 13.1(h).
"Class A Common Stock" - used in definitions of Management
Investor and Outstanding Original Shares and in Section 13.1(h).
"Code" - used in definitions of ERISA, ERISA Affiliate and in
Sections 10.9 and 11.8.
"Commitment" - used throughout.
"Company" - used throughout.
"Company Register" - used in Section 8.5.
"Conditional Sale Obligations" - used in definition of
Indebtedness for Borrowed Money.
"Consolidated Net Income" - used in definition of Ratio of
Earnings to Fixed Charges and in Sections 11.3, 11.5(ii) and
15.3(b).
"Consolidated Shareholder's Equity" - used in definition of
Capital Base and in Sections 11.3 and 15.3(b).
"Continue", "Continuation" and "Continued" - used in definition
of Interest Period and in Sections 1.2, 7.2, 9.3, 9.5, 12.2 and
15.2(a).
"Conversion Notice" - used in Sections 6.4(b) and 7.2.
"Convert", "Conversion" and "Converted" - used in definition of
Interest Period and in Sections 1.2, 6.3, 7.2, 9.3, 9.5, 12.2 and
15.2(a).
"Corporate Transactions" - used in Section 11.6.
"Debt" - used in definition of Total Capitalization and in
Sections 11.4, 11.6, 11.17, 11.18 and 15.3(b).
"Debt-Like Preferred Stock" - used in definition of Total
Capitalization and Sections 11.5, 11.18 and 13.1(h).
"Displaced Loans" - used in Section 6.6.
"Documentary Agent" - used in Preamble and in Sections 12.1,
15.5(a) and 15.11.
"Dollar(s)" and the sign "$" - used throughout.
"Effective Date" - used throughout.
"Equalization Amount" - used in Section 8.4(c).
"ERISA" - used in definitions of ERISA Affiliate, Finance
Obligations, Multiemployer Plan, PBGC, Plan, Reportable Event and
Welfare Plan, and in Sections 10.9 and 11.8.
"ERISA Affiliate" - used in definition of Multiemployer Plan and
Plan and in Sections 10.9 and 11.8.
"Eurocurrency Reserve Percentage" - used in the definition of
Eurodollar Rate (Reserve Adjusted).
"Eurodollar Loan" - used throughout.
"Eurodollar Margin Increment" - used in Sections 6.1(b), 6.2, 6.3
and 6.9.
"Eurodollar Rate" - used in various definitions and in
Sections 6.1(b), 6.4(b), 7.1(a), 7.2, 9.1(a), 9.3 and 9.6(a).
"Eurodollar Rate (Reserve Adjusted)" - used in various
definitions and in Section 9.1.
"Event of Default" - used throughout.
"Existing Credit Agreements" - used in Sections 10.18 and 12.1.
"Existing Termination Date" - used in Section 2.7.
"Extension Banks" - used in Section 2.7.
"Extension Reply" - used in Section 2.7.
"Extension Request" - used in Section 2.7.
"FAS 106 Capital Base Factor" - used in definition of Capital
Base.
"FAS 106 Minimum Equity Factor" - used in Section 11.3.
"FAS 106 Restricted Payment Factor" - used in Section 11.5.
"Federal Funds Rate" - used in definition of Base Rate and in
Sections 4.3, 7.1(i) and 14.4.
"Fee Increase" - used in Section 6.9.
"Finance Obligations" - used in Section 13.1(c).
"Fiscal Quarter" - used throughout.
"Fiscal Year" - used throughout.
"Fixed Rate Loan(s)" - used in Sections 6.1, 8.1, 9.2, 9.4, 9.5
and 9.6.
"Funding Date" - used in definition of Interest Period and in
Sections 1.2, 4.3, 6.1, 7.1, and 14.4.
"Funding Office" - used in definition of Base Rate and in
Sections 3.3, 3.4, 4.3, 7.1, 8.4, 9.1, 9.2 and 9.6.
"GAAP" - used throughout.
"GE Capital" - used in definitions of MWCC Receivables Purchase
Agreement and Qualified Purchaser.
"Group" - used in Sections 1.2, 2.2, 7.2, 8.1 and 8.5.
"Guaranty" - used in definitions of Debt, Finance Obligations,
Indebtedness for Borrowed Money, MWCC Receivables Purchase
Agreement.
"Indebtedness for Borrowed Money" - used in definitions of Debt
and Finance Obligation and in Section 11.2(xix).
"Indemnified Liabilities" - used in Section 15.6.
"Interest Period" - used throughout.
"Liabilities" - used in definitions of Debt-Like Preferred Stock
and Subordinated Debt and in Sections 5, 8.2, 8.3, 8.4, 11.6(i),
13.2, 14.2, 15.4(e) and 15.6.
"Lien" - used in definition of Indebtedness for Borrowed Money
and in Sections 10.2, 10.6, 10.7, 11.2, 11.6(i) and 13.1(h).
"Litigation" - used in definition of Material Litigation and in
Section 11.1(g).
"Loan Request" - used in Sections 4.3(b), 6.4(b), 7.1 and 15.2.
"Loans" - used throughout.
"Management Investor" - used in definitions of Outstanding
Original Shares and Qualified Purchaser.
"Margin Stock" - used in Sections 10.12, 11.16 and 15.7.
"Master Register" - used in Sections 8.5 and 15.2(a).
"Material Litigation" or "Material Litigation Development" - used
in Section 10.5.
"Mobil" - used in Section 10.14(c).
"MWCC" - used in definition of MWCC Receivables Purchase
Agreement and in Sections 13.1(j) and 15.3(c).
"MWCC Receivables Purchase Agreement" - used in definition of
Material Litigation and in Sections 11.1, 11.2, 13.1 and 15.3.
"Multiemployer Plan" - used in Section 11.8.
"Negotiated Loan Agent" - used in Preamble and in definitions of
Applicable Agent and Funding Office and in Sections 2.7(a), 4.3,
4.4, 8.2(b), 8.5, 9.3(b) and 9.5.
"Negotiated Loan Confirmation" - used in definitions of Funding
Office, Interest Period and Loan Request and in Sections 4.3,
4.4, 6.8, 8.1(b), 9.3, 9.8 and 15.2.
"Negotiated Loan Register" - used in Section 8.5.
"Negotiated Loans" - used throughout.
"Negotiated Note(s)" - used in definition of Notes and in
Sections 4.5, 12.1(ii) and 15.4(b).
"Non-Restricted Subsidiary" - used throughout.
"Non-United States Person" - used in Sections 8.4(b) and 15.4(b).
"Notes" - used throughout.
"Outstanding Original Shares" - used in definition of Change of
Control.
"Parent" - used in definitions of Change of Control, Class A
Common Stock, Management Investors, Outstanding Original Shares,
Parent Shareholder's Agreement, Qualified Purchaser and Total
Capitalization and in Sections 10.5, 10.12, 10.14(b), 11.1(e),
11.1(g), 11.5, 11.5(vi), 11.5(y), 13.1(c), 13.1(h) and 15.4(c).
"Parent Shareholders' Agreement" - used in the definition of
Outstanding Original Shares.
"Participant(s)" - used in Sections 8.2, 14.6 and 15.4.
"Payment Sharing Notice" - used Sections 8.2 and 8.5(b).
"PBGC" - used in Section 11.8.
"Percentage" - used in Section 2.1, 2.2(a), 7.2(a), 8.1(b) and
8.5(b).
"Permitted Lien" - used throughout.
"Person" - used throughout.
"Plan" - used in Sections 10.9 and 11.8.
"Qualified Purchaser" - used in definition of Change of Control.
"Ratio of Earnings to Fixed Charges" - used in definition of
Ratio Period and in Sections 6.2, 6.5, 6.9, 11.3 and 15.3(b).
"Ratio Period" - used throughout.
"Reference Banks" - used definition of Eurodollar Rate and in
Sections 6.4 and 9.3.
"Regulation D" - used in definition of Eurocurrency Reserve
Percentage and in Sections 9.1 and 9.2.
"Regulation U" - used in definition of Margin Stock and in
Sections 10.12, 11.16 and 15.7.
"Regulation X" - used in definition of Margin Stock and
Section 10.12.
"Renewal Date" - used in Section 2.7.
"Renewed Termination Date" - used in Section 2.7.
"Replacement Agreement" - used in Section 15.4(e).
"Replacement Bank" - used in Section 15.4(d).
"Reply Date" - used in Section 2.7.
"Reportable Event" - used throughout.
"Required Banks" - used in definition of Subordinated Debt and in
Sections 5, 9.3(b), 11, 12.1(a), 12.2, 13.1(j), 13.2, 14.1, 14.3,
14.8, 15.1 and 15.5(a).
"Restricted Payment" - used in definition of Total Capitalization
and in Section 11.5.
"Restricted Subsidiary" - used throughout.
"Revolving Loans" - used throughout.
"Revolving Loan Request" - used in Section 7.1.
"Revolving Note" - used throughout.
"Risk-Based Capital Guidelines" - used in Section 9.1(b).
"SEC" - used in definition of Change of Control and Section 11.
"Secured Indebtedness" - used in Section 11.2(xix).
"Short Term Credit Agreement" - used in definition of Existing
Credit Agreements and in Sections 2.7, 3.2, 11.2(xii),
12.1(a)(i), 12.1(b), 13.1(k), 15.4(b) and 15.4(e).
"Special Commitment Fee Termination Date" - used in Section
6.5(b).
"Special Restricted Subsidiary" - used in Section 13.1.
"Subordinated Debt" - used in definitions of Capital Base, Debt
and Total Capitalization and in Section 11.17.
"Subsidiary" - used throughout.
"Successor to Parent" - used in definition of Parent and in
Section 13.1(h).
"Swing Loan(s)" - used throughout.
"Swing Loan Bank" - used in Sections 3.3, 3.4, 3.6 and 8.1.
"Swing Loan Percentage" - used in Section 3.6.
"Swing Loan Request" - used in definition of Loan Request and in
Section 3.3.
"Swing Note(s)" - used in definition of Notes and in Section 3.5,
12.1(a)(ii) and 15.4(b).
"Tax Benefit" - used in Section 8.4(c).
"Taxes" - used in Section 8.4.
"Terminated Bank" - used in Section 15.4(e).
"Termination Date" - used in definitions of Interest Period and
Subordinated Debt and in Sections 2.1, 2.4, 2.7, 3.4, 4.4, 6.3,
6.5 and 6.6.
"Total Capitalization" - used in Sections 11.4, 11.6 and 15.3(b).
"Type" - used in definition of Funding Office and in Sections
1.2, 6.8, 7.2 and 8.5.
"Unmatured Event of Default" - used in definition of Restricted
Subsidiary and in Sections 2.7(e), 10.15, 11.1, 11.5, 11.6,
11.17, 11.18, 12.1, 12.2(a), 14.5, 14.8(b) and 15.4(e).
"Unused" - used in Sections 2.2(a), 3.2, 6.5 and 6.6.
"Welfare Plan" - used in Section 10.9.<PAGE>
EXHIBIT A
FORM OF REVOLVING NOTE
(Section 2.5)
$ September 15, 1994
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned hereby promises to pay
to the order of
(the "Bank") at the office of the Administrative Agent specified
in the Credit Agreement hereinafter referred to, the principal
amount of DOLLARS ($ ) or, if less, the
aggregate unpaid principal amount of all Revolving Loans made by
the Bank to the undersigned pursuant to the Credit Agreement (as
shown in the records of the Bank or, at the Bank's option, on the
schedule attached hereto and any continuation thereof). The
principal amount of each Revolving Loan evidenced hereby shall be
payable on or before the Bank's Termination Date.
The undersigned further promises to pay interest on the
unpaid principal amount of each Revolving Loan evidenced by this
Note from the date of such Revolving Loan until such Revolving
Loan is paid in full, payable at such rate(s) and at such time(s)
as provided in the Credit Agreement.
This Note evidences indebtedness incurred under, and is sub-
ject to the terms and provisions of, the Long Term Credit
Agreement dated as of September 15, 1994 (as the same may be
amended, modified or supplemented from time to time, the "Credit
Agreement"), among the undersigned, certain banks (including the
Bank) and certain agents (including the Administrative Agent), to
which Credit Agreement reference is hereby made for a statement
of said terms and provisions. Terms used but not otherwise
defined herein are used herein as defined in the Credit
Agreement.
In addition to and not in limitation of the foregoing, but
subject to the provisions of the Credit Agreement, the
undersigned further agrees to pay on demand all attorneys' fees
and legal expenses (including allocated costs of staff counsel)
incurred by the holder of this Note in connection with the
enforcement of this Note, and any and all amendments,
modifications, replacements or restatements relating to this
Note.
This Note is made under and governed by the laws of the
State of Illinois without regard to conflict of laws principles.
MONTGOMERY WARD & CO., INCORPORATED
By
Title
<PAGE>
Schedule attached to Revolving Note dated September 15, 1994 of
MONTGOMERY WARD & CO., INCORPORATED payable to the order of
.
Date of Loan, Interest
Conversion or Interest Amount of Rate Per Amount ofNotation
Continuation Period Loan Annum Payment Made By
<PAGE>
EXHIBIT B
FORM OF EXTENSION REQUEST
(Section 2.7)
[Date]
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Documentary Agent
One First National Plaza
Chicago, Illinois 60670
THE BANK OF NOVA SCOTIA,
individually and as Administrative Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
THE BANK OF NEW YORK,
individually and as Negotiated Loan Agent
One Wall Street
New York, New York 10286
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
individually and as Advisory Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
The Banks listed on Schedule I
attached hereto and parties to the
Credit Agreement referred to below
Gentlemen:
This constitutes an Extension Request pursuant to the Long
Term Credit Agreement dated as of September 15, 1994 (as amended,
modified or supplemented, the "Credit Agreement"), among
Montgomery Ward & Co., Incorporated (the "Company"), the banks
named therein and the agents named therein. Terms not otherwise
expressly defined herein shall have the meanings set forth in the
Credit Agreement.
The Company hereby requests that the Termination Date
be extended to ________________, 19__. The Company hereby
further requests that you indicate your consent to this requested
extension by executing both copies of the enclosed Extension
Reply and returning one copy to the Company and one copy to The
Bank of Nova Scotia by not later than _____________, 19___.
Very truly yours,
MONTGOMERY WARD & CO.,
INCORPORATED
By:
Its:
<PAGE>
SCHEDULE I
To Extension Request dated ______________, 19__
<PAGE>
EXHIBIT C
FORM OF EXTENSION REPLY
(Section 2.7)
[Bank's Letterhead]
[Dated on or before the Reply Date]
Montgomery Ward & Co., Incorporated
Montgomery Ward Plaza
844 North Larrabee
Chicago, Illinois 60671
Attention: Treasurer
The Bank of Nova Scotia,
as Administrative Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
Re: Montgomery Ward & Co., Incorporated
Ladies and Gentlemen:
The undersigned, pursuant and subject to the provisions of
that certain Long Term Credit Agreement dated as of September 15,
1994 (as amended, modified or supplemented, the "Credit
Agreement"), among Montgomery Ward & Co., Incorporated (the
"Company"), the banks named therein and the agents named therein
hereby [consents to] [does not consent to] the Extension Request
of the Company dated , 19 .
Very truly yours,
[name of Bank]
By:
Its:
<PAGE>
EXHIBIT D
FORM OF SWING NOTE
(Section 3.5)
$ September 15, 1994
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned hereby promises to pay
to the order of ____________________________ (the "Bank") at the
Bank's office specified in the Credit Agreement hereinafter
referred to, the principal amount of DOLLARS
($__________) or, if less, the aggregate unpaid principal amount
of all Swing Loans made by the Bank to the undersigned pursuant
to the Credit Agreement (as shown in the records of the Bank or,
at the Bank's option, on the schedule attached hereto and any
continuation thereof). The principal amount of each Swing Loan
evidenced hereby shall be payable on the dates specified in the
Credit Agreement and in any event, on or before the Bank's
Termination Date.
The undersigned further promises to pay interest on the
unpaid principal amount of each Swing Loan evidenced by this Note
from the date of such Swing Loan until such Swing Loan is paid in
full, payable at such rate(s) and at such time(s) as provided in
the Credit Agreement.
This Note evidences indebtedness incurred under, and is sub-
ject to the terms and provisions of, the Long Term Credit
Agreement dated as of September 15, 1994 (as the same may be
amended, modified or supplemented from time to time, the "Credit
Agreement"), among the undersigned, certain banks (including the
Bank) and certain agents, to which Credit Agreement reference is
hereby made for a statement of said terms and provisions. Terms
used but not otherwise defined herein are used herein as defined
in the Credit Agreement.
In addition to and not in limitation of the foregoing, but
subject to the provisions of the Credit Agreement, the
undersigned further agrees to pay on demand all attorneys' fees
and legal expenses (including allocated costs of staff counsel)
incurred by the holder of this Note in connection with the
enforcement of this Note, and any and all amendments,
modifications, replacements or restatements relating to this
Note.
This Note is made under and governed by the laws of the
State of Illinois without regard to conflict of laws principles.
MONTGOMERY WARD & CO., INCORPORATED
By_________________________________
Title______________________________
<PAGE>
Schedule attached to Swing Note dated September 15, 1994 of
MONTGOMERY WARD & CO., INCORPORATED payable to the order of
___________________________.
Interest
Date of Maturity Amount of Rate Per Amount of Notation
Loan Date Loan Annum Payment Made By
<PAGE>
EXHIBIT E
FORM OF NEGOTIATED NOTE
(Section 4.5)
$__________________________ September 15, 1994
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned hereby promises to pay
to the order of
(the "Bank") at the office of
the Negotiated Loan Agent specified in the Credit Agreement
hereinafter referred to, the principal amount of ______________
MILLION DOLLARS ($________________) or, if less, the aggregate
unpaid principal amount of all Negotiated Loans made by the Bank
to the undersigned pursuant to the Credit Agreement (as shown in
the records of the Bank or, at the Bank's option, on the schedule
attached hereto and any continuation thereof). The principal
amount of each Negotiated Loan evidenced hereby shall be payable
at the expiration of the Interest Period applicable thereto and,
in any event, on or before the Bank's Termination Date.
The undersigned further promises to pay interest, at the
office of the Bank specified in the Credit Agreement, on the
unpaid principal amount of each Negotiated Loan from the date of
such Negotiated Loan until such Negotiated Loan is paid in full,
payable at such rate(s) and at such time(s) as provided in the
Credit Agreement.
This Note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Long Term Credit
Agreement dated as of September 15, 1994 (as the same may be
amended, modified or supplemented from time to time, the "Credit
Agreement"), among the undersigned, certain banks (including the
Bank) and certain agents (including the Negotiated Loan Agent),
to which Credit Agreement reference is hereby made for a
statement of said terms and provisions. Terms used but not
otherwise defined herein are used herein as defined in the Credit
Agreement.
In addition to and not in limitation of the foregoing, but
subject to the provisions of the Credit Agreement, the
undersigned further agrees to pay on demand all attorneys' fees
and legal expenses (including allocated costs of staff counsel)
incurred by the holder of this Note in connection with the
enforcement of this Note and any and all amendments,
modifications, replacements or restatements relating to this
Note.
This Note is made under and governed by the laws of the
State of Illinois without regard to conflict of laws principles.
MONTGOMERY WARD & CO., INCORPORATED
By_________________________________
Title______________________________
<PAGE>
Schedule attached to Negotiated Loan Note dated September 15,
1994 of MONTGOMERY WARD & CO., INCORPORATED payable to the order
of ______________________________.
Date Interest
of Interest Maturity Amount of Rate Per Amount ofNotation
Loan Period Date Loan Annum Payment Made By
<PAGE>
EXHIBIT F
FORM OF REVOLVING LOAN REQUEST
(Section 7.1)
____________________, 19__
THE BANK OF NOVA SCOTIA,
as Administrative Agent
Atlanta Agency
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
Attention: __________________
Ladies and Gentlemen:
This constitutes a Revolving Loan Request for Revolving
Loans under and as defined by the Long Term Credit Agreement,
dated as of September 15, 1994 (as amended, modified or
supplemented, the "Credit Agreement"), among Montgomery Ward &
Co., Incorporated (the "Company"), the Banks and Agents referred
to therein and The Bank of Nova Scotia, as Administrative Agent.
Terms not otherwise expressly defined herein shall have the
meanings set forth in the Credit Agreement.
The Company hereby requests the following Revolving Loans,
on the terms and subject to the conditions of the Credit
Agreement:
(a) Aggregate Principal Amount: $_______________.
(b) Funding Date:_______________, 19__.
(c) Type of Loan: [Eurodollar Loan] [Base Rate Loan]
[(d) Interest Period:_______________ months.]
The Company hereby certifies, represents and warrants to the
Agents and the Banks as follows:
(i) no Event of Default or Unmatured Event of Default
has occurred and is continuing as of the date hereof or
shall result from the making of the Loans requested hereby,
(ii) the Company's representations and warranties
contained in Sections 10.1, 10.2, 10.3, 10.4(a), 10.7,
10.10, 10.11, 10.12, 10.15, and 10.18 of the Credit
Agreement shall be true and correct as of the Funding Date
of the Loans requested hereby with the same effect as though
made on such date, and
(iii) all conditions to the making of the Loans
requested herein will be satisfied as of the Funding Date of
such requested Loans.
Very truly yours,
MONTGOMERY WARD & CO., INCORPORATED
By:___________________________
Its:_______________________________
cc: The Bank of Nova Scotia
Chicago Representative Office
181 West Madison Street, Suite 3700
Chicago, Illinois 60602
<PAGE>
EXHIBIT G
FORM OF SWING LOAN REQUEST
(Section 3.3)
, 19__
THE BANK OF NOVA SCOTIA,
as Administrative Agent
Atlanta Agency
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
Attention:
______________________, as
Swing Loan Bank
[Address]
Ladies and Gentlemen:
This constitutes a Swing Loan Request under that certain
Long Term Credit Agreement, dated as of September 15, 1994 (as
amended, modified or supplemented, the "Credit Agreement"), among
Montgomery Ward & Co., Incorporated (the "Company"), and the
Banks and Agents referred to therein. Terms not otherwise
expressly defined herein shall have the meanings set forth in the
Credit Agreement.
The Company hereby requests a Swing Loan, subject to the
terms of the Credit Agreement, as follows:
(a) Funding Date: , 19__.
(b) Aggregate principal amount of Loan requested:
$
(c) Interest Period ending date: ,
19__.
The Company hereby certifies, represents and warrants to the
Agents and the Banks as follows:
(i) no Event of Default or Unmatured Event of Default
has occurred and is continuing as of the date hereof or
shall result from the making of the Swing Loan requested
hereby,
(ii) the Company's representations and warranties
contained in Sections 10.1, 10.2, 10.3, 10.4(a), 10.7,
10.10, 10.11, 10.12, 10.15, and 10.18 of the Credit
Agreement shall be true and correct as of the date of the
making of the Swing Loan requested hereby with the same
effect as though made on such date, and
(iii) all conditions to the making of the Swing Loan
requested hereby will be satisfied as of the Funding Date of
such requested Swing Loan.
Very truly yours,
MONTGOMERY WARD & CO., INCORPORATED
By:
Its:
cc: The Bank of Nova Scotia
Chicago Representative Office
181 West Madison Street, Suite 3700
Chicago, Illinois 60602
<PAGE>
EXHIBIT H
FORM OF NEGOTIATED LOAN CONFIRMATION
(Section 4.3)
, 19__
_____________________,
as Negotiated Loan Bank
_____________________
_____________________
Ladies and Gentlemen:
This constitutes a Negotiated Loan Confirmation under that
certain Long Term Credit Agreement, dated as of September 15,
1994 (as amended, modified or supplemented, the "Credit
Agreement"), among Montgomery Ward & Co., Incorporated (the
"Company") and the Banks and Agents referred to therein. Terms
not otherwise expressly defined herein shall have the meanings
set forth in the Credit Agreement.
The Company hereby confirms its request for a Negotiated
Loan, subject to the terms of the Credit Agreement, as follows:
(a) Funding Date: , 19__.
(b) Principal amount of Negotiated Loan requested:
$__________________.
(c) Interest Period ending date: , 19__.
(d) Interest Rate: ______________; payable on
_____________.
(e) Interest calculated on a 360 day year or 365
day year .
(f) [The Negotiated Loan may be prepaid at any time
without premium or penalty]. [Upon the prepayment
of the Negotiated Loan prior to maturity, the
Company shall also pay the following prepayment
premium ____________.]
(g) Funding office: ________________________________.
(h) Sections 9.1 through 9.6 apply to the Negotiated
Loan requested hereby [ ].
(i) Other terms: ____________________________________
_________________________________________________.
The Company hereby reaffirms that all provisions of the
Credit Agreement, including without limitation Sections 11 and 13
thereof, apply to the Negotiated Loan requested hereby and
certifies, represents and warrants to the Agents and the Banks as
follows:
(i) no Event of Default or Unmatured Event of Default
has occurred and is continuing as of the date hereof or
shall result from the making of the Negotiated Loan
requested hereby,
(ii) the Company's representations and warranties
contained in Sections 10.1, 10.2, 10.3, 10.4(a), 10.7,
10.10, 10.11, 10.12, 10.15, and 10.18 of the Credit
Agreement shall be true and correct as of the date of the
making of the Negotiated Loan requested hereby with the same
effect as though made on such date, and
(iii) all conditions to the making of the Negotiated
Loan requested herein have been or will be satisfied as of
the Funding Date of such requested Negotiated Loan.
Very truly yours,
MONTGOMERY WARD & CO., INCORPORATED
By:
Its:
Acknowledged and Agreed this
____ day of ___________ 19__.
[Name of Bank]
By:__________________________
Its:_________________________<PAGE>
EXHIBIT I
FORM OF OFFICER'S CERTIFICATE
(Section 11.1(c))
To: The Banks and the Agents
parties to the Credit Agreement
referred to below
This Certificate is furnished pursuant to Section 11.1(c) of
the Long Term Credit Agreement, dated as of September 15, 1994
(the "Credit Agreement") among Montgomery Ward & Co.,
Incorporated, an Illinois corporation (the "Company"), the banks
named therein (the "Banks") and the agents named therein (the
"Agents"). Capitalized terms used herein but not otherwise
defined herein shall have the same meanings as those assigned to
them in the Credit Agreement.
I hereby certify to the Banks and the Agents, on behalf of
the Company, as follows:
1. Since _______________, 19__, I have been the duly
qualified and acting ____________ of the Company, and I am
familiar with the financial statements and financial affairs of
the Company. I am authorized to execute this Certificate on
behalf of the Company.
2. A true and correct copy of the [annual audit report]
[quarterly unaudited consolidated financial statement] of the
Company and its Subsidiaries for the [Fiscal Year] [Fiscal
Quarter] ended on _______________, 19__, is attached hereto as
Annex A.
3. To the best of my knowledge, as of the date of this
Certificate, no Event of Default or Unmatured Event of Default
has occurred and is continuing [except as follows: [include
description of any such event and the steps being taken, if any,
with respect thereto]].
4. Attached hereto as Annex B is a true and correct
computation, to the best of my knowledge, as of the dates
referred to therein of the financial ratios and/or financial
restrictions contained in Sections 11.3, 11.4 and 11.5 of the
Credit Agreement and of the Ratio of Earnings to Fixed Charges.
5. Attached hereto as Annex C is a complete description (to
the extent such disclosure would be required to be made by the
Company if the Company were a public reporting company under the
Securities Exchange Act of 1934, as amended) to the best of my
knowledge, as of the date of this Certificate of any Material
Litigation which has been instituted or any Material Litigation
Development which has occurred since the date of the most recent
Officer's Certificate of the Company [or, in the case of the
first Officer's Certificate, since the Effective Date].
6. Attached hereto as Annex D is a true, correct and
complete list, to the best of my knowledge, as of the date of
this Certificate of any [changes in the list of Restricted
Subsidiaries (excluding Special Restricted Subsidiaries) which
have occurred since the date of the most recent Officer's
Certificate [or, in the case of the first Officer's Certificate,
since the Effective Date]] [changes in the list of the
Company's Subsidiaries or in the list of Restricted Subsidiaries
which have occurred since the date of the Officer's Certificate
of the Company dated as of the close of the Company's immediately
preceding Fiscal Year [or, in the case of the first Officer's
Certificate dated as of the close of the Fiscal Year containing
the Effective Date, since the Effective Date]].
IN WITNESS WHEREOF, I have hereunto set my hand this ____
day of _______________, 19__.
___________________________
Name:_________________________
Title:________________________
of Montgomery Ward
& Co., Incorporated
<PAGE>
ANNEX A
TO OFFICER'S CERTIFICATE DATED AS OF , 19
[Attach copy of annual audit report or quarterly unaudited
consolidated financial statement, as appropriate]
<PAGE>
ANNEX B TO
EXHIBIT I
TO OFFICER'S CERTIFICATE DATED AS OF , 19
1. Section 11.3 - Minimum Consolidated Shareholder's Equity as
of the end of Fiscal Year ended as of the date of this Officer's
Certificate.
(a) 25% of Consolidated Net Income for each
complete Fiscal Year ended after
January 1, 1994 in which there
was income. $______
(b) FAS 106 Minimum Equity Factor $______
(c) $441,000,000 plus Item 1(a) less
Item 1(b). $______
(d) The lesser of (i) $800,000,000 less
the FAS 106 Minimum Equity Factor or
(ii) Item 1(c) is the Minimum
Consolidated Shareholder's Equity
for the Fiscal Year ended as of the
date of this Officer's Certificate. $______
(e) Actual Consolidated Shareholder's Equity
of the Company for Fiscal Year ended as
of the date of this Officer's Certificate
(such amount to be equal to or
greater than the amount shown in
Item 1(d)). $______
2. Section 11.3 - Minimum Consolidated Shareholder's Equity at
the end of Fiscal Quarter ended as of the date of this
Officer's Certificate.
(a) 50% of the Consolidated Net Income for
each complete Fiscal Year ended after
January 1, 1994 in which there was income,
and for the period commencing immediately
following the close of the last complete
Fiscal Year and ending as of the date of
this Officer's Certificate. $______
(b) $537,000,000 plus the amount in Item
2(a). $______
(c) The lesser of $1,000,000,000 and Item 2(b)
is the Minimum Consolidated Shareholder's
Equity for the Fiscal Quarter ended as of
the date of this Officer's Certificate. $______
(d) Actual Consolidated Shareholder's Equity
of the Company for Fiscal [Year] [Quarter]
ended as of the date of this Officer's
Certificate (such amount to be equal to
or greater than the amount shown in
Item 2(c)). $______
3. Section 11.4 - Debt to Total Capitalization
(a) Debt of the Company and Restricted
Subsidiaries as of the date of this
Officer's Certificate:
(i) Indebtedness for Borrowed Money. $______
(ii) Capitalized Lease Obligations. $______
(iii) Without double counting for items
covered in (i) and (ii),
Capitalized Lease Obligations of
Non-Restricted Subsidiaries for
which the Company or a Restricted
Subsidiary is liable directly or
indirectly under a Guaranty. $______
(iv) Subordinated Debt. $______
(v) Items (i) plus (ii) plus
(iii) less Item (iv) equals Debt. $______
(b) Capital Base as of the date of this
Officer's Certificate:
(i) Subordinated Debt. $______
(ii) Consolidated Shareholder's Equity. $______
(iii) FAS 106 Capital Base Factor. $______
(iv) All outstanding advances by the
Company to, and investment of the
Company in, Non-Restricted Sub-
sidiaries. $______
(v) Value of all treasury stock of the
Company carried as an asset. $______
(vi) The aggregate amount of all general
intangibles of the Company and its
Restricted Subsidiaries. $______
(vii) Item 3(b)(i) plus Item 3(b)(ii) plus
Item 3(b)(iii) less Items 3(b)(iv),
3(b)(v) and 3(b)(vi) equals the
Capital Base. $______
(c) Debt-Like Preferred Stock. $______
(d) Total Capitalization as of the date of
this Officer's Certificate - the sum of
Debt (Item 3(a)(v)) plus Capital Base
(Item 3(b)(vii)) plus Debt-Like Preferred
Stock (Item 3(c)) equals Total
Capitalization. $______
(e) Debt to Total Capitalization. Divide
Debt of Company and Restricted Subsidiaries
(Item 3(a)(v)) by Total Capitalization
of the Company and Restricted Subsidiaries
(Item 3(d)), and express result as a
percentage (such percentage is not to
exceed (i) 60% as of last day of any
Fiscal Quarter or (ii) 50% as of the last
day of any Fiscal Year). ______%
4. Ratio of Earnings to Fixed Charges for the Ratio Period
ended as of the date of this Officer's Certificate
(a) Each of the following items to be for
the Company and its Subsidiaries for
the Ratio Period ended as of the date
of this Officer's Certificate:
(i) Net income. $______
(ii) Interest income. $______
(iii) Income taxes. $______
(iv) Interest expense. $______
(v) Depreciation and amortization. $______
(vi) Rental expense. $______
(b) Item 4(a)(i) less Item 4(a)(ii) and
plus Items 4(a)(iii), 4(a)(iv), 4(a)(v)
and 4(a)(vi). $______
over interest income plus all rental
expense for the Company and its Subsidiaries
and capital expenditures (other
than asset additions under capital leases
determined in accordance with GAAP,
(except as set forth in Section 15.3)) of
the Company and its Subsidiaries payable
with respect to the Ratio Period ended
as of the date of this Officer's
Certificate. $______
(d) Ratio of Earnings to Fixed Charges
(ratio of Item 4(b) to Item 4(c)). ___:___
5. Section 11.5 - Purchase, Redemption, Dividends, etc.
(a) The sum of all of the following which have
been paid or made subsequent to January 1,
1994 on or before the date of this
Officer's Certificate (but excluding any
dividends, distributions, purchases,
redemptions and other acquisitions or
retirements of Debt-Like Preferred Stock
of the Company):
(i) dividends or distributions on
any capital stock of the
Company (other than stock
dividends or splits), $______
(ii) increase in outstanding loans and
advances to the Parent since
January 1, 1994, $______
(iii)purchases, redemptions or other
acquisitions of any shares of
capital stock of the Company
by the Company (other than for
Debt-Like Preferred Stock), and $______
(iv) purchases, redemptions or other
acquisitions of any shares of
capital stock of the Company (other
than for Debt-Like Preferred Stock)
by a Subsidiary. $______
(v) Total Restricted Payments. $______
(b) 50% (or minus 100% in the case of any
deficit) of Consolidated Net Income of
the Company and its Subsidiaries for the
period, taken as one accounting period,
from and including January 2, 1994, to
the end of the Company's Fiscal Quarter
ended as of the date of this Officer's
Certificate. $______
(c) Decrease in outstanding loans and
advances to the Parent since January 1,
1994. $______
(d) Any capital contributions received by the
Company after January 1, 1994. $______
(e) The net proceeds to the Company (in cash
or, if the consideration is other then
cash, the fair value thereof as determined
by the Board of Directors of the Company)
of the issue or sale after January 1,
1994 of capital stock, including treasury
stock but excluding Debt-Like Preferred
Stock, of the Company. $______
(f) An amount equal to the net proceeds to the
Company (in cash or, if the consideration
is other than cash, the fair value thereof
as determined by the Board of Directors)
from the issue or sale at any time of any
indebtedness of the Company or a
Subsidiary which, after January 1, 1994,
is converted into shares of capital stock
(but excluding Debt-Like Preferred Stock)
of the Company or the Parent. $______
(g) FAS 106 Restricted Payment Factor $______
(h) $63,000,000 plus the sum of Items 5(b),
5(c), 5(d), 5(e), 5(f) and 5(g). The amount
of this Item 5(h) must be greater than
the amount of Item 5(a)(v). $______
<PAGE>
ANNEX C
TO OFFICER'S CERTIFICATE DATED AS OF , 19
[Description of any Material Litigation or Material
Litigation Development to the extent such disclosure would be
required to be made by the Company if the Company were a
reporting company under the Securities Exchange Act of 1934.]
See the [Annual Report on Form 10-K] [Quarterly Report on
Form 10-Q] of the [Company] [Parent] for the period ended as of
the date of this Officer's Certificate.
<PAGE>
ANNEX D
TO OFFICER'S CERTIFICATE DATED AS OF , 19
Changes in the list of [Restricted Subsidiaries (excluding
Special Restricted Subsidiaries)] [Subsidiaries and Restricted
Subsidiaries] since the Officer's Certificate dated as of the
close of the immediately preceding Fiscal [Quarter*/] [Year**/]:
<PAGE>
EXHIBIT J
FORM OF OPINION OF COUNSEL FOR THE COMPANY
(Section 12.1(a)(vi))
[Letterhead of Counsel to the Company]
September 15, 1994
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Documentary Agent
One First National Plaza
Chicago, Illinois 60670
THE BANK OF NOVA SCOTIA,
individually and as Administrative Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
THE BANK OF NEW YORK,
individually and as Negotiated Loan Agent
One Wall Street
New York, New York 10286
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
individually and as Advisory Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
The Banks listed on Schedule I
attached hereto and parties to the
Credit Agreement referred to below
Gentlemen:
We have acted as special counsel to Montgomery Ward & Co.,
Incorporated, an Illinois corporation (the "Company"), in
connection with the negotiation, execution and delivery by the
Company of (i) that certain Long Term Credit Agreement (the "Long
Term Credit Agreement") dated as of September 15, 1994, among the
Company, the banks named therein and listed on Schedule I
attached hereto and the agents named therein and listed above,
and in connection with the transactions and other documents and
instruments described therein or consummated or executed and
delivered in connection therewith and (ii) that certain Short
Term Credit Agreement (the "Short Term Credit Agreement") dated
as of September 15, 1994, among the Company, the banks named
therein and listed on Schedule I attached hereto and the agents
named therein and listed above, and in connection with the
transactions and other documents and instruments described
therein or executed and delivered in connection therewith. When
terms are capitalized and used herein and are not otherwise
defined herein, such terms are used herein and shall have the
meanings ascribed to such terms in the Long Term Credit
Agreement.
In connection with this opinion, we have examined a
counterpart of the Long Term Credit Agreement executed by the
Company, a counterpart of the Short Term Credit Agreement
executed by the Company and executed copies of the notes (the
"Notes") being delivered by the Company pursuant to both such
agreements. Except as provided below, we have also investigated
such questions of law, have made such factual inquiries and have
examined the original, certified, conformed or photostatic copies
of all such records of the Company and all such documents,
certificates of public officials, certificates of officers and
representatives of the Company and others, and such other
documents, and relied on the same, all as we deem relevant,
necessary or appropriate for the opinions hereinafter expressed.
As to indicated matters, our opinions as expressed below are
based solely upon conclusions as to such matters set forth in the
opinion of G. T. Morgan, Esq., Senior Associate General Counsel
to the Company, a copy of which is attached hereto as Exhibit A
and we have assumed, with your permission, the correctness of the
matters set forth therein, except for paragraph 3 of such
opinion. Our opinion is, except as otherwise specifically
indicated in the preceding sentence, in every respect based upon
and subject to the assumptions, qualifications, limitations and
matters set forth in said opinion (and the exhibits thereto)
attached hereto as Exhibit A, and as otherwise provided herein.
On the basis of all of the foregoing, and subject to the
additional qualifications, assumptions and limitations set forth
below, we are of the opinion that:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Illinois.
2. The execution, delivery and performance by the Company
of the Long Term Credit Agreement, the Short Term Credit
Agreement and the Notes (a) are within the Company's corporate
powers, (b) have been duly authorized by all necessary corporate
and other action, (c) do not require any governmental approval
which has not been previously obtained (and each such
governmental approval that has been previously obtained remains
effective), (d) do not conflict with any provision of law, or of
any judgment, decree or order, or of the Company's charter or
by-laws, and (e) to our knowledge, do not and will not contravene
or conflict with, or cause any Lien to arise under, any provision
of any agreement binding upon the Company, any material
Subsidiary or any of their respective properties.
3. The Long Term Credit Agreement, the Short Term Credit
Agreement and the Notes have been duly executed and delivered by
the Company and are the legal, valid and binding obligations of
the Company enforceable against the Company in accordance with
their respective terms except as such enforcement may be limited
by the application of bankruptcy, moratorium, reorganization or
other laws or legal principles affecting the rights of creditors
generally or by general principles of equity (whether or not a
proceeding is brought in a court of law or equity).
4. The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of
the Investment Company Act of 1940, as amended.
5. Neither the Company nor any material Subsidiary is a
"holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
6. Except as set forth in Schedule II to the Long Term
Credit Agreement, in the annual report on form 10-K of the Parent
for the fiscal year ended January 1, 1994 or in the quarterly
report on form 10-Q of the Parent for the fiscal quarter ended
July 2, 1994, no Material Litigation is pending or threatened
against the Company.
The opinions set forth above are subject to the following
additional qualifications:
(a) We have assumed, with your permission, the genuineness
of all signatures, the authenticity of all documents submitted to
us as originals, the conformity to the originals of all documents
submitted to us as copies and the authenticity of the originals
of all such latter documents. We have also assumed the accuracy
of the factual matters contained in the documents we have
examined, and as related to us by officers and representatives of
the Company.
(b) We have assumed, with your permission, the due
execution and delivery of the Long Term Credit Agreement and the
Short Term Credit Agreement by the Banks and all other documents
and instruments delivered in connection therewith by each of the
parties thereto, other than the Company.
(c) With your permission, we have relied solely on the
aforesaid opinion of G. T. Morgan, Esq., Senior Associate General
Counsel to the Company with respect to matters referred to or set
forth in paragraphs 1, 2 (except as to that part of paragraph
2(d) which deals with "conflict with any provision of law" (with
respect to which we partially relied on said opinion of Mr.
Morgan)) and 6 of this letter. As indicated above, said opinion
is attached hereto as Exhibit A.
(d) We are qualified to practice law in the State of
Illinois and we do not purport to be experts in any law other
than the law of the State of Illinois and the federal law of the
United States. Accordingly, we express no opinion as to the laws
of any states, or as to any matter subject to such laws, other
than the laws of the State of Illinois. We also do not render
any opinion as to whether any state, other than the State of
Illinois, would uphold the choice of law provisions in the Long
Term Credit Agreement and the Short Term Credit Agreement.
(e) Our opinions are limited to the matters expressly set
forth herein and no opinion is to be implied or inferred beyond
the matters expressly so stated.
(f) Myron Lieberman, a member of this firm, is the sole
general partner of Lieberman Investment Limited Partnership, a
partnership in which one or more other members of this firm are
also partners. Lieberman Investment Limited Partnership is a
shareholder of Montgomery Ward Holding Corp., a Delaware
corporation (the "Parent"), which owns all of the issued and
outstanding shares of the Company. Mr. Lieberman individually is
also a shareholder of the Parent and a director of the Company
and the Parent.
This opinion is delivered pursuant to the Long Term Credit
Agreement and the Short Term Credit Agreement and is furnished
only to the Agents and the Banks and their Assignees and
Participants and their respective counsel, and is solely for
their benefit in connection with the above transactions.
Very truly yours,
<PAGE>
SCHEDULE I
To Opinion Dated September 15, 1994
of Counsel to the Company
<PAGE>
EXHIBIT A
To Opinion Dated September 15, 1994
of Counsel to the Company
[MONTGOMERY WARD & CO., INCORPORATED LETTERHEAD]
September 15, 1994
Gentlemen:
As Senior Associate General Counsel to Montgomery Ward &
Co., Incorporated, an Illinois corporation (the "Company"), I
hereby render this opinion to induce and permit you to render
your opinion ("Loan Opinion") to the Banks in connection with the
transactions contemplated by (i) that certain Long Term Credit
Agreement ("Long Term Credit Agreement") dated as of September
15, 1994, among the Company, the banks named therein and listed
on Schedule I attached hereto and the agents named therein and
listed on Schedule II attached hereto, and (ii) that certain
Short Term Credit Agreement ("Short Term Credit Agreement")
dated as of September 15, 1994, among the Company, the banks
named therein and listed on Schedule I hereto and the agents
named therein and listed on Schedule II hereto. In connection
with this opinion, I have examined a counterpart of the Long Term
Credit Agreement executed by the Company, a counterpart of the
Short Term Credit Agreement executed by the Company and executed
copies of each of the notes (the "Notes") being delivered by the
Company pursuant to both such Agreements. Except as provided
below, I have also investigated such questions of law, have made
such factual inquiries and have examined the original, certified,
conformed or photostatic copies of all such records of the
Company and all such documents, certificates of public officials,
certificates of officers and representatives of the Company and
others, and such other documents, all as I deem relevant,
necessary or appropriate for the opinions hereinafter expressed.
When terms are capitalized and used herein and are not otherwise
defined herein, such terms are used herein and shall have the
meaning ascribed to such terms in the Long Term Credit Agreement.
On the basis of all the foregoing, and subject to the
additional qualifications, assumptions and limitations set forth
below, I am of the opinion that:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Illinois.
2. The execution, delivery and performance by the Company
of the Long Term Credit Agreement, the Short Term Credit
Agreement and the Notes (a) are within the Company's corporate
powers, (b) have been duly authorized by all necessary corporate
and other action, (c) do not require any government approval
which has not been previously obtained, (d) do not conflict with
any provision of law, or of any judgment, decree or order, or of
the Company's charter or by-laws, and (e) to my knowledge, do not
and will not contravene or conflict with, or cause any Lien to
arise under, any provision of any agreement binding upon the
Company, any Subsidiary or any of their respective properties.
3. The Long Term Credit Agreement, the Short Term Credit
Agreement and the Notes have been duly executed and delivered by
the Company and the Long Term Credit Agreement and the Short Term
Credit Agreement are, and any Negotiated Note evidencing an
outstanding Negotiated Loan, any Term Note evidencing an
outstanding Term Loan and any Swing Note evidencing an
outstanding Swing Loan made pursuant to the provisions of the
Long Term Credit Agreement or the Short Term Credit Agreement
during the period such Loan remains outstanding will be the
legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their respective terms
except as such enforcement may be limited by the application of
bankruptcy, moratorium, reorganization or other laws or legal
principles affecting the rights of creditors generally or by
general principles of equity (whether or not a proceeding is
brought in a court of law or equity).
4. Except as set forth in Schedule II to the Long Term
Credit Agreement, in the annual report on form 10-K of the Parent
for the fiscal year ended January 1, 1994 or in the quarterly
report on form 10-Q of the Parent for the fiscal quarter ended
July 2, 1994, no Material Litigation is pending or threatened
against the Company.
The opinions set forth above are subject to the following
additional qualifications:
(a) I have assumed, with your permission, the genuineness
of all signatures, the authenticity of all documents submitted to
me as originals, the conformity to the originals of all documents
submitted to me as copies and the authenticity of the originals
of all such latter documents. I have also assumed the accuracy
of the factual matters contained in the documents I have
examined, and as related to me by officers and representatives of
the Company.
(b) I have assumed, with your permission, the due execution
and delivery of the Long Term Credit Agreement and the Short Term
Credit Agreement by the Banks and all other documents and
instruments delivered in connection therewith by each of the
parties thereto, other than the Company.
(c) I am qualified to practice law in the State of Illinois
and I do not purport to be an expert in any law other than the
law of the State of Illinois and the federal law of the United
States. Accordingly, I express no opinion as to the laws of any
states, or as to any matter subject to such laws, other than the
laws of the State of Illinois. I also do not render any opinion
as to whether any state, other than the State of Illinois, would
uphold the choice of law provisions in the Long Term Credit
Agreement and the Short Term Credit Agreement Documents.
(d) I am a shareholder of Montgomery Ward Holding Corp., a
Delaware corporation (the "Parent"), which owns all of the issued
and outstanding shares of the Company, and I am the holder of
options to purchase shares of Class A Common Stock of the Parent.
(e) My opinion is limited to the matters expressly set
forth herein and no opinion is to be implied or inferred beyond
the matters expressly so stated.
You, the Banks and the Agents (and their Assignees and
Participants) and their respective counsel are entitled to rely
on the opinion hereinbefore set forth and you are hereby
authorized to attach this letter of opinion as an exhibit to the
Loan Opinion delivered pursuant to Section 12.1(a)(vi) of the
Long Term Credit Agreement and the Short Term Credit Agreement.
Very truly yours,
G. T. Morgan, Esq.,
Senior Associate General Counsel
Montgomery Ward & Co., Incorporated
<PAGE>
SCHEDULE I
To Opinion Dated September 15, 1994
of G. T. Morgan, Esq.
<PAGE>
SCHEDULE II
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Documentary Agent
One First National Plaza
Chicago, Illinois 60670
THE BANK OF NOVA SCOTIA,
individually and as Administrative Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
THE BANK OF NEW YORK,
individually and as Negotiated Loan Agent
One Wall Street
New York, New York 10286
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
individually and as Advisory Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
<PAGE>
EXHIBIT K
FORM OF CERTIFICATE AS TO SATISFACTION OF CONDITIONS
(Section 12.1(a)(vii))
To: The Banks and the Agents
parties to the Credit Agreement
referred to below.
This Certificate is furnished pursuant to Section
12.1(a)(vii) of the Long Term Credit Agreement, dated as of
September 15, 1994 (the "Credit Agreement"), among Montgomery
Ward & Co., Incorporated, an Illinois corporation (the
"Company"), the banks named therein (the "Banks") and the agents
named therein (the "Agents"). Capitalized terms used herein but
not otherwise defined herein shall have the same meanings as
those assigned to them in the Credit Agreement.
I hereby certify to the Banks and the Agents, on behalf of
the Company that, I am the duly qualified and acting __________
of the Company, and I am authorized to execute this Certificate
on behalf of the Company and I further certify as follows:
1. As of the date hereof no Event of Default or Unmatured
Event of Default has occurred and is continuing or shall result
from the making of any Loan on the date hereof.
2. The Company's representations and warranties contained
in Sections 10.1 through 10.18 are true and correct as of the
date hereof.
3. All of the conditions precedent to the Credit Agreement
becoming effective, which conditions are set forth in Section
12.1 of the Credit Agreement, have been satisfied as of the date
of this Certificate.
IN WITNESS WHEREOF, I have hereunto set my hand this 15th
day of September, 1994.
Name:
Title:
of Montgomery Ward & Co.,
Incorporated
<PAGE>
EXHIBIT L
FORM OF ASSIGNMENT AND ACCEPTANCE
(Section 15.4(b))
Reference is made to the Long Term Credit Agreement,
dated as of September 15, 1994 (herein, as heretofore amended,
modified or supplemented, called the "Credit Agreement"), among
Montgomery Ward & Co., Incorporated, an Illinois corporation (the
"Company"), and the Banks and Agents parties thereto. Terms used
but not otherwise defined herein are used herein as defined in
the Credit Agreement.
(the "Assignor")
and (the "Assignee") hereby agree as
follows:
1. The Assignee hereby purchases and assumes from the
Assignor, and the Assignor hereby sells and assigns and delegates
to the Assignee, without recourse and without representation or
warranty except as specifically set forth in paragraph 2 below,
a ______%1/ interest in and to all of the Assignor's rights,
benefits and obligations under the Credit Agreement, including,
without limitation, rights of setoff pursuant to Section 8.3 of
the Credit Agreement, and obligations to share pursuant to
Section 8.2 of the Credit Agreement, which (after giving effect
to any other assignments thereof made prior to the date hereof,
whether or not such assignments have become effective, but
without giving effect to any other assignments thereof also made
on the date hereof) is $__________, and also including, without
limitation, the same _____% 1/interest in:
(a) the aggregate outstanding principal amount of the
Revolving Loans, Swing Loans [and Negotiated Loans]
owing to the Assignor, which (after giving effect to
any other assignments thereof made prior to the date
hereof, whether or not such assignments have become
effective, but without giving effect to any other
assignments thereof also made on the date hereof) is
$____________; and
(b) the Revolving Note, Swing Note [and Negotiated
Note] held by the Assignor.
2. (a) The Assignor represents and warrants that the
Assignor has received the Company's consent to this
Assignment and Acceptance (a true and correct copy of
the letter from the Company evidencing such consent
being attached hereto as Annex A).
(b) The Assignor represents and warrants that it is the
legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free
and clear of any adverse claim.
(c) The Assignee acknowledges and agrees that neither the
Assignor nor any Agent nor any other Bank makes any
representation or warranty or assumes any responsibility
with respect to any statements, warranties or
representations made in or in connection with the Credit
Agreement or any other instrument or document furnished
pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the
Credit Agreement or any other instrument or document
furnished pursuant thereto.
(d) The Assignee acknowledges and agrees that neither the
Assignor nor any Agent nor any other Bank makes any
representation or warranty or assumes any responsibility
with respect to the financial condition or
creditworthiness of the Company or the performance or
observance by the Company of any of its obligations under
the Credit Agreement or any other instrument or document
furnished pursuant thereto. The Assignee acknowledges
and agrees that (i) the Assignee has made and will
continue to make such inquiries and has taken and will
continue to take such care on its own behalf as would
have been the case had it made Loans directly to the
Company without the intervention of the Assignor, any
Agent or any other Person, and (ii) the Assignee has made
and will continue to make its own credit analysis and
decisions relating to the Credit Agreement independently
and without reliance upon the Assignor, any Agent or any
other Person, and based on such documents and information
as it has deemed appropriate.
(e) The Assignor represents and warrants that on the
date hereof it is assigning an equal percentage amount
of its commitment to make revolving loans and swing
loans under the Short Term Credit Agreement as well as
the revolving note and swing note evidencing such loans
respectively.
(f) The Assignor attaches the Revolving Note and Swing
Note referred to in paragraph 1(b) above and requests
that (i) the Applicable Agent exchange such Notes for
new Notes as follows: a Revolving Note dated
______________, 19___ in the principal amount of
$___________ payable to the order of the Assignee, a
Swing Note dated __________, 19___ in the principal
amount of $__________ payable to the order of the
Assignee [, a Revolving Note dated __________, 19__ in
the principal amount of $__________ payable to the
order of the Assignor and a Swing Note dated
__________, 19__ in the principal amount of $__________
payable to the order of the Assignor] and (ii) a
Negotiated Note dated __________, 19__ in the principal
amount of $__________ payable to the order of the
Assignee].
(g) No Negotiated Loans are currently owing to the
Assignor [except in the outstanding principal amount of
$__________].
[(h) The Assignor and the Assignee agree and
acknowledge that the assignment made herein shall be
supplemented by an assignment supplement of even date
herewith with regard to the payment of interest and
certain fees between the Assignor and the Assignee
which shall include the amount of commitment fees on
Loans currently outstanding.]
3. The effective date for this Assignment and
Acceptance shall be __________________, 19__ (the "Assignment
Date").2/ Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, it will be delivered
to the Applicable Agent for acceptance by the Applicable Agent.
At such time, if the Assignee is a Non-United States Person, it
shall also deliver to the Applicable Agent a written
representation and warranty substantially similar to that
contained in Section 8.4(b) of the Credit Agreement. Following
such acceptance by the Applicable Agent of this Assignment and
Acceptance, a photostatic copy hereof shall be delivered to the
Company, together with the representation and warranty described
above. The Applicable Agent shall deliver the new Notes executed
by the Company to the payees thereof and shall mark the Notes
referred to in paragraph 1(b) above as "replaced" and shall
deliver the same to the Company.
4. Upon such acceptance by the Applicable Agent, as
of the Assignment Date,
(a) the Assignee shall, in addition to any rights,
benefits and obligations under the Credit Agreement
held by it immediately prior to the Assignment Date,
have the rights, benefits and obligations under the
Credit Agreement that have been assigned to it pursuant
to this Assignment and Acceptance, and
(b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and
benefits and be released from its obligations under the
Credit Agreement, except that the Assignor shall remain
entitled to the rights and benefits arising under
Sections 6, 8.4, 9 and 15.6 of the Credit Agreement,
and shall remain liable with respect to any of its
obligations arising under Sections 6.9, 8.4(c), 14.2
and 15.5 of the Credit Agreement, with respect to any
matters arising prior to the Assignment Date.
5. Upon such acceptance by the Applicable Agent,
from and after the Assignment Date, the Applicable Agent shall
make all payments under the Credit Agreement and the Revolving
Note and Swing Note in respect of the interest assigned hereby
(including, without limitation, all payments of principal,
interest and commitment and other fees with respect thereto) to
the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments under the Credit Agreement
and the Revolving Note, Swing Note [and Negotiated Note] for
periods prior to (and, if agreed to, in the case of commitment
fees or interest, after) the Assignment Date directly between
themselves.
6. After acceptance by the Applicable Agent, the
Assignor and the Assignee agree to give written notice of this
Assignment and Acceptance to each Bank and each Agent, which
written notice shall include the addresses and related
information with respect to the Assignee.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
Illinois without regard to conflict of laws principles.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
Accepted this __ day Copies of all notices, etc,
of ____________, 19__. should be sent to:
[NAME OF APPLICABLE AGENT],
as Applicable Agent
Attention:
By: Telephone:
Title: Telecopy:
Telex:
Base Rate Loan Funding Office:
Eurodollar Loan Funding
Office:
<PAGE>
1/ Specify percentage in no more than 4 decimal points.
2/ See Section 15.4(b). Such date shall be at least five (5)
Business Days after the execution of this Assignment and
Acceptance.
<PAGE>
ANNEX A
TO ASSIGNMENT AND ACCEPTANCE
[Attach a copy of the letter from the Company
consenting to this Assignment and Acceptance]
<PAGE>
EXHIBIT M
FORM OF REPLACEMENT AGREEMENT
(Section 15.4(e))
This Agreement, dated as of ___________, 19__,
constitutes a Replacement Agreement pursuant to Section 15.4(e)
of the Long Term Credit Agreement dated September 15, 1994 (as
amended, modified or supplemented, the "Credit Agreement"), among
Montgomery Ward & Co., Incorporated (the "Company"), the banks
named therein and the agents named therein. Terms not otherwise
expressly defined herein shall have the meanings set forth in the
Credit Agreement.
1. The Company hereby (a) represents and warrants that
no Event of Default or Unmatured Event of Default has occurred
and is continuing, and (b) concurrently herewith agrees to pay
all Liabilities of the Company now outstanding to
___________________ (the "Terminated Bank") (including without
limitation all such amounts due the Terminated Bank under
Sections 6, 8.4, 9, 15.5 and 15.6 of the Credit Agreement), which
Liabilities on the date hereof are $ .
2. All obligations of the Terminated Bank (excluding
any obligations arising under Sections 6.9, 8.4(c), 14.2 and 15.5
of the Credit Agreement with respect to any matters arising prior
to the effective date of such termination) are hereby terminated
and the Terminated Bank is hereby released therefrom and the
Terminated Bank hereby ceases to be a party to the Credit
Agreement and a Bank thereunder.
3. _________________ (the "Replacement Bank") hereby
becomes a party to the Credit Agreement and a Bank thereunder and
agrees to be bound thereby with the same effect as if the
Replacement Bank were the Terminated Bank immediately prior to
such substitution. The Commitment of the Replacement Bank shall
be $ and the Termination Date for such Bank shall be
________________, 19__.
This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Illinois.
This Agreement may be executed in any number of counterparts
and by the different parties on separate counterparts and each
such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
Agreement.
MONTGOMERY WARD & CO.,
INCORPORATED
By:
Title:
[REPLACEMENT BANK]
By:
Title:
THE BANK OF NOVA SCOTIA, in
its capacity as Administrative
Agent
By:
Title:
SHORT TERM
CREDIT AGREEMENT
dated as of September 15, 1994
among
MONTGOMERY WARD & CO., INCORPORATED,
VARIOUS BANKS,
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentary Agent,
THE BANK OF NOVA SCOTIA,
as Administrative Agent,
THE BANK OF NEW YORK,
as Negotiated Loan Agent
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Advisory Agent
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1 CERTAIN DEFINITIONS.. . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . 1
1.2 Groups and Types of Loans. . . . . . . . . . . . . . 20
SECTION 2 REVOLVING LOANS . . . . . . . . . . . . . . . . . . 20
2.1 Commitment to Make Revolving Loans . . . . . . . . . 20
2.2 Revolving Loan Limits. . . . . . . . . . . . . . . . 20
2.3 Borrowing Procedure. . . . . . . . . . . . . . . . . 21
2.4 Repayment. . . . . . . . . . . . . . . . . . . . . . 21
2.5 Revolving Notes. . . . . . . . . . . . . . . . . . . 21
2.6 Voluntary Termination or Reduction of the
Commitments. . . . . . . . . . . . . . . . . . . . . 21
2.7 Extension of the Termination Date. . . . . . . . . . 22
SECTION 3 SWING LOANS.. . . . . . . . . . . . . . . . . . . . 24
3.1 Commitment to Make Swing Loans.. . . . . . . . . . . 24
3.2 Swing Loan Limits. . . . . . . . . . . . . . . . . . 24
3.3 Borrowing Procedure. . . . . . . . . . . . . . . . . 24
3.4 Interest and Repayment.. . . . . . . . . . . . . . . 25
3.5 Swing Notes. . . . . . . . . . . . . . . . . . . . . 25
3.6 Participation of Banks . . . . . . . . . . . . . . . 25
SECTION 4 NEGOTIATED LOANS. . . . . . . . . . . . . . . . . . 26
4.1 Negotiated Loan Option . . . . . . . . . . . . . . . 26
4.2 Negotiated Loan Limits . . . . . . . . . . . . . . . 26
4.3 Procedure for Negotiated Loans . . . . . . . . . . . 26
4.4 Interest and Repayment . . . . . . . . . . . . . . . 28
4.5 Negotiated Loan Notes. . . . . . . . . . . . . . . . 28
SECTION 5 TERMINATION OF COMMITMENTS UPON A CHANGE OF
CONTROL. . . . . . . . . . . . . . . 28
SECTION 6 INTEREST AND FEES . . . . . . . . . . . . . . . . . 29
6.1 Interest Rates . . . . . . . . . . . . . . . . . . . 29
6.2 Eurodollar Margin Increment. . . . . . . . . . . . . 29
6.3 Interest Payment Dates . . . . . . . . . . . . . . . 29
6.4 Setting and Notice of Loan Rates . . . . . . . . . . 30
6.5 Commitment Fee . . . . . . . . . . . . . . . . . . . 31
6.6 Displaced Commitment Fee . . . . . . . . . . . . . . 31
6.7 Agents' Fees . . . . . . . . . . . . . . . . . . . . 31
6.8 Computation of Interest and Fees . . . . . . . . . . 31
6.9 Determination of Margin and Fee Increase . . . . . . 32
SECTION 7 REVOLVING LOAN PROCEDURES;
CONVERSIONS AND CONTINUATIONS . . . . . . 33
7.1 Procedure for Revolving Loans. . . . . . . . . . . . 33
7.2 Conversion and Continuation Procedures . . . . . . . 34
SECTION 8 MAKING AND SHARING OF PAYMENTS AND
PREPAYMENTS; SETOFF; TAXES; RECORDKEEPING. 36
8.1 Making of Payments . . . . . . . . . . . . . . . . . 36
8.2 Sharing of Payments. . . . . . . . . . . . . . . . . 37
8.3 Setoff . . . . . . . . . . . . . . . . . . . . . . . 38
8.4 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 39
8.5 Recordkeeping. . . . . . . . . . . . . . . . . . . . 41
SECTION 9 CHANGE OF CIRCUMSTANCES.. . . . . . . . . . . . . . 43
9.1 Reserve and Capital Adequacy Costs . . . . . . . . . 43
9.2 Increased Costs. . . . . . . . . . . . . . . . . . . 44
9.3 Basis for Determining Interest Rate Inadequate or
Unfair . . . . . . . . . . . . . . . . . . . . . . . 46
9.4 Changes in Law Rendering Certain Loans Unlawful. . . 46
9.5 Funding Losses . . . . . . . . . . . . . . . . . . . 47
9.6 Discretion of Banks as to Manner of Funding. . . . . 47
9.7 Conclusiveness of Statements; Survival of
Provisions . . . . . . . . . . . . . . . . . . . . . 48
9.8 Negotiated Loans . . . . . . . . . . . . . . . . . . 48
SECTION 10 REPRESENTATIONS. . . . . . . . . . . . . . . . . . 48
10.1 Organization, etc . . . . . . . . . . . . . . . . . 48
10.2 Authorization; No Conflict. . . . . . . . . . . . . 48
10.3 Validity and Binding Nature . . . . . . . . . . . . 49
10.4 Financial Statements. . . . . . . . . . . . . . . . 49
10.5 Litigation and Contingent Liabilities . . . . . . . 49
10.6 Title to Property . . . . . . . . . . . . . . . . . 50
10.7 Liens . . . . . . . . . . . . . . . . . . . . . . . 50
10.8 Subsidiaries. . . . . . . . . . . . . . . . . . . . 50
10.9 Plans and Welfare Plans . . . . . . . . . . . . . . 50
10.10 Investment Company Act . . . . . . . . . . . . . . 50
10.11 Public Utility Holding Company Act . . . . . . . . 50
10.12 Regulations G, U and X . . . . . . . . . . . . . . 51
10.13 Labor Controversies. . . . . . . . . . . . . . . . 51
10.14 Tax Status . . . . . . . . . . . . . . . . . . . . 51
10.15 No Default . . . . . . . . . . . . . . . . . . . . 52
10.16 Compliance with Applicable Laws. . . . . . . . . . 52
10.17 Licenses, etc. . . . . . . . . . . . . . . . . . . 52
10.18 Purpose. . . . . . . . . . . . . . . . . . . . . . 52
SECTION 11 COVENANTS. . . . . . . . . . . . . . . . . . . . . 52
11.1 Reports, Certificates and Other Information . . . . 53
11.2 Liens . . . . . . . . . . . . . . . . . . . . . . . 55
11.3 Minimum Consolidated Shareholder's Equity . . . . . 58
11.4 Ratio of Debt to Total Capitalization . . . . . . . 59
11.5 Purchase or Redemption of the Company's
Securities; Dividend Restrictions; Payments to the
Parent . . . . . . . . . . . . . . . . . . . . . . . 59
11.6 Mergers, Consolidations, Sales. . . . . . . . . . . 60
11.7 Compliance with Applicable Laws . . . . . . . . . . 62
11.8 ERISA . . . . . . . . . . . . . . . . . . . . . . . 63
11.9 Corporate Existence and Franchises. . . . . . . . . 63
11.10 Maintenance of Tangible Property . . . . . . . . . 63
11.11 Maintenance of Intangible Property . . . . . . . . 63
11.12 Books, Records and Inspections . . . . . . . . . . 64
11.13 Insurance. . . . . . . . . . . . . . . . . . . . . 64
11.14 Payment of Taxes . . . . . . . . . . . . . . . . . 64
11.15 Other Agreements . . . . . . . . . . . . . . . . . 64
11.16 Regulation U . . . . . . . . . . . . . . . . . . . 64
11.17 Subordinated Debt. . . . . . . . . . . . . . . . . 64
11.18 Debt-Like Preferred Stock. . . . . . . . . . . . . 65
11.19 Further Assurances . . . . . . . . . . . . . . . . 65
SECTION 12 CONDITIONS.. . . . . . . . . . . . . . . . . . . . 65
12.1 Effectiveness of Agreement. . . . . . . . . . . . . 65
12.2 Conditions to Loans . . . . . . . . . . . . . . . . 68
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT . . . . . . . . 68
13.1 Events of Default . . . . . . . . . . . . . . . . . 68
13.2 Effect of Event of Default. . . . . . . . . . . . . 72
SECTION 14 THE AGENTS . . . . . . . . . . . . . . . . . . . . 73
14.1 Authorization . . . . . . . . . . . . . . . . . . . 73
14.2 Indemnification . . . . . . . . . . . . . . . . . . 73
14.3 Action on Instructions of the Required Banks. . . . 73
14.4 Payments. . . . . . . . . . . . . . . . . . . . . . 74
14.5 Exculpation . . . . . . . . . . . . . . . . . . . . 75
14.6 Credit Investigation. . . . . . . . . . . . . . . . 76
14.7 Agents and Affiliates . . . . . . . . . . . . . . . 76
14.8 Resignation and Removal . . . . . . . . . . . . . . 76
14.9 Advisory Agent. . . . . . . . . . . . . . . . . . . 77
SECTION 15 GENERAL. . . . . . . . . . . . . . . . . . . . . . 77
15.1 Waiver; Amendments. . . . . . . . . . . . . . . . . 77
15.2 Notices . . . . . . . . . . . . . . . . . . . . . . 78
15.3 Computations. . . . . . . . . . . . . . . . . . . . 79
15.4 Participations; Assignments; Replacement of
Banks. . . . . . . . . . . . . . . . . . . . . . . . 80
15.5 Costs, Expenses and Taxes . . . . . . . . . . . . . 85
15.6 Indemnification . . . . . . . . . . . . . . . . . . 86
15.7 Regulation U. . . . . . . . . . . . . . . . . . . . 87
15.8 Captions. . . . . . . . . . . . . . . . . . . . . . 87
15.9 Governing Law; Severability . . . . . . . . . . . . 87
15.10 Waiver of Jury Trial . . . . . . . . . . . . . . . 87
15.11 Counterparts; Effectiveness. . . . . . . . . . . . 88
15.12 Supersession . . . . . . . . . . . . . . . . . . . 88
15.13 Successors and Assigns . . . . . . . . . . . . . . 88
<PAGE>
SCHEDULES and EXHIBITS
SCHEDULES
SCHEDULE I Banks, Commitments and Termination Dates
(Sections 1.1, 2.7 and 15.4)
SCHEDULE II Litigation (Section 10.5)
SCHEDULE III Liens (Section 10.7)
SCHEDULE IV Subsidiaries and Restricted Subsidiaries
(Section 10.8)
SCHEDULE V Post-Retirement Welfare Plan Benefits
(Section 10.9)
SCHEDULE VI Tax Sharing Arrangements (Section 11.5)
SCHEDULE VII Management Investors (Section 1.1)
SCHEDULE VIII Finder's List (Section 1.1)
<PAGE>
EXHIBITS FORM OF
EXHIBIT A Revolving Note (Section 2.5)
EXHIBIT B Extension Request (Section 2.7)
EXHIBIT C Extension Reply (Section 2.7)
EXHIBIT D Swing Note (Section 3.5)
EXHIBIT E Negotiated Note (Section 4.5)
EXHIBIT F Revolving Loan Request (Section 7.1)
EXHIBIT G Swing Loan Request (Section 3.3)
EXHIBIT H Negotiated Loan Confirmation (Section 4.3)
EXHIBIT I Officer's Certificate (Section 11.1(c))
EXHIBIT J Opinion of Counsel for the Company (Section
12.1)
EXHIBIT K Certificate as to Satisfaction of Conditions
(Section 12.1)
EXHIBIT L Assignment and Acceptance (Section 15.4(b))
EXHIBIT M Replacement Agreement (Section 15.4(e))
<PAGE>
SHORT TERM CREDIT AGREEMENT
THIS SHORT TERM CREDIT AGREEMENT (this "Agreement"),
dated as of September 15, 1994, is among MONTGOMERY WARD & CO.,
INCORPORATED, an Illinois corporation (herein, together with its
successors and permitted assigns, called the "Company"), the
banks listed on the signature pages hereof (herein, together with
their respective successors and assigns, collectively called the
"Banks" and individually called a "Bank"), THE FIRST NATIONAL
BANK OF CHICAGO, as documentary agent for the Banks (herein, in
such capacity, together with its successors and assigns in such
capacity, called the "Documentary Agent"), THE BANK OF NOVA
SCOTIA, as administrative agent for the Banks (herein, in such
capacity, together with its successors and assigns in such
capacity, called the "Administrative Agent"), THE BANK OF NEW
YORK, as negotiated loan agent for the Banks (herein, in such
capacity, together with its successors and assigns in such
capacity, called the "Negotiated Loan Agent"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as advisory agent
for the Banks (herein, in such capacity, together with its
successors and assigns in such capacity, called the "Advisory
Agent") (the Documentary Agent, the Administrative Agent, the
Negotiated Loan Agent and the Advisory Agent are herein
collectively called the "Agents" and individually called an
"Agent").
WHEREAS, the Company wishes to be able to borrow funds
from the Banks from time to time on a revolving basis; and
WHEREAS, subject to the terms and conditions set forth
herein, the Banks are willing to make loans to the Company;
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein contained, the parties hereto agree
as follows:
SECTION 1 CERTAIN DEFINITIONS.
1.1 Definitions. When used herein the following terms
have the following respective meanings (it being understood that
a finder's list is attached as Schedule VIII):
"Adjusted Commitment" - see Section 8.2(a).
"Administrative Agent" - see Preamble.
"Advisory Agent" - see Preamble.
"Affiliate" means with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person. A
Person shall be deemed to control another Person if such first
Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such other
Person, whether through ownership of voting securities, by
contract or otherwise.
"Agent(s)" - see Preamble.
"Agent Parties" - see Section 14.2.
"Aggregate Commitment" means $297,000,000 or such
lesser amount as the Company may specify from time to time
pursuant to Section 2.6 or as may be determined pursuant to
Section 2.7.
"Agreement" - see Preamble.
"Applicable Agent" means (i) with respect to matters
involving the Loans (other than the Negotiated Loans), the
Administrative Agent, and (ii) with respect to matters involving
the Negotiated Loans, the Negotiated Loan Agent.
"Assignee(s)" - see Section 15.4(b).
"Assignment" - see Section 15.4(b).
"Authorized Officer" means the President, the Chief
Executive Officer, the Chief Financial Officer, the Treasurer or
any Assistant Treasurer of the Company.
"Bank(s)" - see Preamble.
"Bank Parties" - see Section 15.6.
"Base Rate" means at any time and from time to time the
higher of (i) the rate per annum then most recently publicly
announced or established by the Bank which is acting as the
Administrative Agent as its "reference rate" or "prime rate" (or
such Bank's equivalent thereof) at its Funding Office for Base
Rate Loans, or (ii) the Federal Funds Rate plus 1/2 of 1% per
annum.
"Base Rate Loan" means any Loan (other than a
Negotiated Loan) which bears interest by reference to the Base
Rate.
"Business Day" means (i) any day of the year other than
a Saturday, a Sunday or other day on which banks in Chicago,
Atlanta or New York City are authorized or required by law to
close, and (ii) if the applicable Business Day relates to the
determination of a Eurodollar Rate or to the funding or payment
of a Eurodollar Loan, a day on which dealings are carried on in
the London interbank eurodollar market.
"Capital Base" means at any time the sum of
Subordinated Debt plus Consolidated Shareholder's Equity of the
Company plus the FAS 106 Capital Base Factor, each as at the end
of the Fiscal Year or Fiscal Quarter, as the case may be, ended
on the date as of which "Capital Base" is being determined, less
each of (i) the aggregate amount of all outstanding advances by
the Company to, and investments of the Company in, Non-Restricted
Subsidiaries, (ii) the aggregate value of all treasury stock
carried as an asset by the Company or any Subsidiary the equity
of which is included in the Company's Consolidated Shareholder's
Equity, and (iii) the aggregate amount of all general intangibles
(including, without limitation, goodwill, franchises, licenses,
patents, trademarks, trade names, copyrights, service marks,
brand names and corporate organization expense) of the Company
and its Restricted Subsidiaries; provided, however, that the
following shall not be included as a general intangible of the
Company and its Restricted Subsidiaries for purposes of this
definition: (a) assets under capital leases, (b) prepaid
expenses (including, without limitation, prepaid pension costs
and prepaid royalties) and other costs or expenditures which
under GAAP are capitalized and amortized over the periods to
which such costs or expenditures relate (including, without
limitation, unamortized deferred marketing acquisition costs,
unamortized customer service contract costs and unamortized
system development costs), (c) as of the date of determination,
the unamortized balance of the value at June 23, 1988 of
insurance licenses of the Company's insurance Restricted
Subsidiaries, (d) as of the date of determination, the
unamortized balance of the value at June 23, 1988 of marketing
rights of the Company and its Restricted Subsidiaries, and (e)
all goodwill arising out of the acquisition by the Company of all
the stock of LMR Acquisition Corporation and its wholly-owned
subsidiary, Lechmere, Inc. (including any goodwill on the books
of LMR Acquisition Corporation and Lechmere, Inc. at the time of
such acquisition by the Company) pursuant to the Agreement and
Plan of Merger dated March 17, 1994 by and among the Company, MW
Merger Corp., LMR Acquisition Corporation, Lechmere, Inc. and the
stockholders of LMR Acquisition Corporation who became parties
thereto, as heretofore and hereafter amended, all as determined
(except as set forth in Section 15.3) in accordance with GAAP.
"Capitalized Lease Obligations" means with respect to
any Person any amounts payable by such Person with respect to any
lease of any tangible or intangible property (whether real,
personal or mixed), however denoted, which is required by GAAP to
be reflected as a liability on such Person's balance sheet.
"Change" - see Section 9.1(b).
"Change of Control" means (a) the sale or other
disposition, at any time or times after the Effective Date, to
any Person other than a Qualified Purchaser, of an aggregate of
50% or more of the Outstanding Original Shares or (b) no
Outstanding Original Shares remain outstanding. Anything to the
contrary notwithstanding, at any time of determination no Change
of Control shall be deemed to have occurred because, or as a
result, of any events, facts and/or circumstances if theretofore
either (i) shares of voting common stock of the Parent have been
sold to the public pursuant to a registration statement filed
with the SEC, which registration statement became effective and
the gross proceeds of such offering were at least $100,000,000 or
(ii) the Consolidated Shareholder's Equity of the Company was
equal to or greater than $710,000,000 either (x) at the end of
the then most recently ended Fiscal Quarter or (y) at the end of
not less than any eight consecutive Fiscal Quarters prior
thereto.
"Class A Common Stock" means the issued and outstanding
shares from time to time of Class A Common Stock of the Parent or
the shares of stock into which such shares shall have been
converted or for which such shares were exchanged in connection
with any merger, consolidation or sale of substantially all the
assets of the Company or the Parent.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commitment" means, for each Bank, such Bank's
commitment to make Revolving Loans on the terms and subject to
the conditions of this Agreement, the maximum amount of such
commitment being the amount opposite such Bank's name on
Schedule I as the same may be revised pursuant to Section 2.6 or
2.7; and "Commitments" means, collectively, the commitments of
all of the Banks to make Revolving Loans on the terms and subject
to the conditions of this Agreement.
"Company" - see Preamble.
"Company Register" - see Section 8.5(a).
"Conditional Sale Obligations" means with respect to
any Person any amounts payable by such Person which are required
by GAAP to be reflected as liabilities on such Person's balance
sheet with respect to agreements for the purchase of real
property or other tangible fixed assets on extended deferred
payment terms covering a period of one year or more and under
which a security interest (other than a statutory vendor's lien)
is specifically retained by the seller until the deferred
purchase price is paid in full, but excluding any agreements
under which the asset being acquired is classified as an asset
under a capital lease rather than as an asset which is owned in
accordance with GAAP.
"Consolidated Net Income" means the aggregate of the
net income of the Company and its Subsidiaries, determined
(except as otherwise provided in Section 15.3) on a consolidated
basis in accordance with GAAP.
"Consolidated Shareholder's Equity" has (except as
otherwise provided in Section 15.3) the meaning assigned to such
phrase by GAAP.
"Continue," "Continuation" and "Continued" refer to
continuations of Loans pursuant to Section 7.2.
"Conversion Notice" - see Section 7.2(a).
"Convert", "Conversion" and "Converted" refer to
conversions of Loans pursuant to Section 7.2.
"Corporate Transaction" - see Section 11.6.
"Debt" means as to any Person at any time (i) all of
such Person's Indebtedness for Borrowed Money, plus (ii) all of
such Person's Capitalized Lease Obligations, plus (iii) if such
Person is the Company or a Restricted Subsidiary, without double
counting, the Capitalized Lease Obligations of any Non-Restricted
Subsidiary reflected on the balance sheet of such Non-Restricted
Subsidiary for which the Company or such Restricted Subsidiary is
liable directly or indirectly under a Guaranty, less (iv) all
Subordinated Debt.
"Debt-Like Preferred Stock" means any class of stock of
the Company which by its terms (i) has any of the following
characteristics: (x) it is redeemable at a fixed or determinable
date or dates, whether by operation of a sinking fund or
otherwise, (y) it is redeemable at the option of the holder or
(z) it has conditions for redemption which are not solely within
the control of the issuer, such as stock which must be redeemed
out of future earnings, and (ii) is validly and effectively made
subordinate and junior in right of payment to the Liabilities in
the event of the occurrence and continuance of any Event of
Default.
"Displaced Loans" - see Section 6.6.
"Documentary Agent" - see Preamble.
"Dollar(s)" and the sign "$" mean lawful money of the
United States of America.
"Effective Date" - see Section 12.1.
"Equalization Amount" - see Section 8.4(c).
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and any successor statute of similar
import, together with the regulations thereunder and under the
Code, in each case as in effect from time to time. References to
sections of ERISA shall be deemed also to refer to any successors
to such sections.
"ERISA Affiliate" means any corporation, trade or
business that is, along with the Company, a member of a
controlled group of corporations or a controlled group of trades
or businesses, as described in sections 414(b) and 414(c),
respectively, of the Code or section 4001 of ERISA.
"Eurocurrency Reserve Percentage" means, with respect
to any day, a percentage (expressed as a decimal) equal to the
percentage 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 marginal reserve requirement) applicable to
"Eurocurrency liabilities" pursuant to Regulation D or any other
then applicable regulation of said Board of Governors which
prescribes reserve requirements applicable to "Eurocurrency
liabilities" as presently defined in Regulation D.
"Eurodollar Loan" means any Loan (other than a
Negotiated Loan) which bears interest at a rate determined by
reference to the Eurodollar Rate.
"Eurodollar Margin Increment" - see Section 6.2.
"Eurodollar Rate" means, with respect to any Interest
Period, and subject to Section 6.4(b), the rate per annum equal
to the arithmetic mean (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the respective rates per annum notified to
the Administrative Agent by the Reference Banks (or any thereof)
prior to 9:30 a.m., Chicago time, on the second Business Day
prior to the commencement of such Interest Period as the rate at
which Dollar deposits are offered by the principal London office
of each such Reference Bank to prime banks in the London
interbank eurodollar market as at or about 11:00 a.m., London
time, for delivery for same day value on the first day of such
Interest Period, for the number of days comprised therein and in
an amount approximately equal to the amount of such Reference
Bank's Eurodollar Loan for such Interest Period.
"Eurodollar Rate (Reserve Adjusted)" means, with
respect to any Interest Period, a rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined
pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage
"Event of Default" means any of the events described in
Section 13.1.
"Existing Credit Agreements" means collectively (i) the
Amended and Restated Credit Agreement, dated September 22, 1992,
as amended, among the Company, various lenders from time to time
party thereto and certain agents listed on the signature pages
thereof, (ii) the Short Term Credit Agreement, dated
September 22, 1992, as amended, among the Company, various
lenders from time to time party thereto and certain agents listed
on the signature pages thereof, and (iii) the Term Loan
Agreement, dated November 24, 1993, among the Company, various
lenders from time to time party thereto and certain agents listed
on the signature pages thereof.
"Existing Termination Date" - see Section 2.7.
"Extension Banks" - see Section 2.7.
"Extension Reply" - see Section 2.7.
"Extension Request" - see Section 2.7.
"FAS 106 Capital Base Factor" means, as at the date of
determination, the dollar amount set forth below opposite the
Fiscal Year in which such date occurs:
Fiscal Year FAS 106 Capital Base Factor
1994 75,000,000
1995 60,000,000
1996 45,000,000
1997 30,000,000
1998 15,000,000
1999 and each 0
Fiscal Year thereafter
"FAS 106 Minimum Equity Factor" means, as at the date
of determination, the dollar amount set forth below opposite the
Fiscal Year in which such date occurs:
Fiscal Year FAS 106 Minimum Equity Factors
1994 67,500,000
1995 60,000,000
1996 45,000,000
1997 30,000,000
1998 15,000,000
1999 and each 0
Fiscal Year thereafter
"FAS 106 Restricted Payment Factor" means, as at the
date of determination, the dollar amount set forth below opposite
the Fiscal Year in which such date occurs:
Fiscal Year FAS 106 Restricted Payment Factors
1994 45,000,000
1995 45,000,000
1996 45,000,000
1997 30,000,000
1998 15,000,000
1999 and each 0
Fiscal Year thereafter
"Federal Funds Rate" means, for any day, the rate set
forth in the weekly statistical release designated as H.15(519),
or any successor publication, published by the Board of Governors
of the Federal Reserve System (including any such successor,
"H.15(519)") for that day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet
published in H.15(519), the rate for that day will be the rate
set forth in the daily statistical release designated as the
Composite 3:30 P.M. Quotations for U.S. Government Securities, or
any successor publication, published by the Federal Reserve Bank
of New York (including any such successor, the "Composite 3:30
P.M. Quotations") for that day under the caption "Federal Funds
Effective Rate". If on any relevant day the appropriate rate for
such day is not yet published in either H.15(519) or the
Composite 3:30 P.M. Quotations, the rate for such day will be the
arithmetic mean of the rates for the last transaction in
overnight Federal funds arranged prior to 9:00 a.m., New York
time, on that day by each of three leading brokers of Federal
funds transactions in New York City, selected by the
Administrative Agent.
"Fee Increase" - see Section 6.9.
"Finance Obligation(s)" means with respect to any
Person, as of the date of determination thereof, (i) any and all
of such Person's Indebtedness for Borrowed Money, (ii) any and
all of such Person's actual or contingent reimbursement
obligations with respect to letters of credit issued for such
Person's account, (iii) any and all of such Person's actual or
contingent obligations with respect to interest swap agreements
or currency swap agreements or other hedge agreements relating to
fluctuations in interest rates or currencies, (iv) any and all of
such Person's liabilities under Title IV of ERISA, and (v) any
and all indebtedness or obligations of any of the types described
in the preceding clauses (i), (ii), (iii) and (iv) for which such
Person is liable, directly or indirectly, under a Guaranty.
"Fiscal Quarter" means a fiscal quarter of any Fiscal
Year.
"Fiscal Year" means a fiscal year of the Company which
begins on the Sunday following the Saturday closest to December
31 of any calendar year and ends on the Saturday closest to
December 31 of the next succeeding calendar year.
"Fixed Rate Loan(s)" means any Loan other than (i) a
Base Rate Loan, and (ii) a Negotiated Loan which bears interest
at a fluctuating interest rate.
"Funding Date" means the date on which any Loan is
disbursed or scheduled to be disbursed.
"Funding Office" means (i) with respect to any
Negotiated Loan by any Bank, the office or Affiliate of such Bank
specified in the acceptance of the related Negotiated Loan
Confirmation, and (ii) with respect to any Eurodollar Loan or
Base Rate Loan by any Bank, the office or Affiliate of such Bank
specified for such Type of Loan beneath such Bank's signature
hereto or in any relevant Assignment. Any Bank's Funding Office
for a particular Loan shall be the office or Affiliate through
which such Bank shall fund or shall have funded such Loan.
Subject to Section 9.6(b), each Funding Office of each Bank may
be changed to another domestic or foreign office of such Bank or
domestic or foreign office of any Affiliate of such Bank upon
written notice from such Bank to the Company, the Administrative
Agent and the Negotiated Loan Agent.
"GAAP" means the generally accepted accounting
principles applied in the preparation of the audited consolidated
financial statements of the Company and its Subsidiaries as at
January 1, 1994, with (except as otherwise provided in Section
15.3) such changes thereto as (a) shall be consistent with the
then effective principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors and successors,
and (b) shall be concurred in by the independent certified public
accounts of recognized national standing certifying any financial
statements of the Company and its Subsidiaries.
"GE Capital" means General Electric Capital Corporation,
together with its successors and assigns.
"Group" - see Section 1.2.
"Guaranty" means any instrument or document by which a
Person has directly or indirectly guaranteed (whether by discount
or otherwise), endorsed (other than for collection or deposit in
the ordinary course of business), discounted with recourse to
such Person or with respect to which such Person is otherwise
directly or indirectly liable for the indebtedness or obligations
of any other Persons, including, without limitation, indebtedness
in effect guaranteed by such Person through any agreement
(contingent or otherwise) to (i) purchase, repurchase or
otherwise acquire such indebtedness, (ii) provide funds for the
payment or discharge of such indebtedness or any other liability
of the obligor of such indebtedness (whether in the form of
loans, advances, stock purchases, capital contributions or
otherwise), (iii) maintain the solvency or other financial
condition of the obligor of such indebtedness, or (iv) make
payment for any products, materials, supplies, transportation or
services pursuant to an agreement which requires such payment
regardless of the non-delivery or non-furnishing thereof, if in
any such case the purpose or intent of such agreement is to
provide assurance that such indebtedness will be paid or
discharged or that any agreements relating thereto will be
complied with or that the holders of such indebtedness will be
protected against loss in respect thereof.
"Indebtedness for Borrowed Money" means with respect to
any Person, as of the date of determination thereof, (i) any and
all of such Person's indebtedness for borrowed money (including,
without limitation, indebtedness for borrowed money which is
subordinated), (ii) any and all of such Person's Conditional Sale
Obligations, (iii) any and all indebtedness secured by any Lien
with respect to any property or asset owned by such Person,
regardless of whether the indebtedness secured thereby shall be
of or shall have been assumed by such Person, and (iv) any and
all indebtedness or obligations of any of the types described in
the preceding clauses (i), (ii) and (iii) for which such Person
is liable, directly or indirectly, under a Guaranty; provided,
however, that the obligations of a lessee under a lease shall not
constitute Indebtedness for Borrowed Money and any indebtedness
incurred by such Person which by the terms of the related
agreement is required to be used to retire a payment obligation
to a trade creditor arising from the purchase by such Person of
goods and services acquired for the purpose of resale in the
ordinary course of such Person's business shall not constitute
Indebtedness for Borrowed Money.
"Indemnified Liabilities" - see Section 15.6.
"Interest Period" means (i) with respect to any
Eurodollar Loan, the period commencing on such Eurodollar Loan's
Funding Date (or on the date such Loan was Converted to or
Continued as a Eurodollar Loan) and ending 1, 2, 3 or 6 months
thereafter as selected by the Company pursuant to Section 7.1(a)
or 7.2, (ii) with respect to any Base Rate Loan, the period
commencing on such Base Rate Loan's Funding Date (or on the date
such Loan was Converted to or Continued as a Base Rate Loan) and
ending on the last Business Day of the next following March,
June, September or December, whichever comes first, (iii) with
respect to any Swing Loan, the period commencing on such Swing
Loan's Funding Date and ending on the date specified by the
Company in its request for such Swing Loan, which date shall fall
not later than 7 days after such Funding Date, and (iv) with
respect to any Negotiated Loan, the period commencing on such
Negotiated Loan's Funding Date and ending on the date specified
by the Company in its Negotiated Loan Confirmation for such
Negotiated Loan; provided, however, that:
(A) if an Interest Period would otherwise end on
a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day (unless,
in the case of a Eurodollar Loan, such next succeeding
Business Day would fall in the next succeeding calendar
month, in which case such Interest Period shall end on
the next preceding Business Day);
(B) in the case of an Interest Period for any
Eurodollar Loan, if there exists no day numerically
corresponding to the day such Loan was made in the
month in which the last day of such Interest Period
would otherwise fall, such Interest Period shall end on
the last Business Day of such month;
(C) if an Interest Period for any Negotiated Loan
would otherwise extend beyond 182 days after such
Negotiated Loan's Funding Date, such Interest Period
shall end on the 182nd day after such Funding Date
unless such day is not a Business Day, in which case
such Interest Period shall end on the next preceding
Business Day; and
(D) no Interest Period for any Loan shall extend
beyond the date which is 66 days after the Termination
Date then in effect for any Bank.
"Liabilities" means any and all of the Company's
obligations to the Agents and the Banks, howsoever created,
arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due,
which arise out of or in connection with this Agreement, any Note
or any document, instrument or agreement executed in connection
with any of the foregoing.
"Lien" means any mortgage, pledge, lien, security
interest or other charge, including the retained security title
of a conditional vendor or lessor.
"Litigation" means any litigation, proceeding
(including without limitation any governmental proceeding or
arbitration proceeding), claim, lawsuit and/or investigation
(including, without limitation, any environmental litigation,
proceeding, claim, lawsuit and/or investigation) pending or
threatened against or involving the Company or any Subsidiary or
any of its or their businesses or operations.
"Loan Request" means any Revolving Loan Request, any
Swing Loan Request and any Negotiated Loan Confirmation.
"Loans" means, collectively, the Negotiated Loans, the
Revolving Loans and the Swing Loans, and "Loan" means,
individually, any Negotiated Loan, Revolving Loan or Swing Loan.
"Long Term Credit Agreement" means that certain Long
Term Credit Agreement dated as of the date of this Agreement,
among the Company, the Agents and the Banks, as the same may be
amended, modified or supplemented from time to time.
"Management Investor" means (i) any Person who is
listed in Schedule VII, (ii) any Person who on the Effective Date
is the owner of any shares of Class A Common Stock, and (iii) any
Person who on the date of determination, whether or not such
Person is otherwise a Management Investor, is an employee of the
Company, the Parent or their Subsidiaries or a director of the
Parent (elected to the Board of Directors by the Class A Common
Stock shareholders) and is then either the owner of shares of
Class A Common Stock or the holder of options to purchase shares
of Class A Common Stock pursuant to any employee stock option
plan established by or for the benefit of the employees of the
Company, the Parent or their Subsidiaries or directors of the
Parent.
"Margin Stock" has the meaning given to such term in
Regulations U and/or X.
"Master Register" - see Section 8.5(b).
"Material Litigation" or "Material Litigation
Development" means any Litigation or development in any
Litigation which could individually or in the aggregate impair
the validity or enforceability of or the ability of the Company
to perform any of its obligations under this Agreement or the
Notes or the MWCC Receivables Purchase Agreement, or materially
impair the ability of the Company to conduct business
substantially as now conducted, or materially and adversely
affect the consolidated business, operations, prospects or
financial condition of the Company and its Subsidiaries, taken as
a whole.
"Maturity Date" means at any time as to any Bank, the
date which is 66 days after the Termination Date then in effect
for such Bank or, if such date is not a Business Day, the next
succeeding Business Day; provided that if as of such Termination
Date the conditions set forth in Section 2.7(e) are satisfied,
then, for any Banks which have not consented to an extension of
the Termination Date pursuant to Section 2.7, Maturity Date shall
mean such Termination Date (without giving effect to such
extension) or, if such date is not a Business Day, the
immediately preceding Business Day.
"MWCC" means Montgomery Ward Credit Corporation.
"MWCC Receivables Purchase Agreement" means the Account
Purchase Agreement between MWCC and the Company, together with
the Guaranty made by GE Capital of MWCC's obligations under such
Account Purchase Agreement, both dated as of June 24, 1988, as
the same may be amended, modified or supplemented from time to
time in a manner which does not result in an Event of Default
under Section 13.1(j).
"Mobil" - see Section 10.14(c).
"Multiemployer Plan" means a "multiemployer plan", as
such term is defined in section 4001(a) of ERISA, which is
subject to Title IV of ERISA and to which the Company or any
ERISA Affiliate contributed or otherwise may have any liability.
"Negotiated Loan Agent" - see Preamble.
"Negotiated Loan Confirmation" - see Section 4.3(a).
"Negotiated Loan Register" - see Section 8.5(c).
"Negotiated Loans" - see Section 4.1.
"Negotiated Note(s)" - see Section 4.5.
"Non-Restricted Subsidiary" means each Subsidiary which
is not a Restricted Subsidiary.
"Non-United States Person" means a Person who is not
(i) a citizen or resident of the United States, (ii) a
corporation, partnership or other entity created or organized
under the laws of the United States, or (iii) an estate or trust
the income of which is subject to United States federal income
taxation regardless of its source; and "United States" means the
United States of America (including the States and the District
of Columbia).
"Notes" means, collectively, the Revolving Notes, the
Negotiated Notes and the Swing Notes; and "Note" means any
individual Revolving Note, Negotiated Note or Swing Note.
"Outstanding Original Shares" means all shares of Class
A Common Stock held by Management Investors at the close of
business on June 23, 1988 (including any shares of stock and any
options, warrants or other rights convertible or exchangeable for
shares of such stock received as a direct or indirect result of
any stock dividend, stock split or capitalization with respect to
such stock) but excluding any such Class A Common Stock
repurchased by the Parent under the Parent Shareholders'
Agreement with respect to any Management Investor, which
repurchased shares have not been (i) resold to a Management
Investor or an employee stock ownership plan established by or
for the benefit of the employees of the Company, the Parent or
their Subsidiaries, or (ii) reserved for issuance to employees of
the Company, the Parent or other Subsidiaries or directors of the
Parent, pursuant to an employee stock option plan established for
the benefit of such employees or directors.
"Parent" means Montgomery Ward Holding Corp., a
Delaware corporation, together with any Successor to Parent.
"Parent Shareholders' Agreement" means the agreement
dated as of June 22, 1988 among the Parent and certain
shareholders thereof, as such agreement has been and may
hereafter be amended, modified or supplemented from time to time
in a manner not inconsistent with this Agreement.
"Participant(s)" - see Section 15.4(a).
"Payment Sharing Notice" means a written notice from
any Bank or any Agent to all other parties under this Agreement,
given at any time that an Event of Default has occurred and is
continuing, which directs the Agents to allocate payments
received from the Company in accordance with Section 8.2.
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions under
ERISA.
"Percentage" - see Section 2.2(a).
"Permitted Lien" - see Section 11.2.
"Person" means an individual or a corporation,
partnership, trust, incorporated or unincorporated association,
joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind.
"Plan" means a "pension plan", as such term is defined
in ERISA, which is subject to Title IV of ERISA (other than a
Multiemployer Plan), established or maintained by the Company or
any ERISA Affiliate as to which the Company or any ERISA
Affiliate contributed or is a member or otherwise may have any
liability, including any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA
at any time during the five years preceding the Effective Date,
or by reason of being deemed to be a contributing sponsor under
section 4069 of ERISA.
"Qualified Purchaser" means (i) any Management
Investor, (ii) the Company and the Parent, (iii) GE Capital or a
parent or subsidiary thereof, (iv) a spouse, descendant or
ancestor of a Management Investor, or a spouse of a descendant or
ancestor of a Management Investor, or a trustee of a trust or
custodian of a custodianship for the benefit of one or more of
the foregoing and/or a Management Investor, (v) the personal
representative or any heir, legatee or devisee of any Management
Investor, or (vi) any employee stock ownership plan established
by or for the benefit of employees of the Company, the Parent or
their Subsidiaries.
"Ratio of Earnings to Fixed Charges" means for any
Ratio Period, the ratio of (i) the sum of Consolidated Net Income
for such Ratio Period before addition of any amount for interest
income and before deduction of any amount for all income taxes,
interest expense, depreciation, amortization and rental expense,
to (ii) the sum of the excess of all interest expense over
interest income plus all rental expense plus capital expenditures
(other than asset additions under capital leases determined in
accordance with GAAP, except as set forth in Section 15.3) of the
Company and its Subsidiaries payable with respect to such Ratio
Period, all as determined in accordance with GAAP (except as set
forth in Section 15.3).
"Ratio Period" means the eight (8) consecutive Fiscal
Quarters ending as of the date as of which the Ratio of Earnings
to Fixed Charges is being determined.
"Reference Banks" means The First National Bank of
Chicago, The Bank of New York and The Bank of Nova Scotia.
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System and any successor rule or
regulation of similar import as in effect from time to time.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System and any successor rule or
regulation of similar import as in effect from time to time.
"Regulation X" means Regulation X of the Board of
Governors of the Federal Reserve System and any successor rule or
regulation of similar import as in effect from time to time.
"Renewed Termination Date" - see Section 2.7.
"Replacement Agreement" - see Section 15.4(e).
"Replacement Bank" - see Section 15.4(e).
"Reply Date" - see Section 2.7.
"Reportable Event" has the meaning given to such term
in ERISA.
"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.
"Restricted Payment" - see Section 11.5.
"Restricted Subsidiary" means any Subsidiary designated
as such by the Company's Board of Directors or by an officer of
the Company authorized by the Board of Directors to make such
designation and which designation shall not thereafter have been
cancelled by the Company's Board of Directors or by an officer of
the Company authorized by the Board of Directors to effect such
cancellation; provided, however, that a Subsidiary may be
designated as a Restricted Subsidiary or such designation may be
cancelled if and only if immediately after such designation or
cancellation, and after giving effect thereto, no Event of
Default or Unmatured Event of Default shall have occurred and be
continuing.
"Revocation Cut-Off Date" - see Section 2.7.
"Revolving Loan(s)" - see Section 2.1.
"Revolving Loan Request" - see Section 7.1(a).
"Revolving Note" - see Section 2.5.
"Risk-Based Capital Guidelines" - see Section 9.1(b).
"SEC" means the Securities Exchange Commission and any
successor thereof.
"Secured Indebtedness" - see Section 11.2(xix).
"Special Restricted Subsidiary" means any Restricted
Subsidiary (i) with assets that constitute one percent (1%) or
less of the total assets of the Company and all Restricted
Subsidiaries, (ii) with net income for the most recent Fiscal
Year that constitutes one percent (1%) or less of the total net
income of the Company and all Restricted Subsidiaries for the
most recent Fiscal Year, and (iii) with equity of less than
$4,000,000.
"Subordinated Debt" means indebtedness of the Company
which is subordinated to the prior payment of the Liabilities on
terms and conditions acceptable to the Required Banks; provided
that any payments of principal which are scheduled to occur prior
to the Maturity Date of any Bank (pursuant to Section 2.7) shall
not constitute Subordinated Debt.
"Subsidiary" means a corporation of which the Company
and/or its other Subsidiaries own, directly or indirectly, such
number of outstanding shares as have more than 50% of the
ordinary voting power for the election of such corporation's
directors.
"Successor to Parent" - see Section 13.1(h).
"Swing Loan(s)" - see Section 3.1.
"Swing Loan Bank" means as to any Swing Loan, the Bank
making or which made such Swing Loan.
"Swing Loan Percentage" means as to any Bank with
respect to any Swing Loan, the ratio (expressed as a percentage)
of (i) the Unused Commitment of such Bank to (ii) the aggregate
of the Unused Commitments of all Banks, such percentage to be
calculated as if such Swing Loan were not outstanding at the time
of determination.
"Swing Loan Request" - see Section 3.3.
"Swing Note(s)" - see Section 3.5.
"Tax Benefit" - see Section 8.4(c).
"Taxes" - see Section 8.4(a).
"Terminated Bank" - see Section 15.4(e).
"Termination Date" means, with respect to each Bank,
the earlier to occur of (i) the later of (a) the 364th day after
the Effective Date or (b) the date to which the Commitment of
such Bank has been extended pursuant to Section 2.7, or (ii) such
other date on which the Aggregate Commitments shall terminate
pursuant to Section 5 or 13.2 or be reduced to zero pursuant to
Section 2.6 and, if in any case such day is not a Business Day,
the next preceding Business Day.
"Total Capitalization" means at any time the sum of
Debt of the Company and its Restricted Subsidiaries plus Capital
Base plus all Debt-Like Preferred Stock; provided, however, that
if Total Capitalization is being determined as at any date which
is not the last day of a Fiscal Quarter, "Total Capitalization"
equals (i) Debt of the Company and its Restricted Subsidiaries,
plus (ii) all Debt-Like Preferred Stock, plus (iii) Capital Base
as at the end of the most recently completed Fiscal Quarter, plus
(iv) any repayments of loans or advances to Parent received by
the Company since the end of the most recently completed Fiscal
Quarter, plus (v) any capital contributions received by the
Company since the end of the most recently completed Fiscal
Quarter, plus (vi) an amount equal to the net proceeds received
by the Company from the issue or sale after the end of the most
recently completed Fiscal Quarter of any shares of its capital
stock (including treasury stock but excluding Debt-Like Preferred
Stock), plus (vii) an amount equal to the net proceeds from the
issue or sale at any time of that portion of any indebtedness
(other than Subordinated Debt) of the Company or any Restricted
Subsidiary which after the end of the most recently completed
Fiscal Quarter is converted into shares of capital stock (but
excluding Debt-Like Preferred Stock) of the Company or into
indebtedness or shares of capital stock of the Parent, plus
(viii) any decrease since the end of the most recently completed
Fiscal Quarter in the aggregate amount of all advances by the
Company to, and investments of the Company in, Non-Restricted
Subsidiaries other than any decrease resulting from any aggregate
net loss incurred by such Non-Restricted Subsidiaries since the
end of the most recently completed Fiscal Quarter, minus (ix) any
Restricted Payments made since the end of the most recently
completed Fiscal Quarter, minus (x) any increase since the end of
the most recently completed Fiscal Quarter in the aggregate
amount of all advances by the Company to, and investments of the
Company in, Non-Restricted Subsidiaries other than any increase
resulting from any aggregate net income of such Non-Restricted
Subsidiaries since the end of the most recently completed Fiscal
Quarter.
"Type" - see Section 1.2.
"Unmatured Event of Default" means any event which if
it continues uncured will, with lapse of time or notice or lapse
of time and notice, constitute an Event of Default.
"Unused" means as to any Commitment of any Bank, at any
time, the greater of (i) zero or (ii) the Commitment of such Bank
minus the then outstanding Revolving Loans, Negotiated Loans and
Swing Loan of such Bank (or Swing Loans, in the case of the Bank
which is acting as the Administrative Agent), provided that for
purposes of distributing commitment fees under Sections 6.5 and
6.6, the term "Unused" shall be determined without subtracting
any outstanding Swing Loans.
"Welfare Plan" has the meaning assigned to such term by
ERISA.
1.2 Groups and Types of Loans. Loans hereunder are
distinguished by "Type" and by "Group". The "Type" of a Loan
refers to whether such Loan is a Base Rate Loan or a Eurodollar
Loan or a Negotiated Loan. A "Group" of Loans consists of
Revolving Loans of the same Type, with the same Funding Date or
Conversion or Continuation date, and having the same Interest
Period.
SECTION 2 REVOLVING LOANS.
2.1 Commitment to Make Revolving Loans. On the terms
and subject to the conditions of this Agreement, each of the
Banks, severally and for itself alone, agrees to make revolving
loans to the Company (herein collectively called the "Revolving
Loans" and individually called a "Revolving Loan") on a revolving
basis from time to time before the Termination Date for such Bank
in amounts equal to such Bank's Percentage of such aggregate
amounts as the Company may from time to time request pursuant to
Section 7.1, but subject to the limits specified in Section 2.2.
The Revolving Loans may be either Eurodollar Loans or Base Rate
Loans, as selected by the Company pursuant to Section 7.1.
2.2 Revolving Loan Limits. The Revolving Loans shall
be subject to the following limits as determined by the
Administrative Agent pursuant to Section 8.5(b):
(a) Each Bank's share of a Group of Revolving Loans
shall be equal to the ratio (expressed as a percent) that
(i) the Unused Commitment of such Bank immediately prior to
giving effect to the funding of such Group, plus the
aggregate principal amount (or portion thereof) of all Loans
of such Bank to be repaid concurrently with the proceeds of
such funding (but not in excess of such Bank's Commitment),
minus the aggregate principal amount of all Loans of such
Bank which have been requested (or in the case of Negotiated
Loans, confirmed) but not yet funded and which are to be
funded prior to the expiration of the Interest Period of
such Group, bears to (ii) the aggregate of the Unused
Commitments of all Banks immediately prior to giving effect
to such funding, plus the aggregate principal amount (or
portion thereof) of all Loans to be repaid concurrently with
the proceeds of such funding, minus the aggregate principal
amount of all Loans which have been requested (or in the
case of Negotiated Loans, confirmed) but not yet funded and
which are to be funded prior to the expiration of the
Interest Period of such Group (such percentage, as to each
Bank with respect to the Group of Revolving Loans relating
to such funding, being herein called such Bank's
"Percentage"); and
(b) The aggregate principal amount of all Revolving
Loans of all Banks at any one time outstanding, when added
to the aggregate principal amount of all Swing Loans and
Negotiated Loans then outstanding, shall not exceed the then
Aggregate Commitment.
2.3 Borrowing Procedure. The Company shall make
requests for Revolving Loans, and each Bank (and, to the extent
that the Administrative Agent has received immediately available
funds from one or more Banks, the Administrative Agent) shall
fund such requests, pursuant to the procedure set forth in
Section 7.1.
2.4 Repayment. The Company promises to pay to each
Bank on such Bank's Maturity Date (or earlier date required under
Section 7.2(c)) the principal amount of all Revolving Loans made
by such Bank which remain outstanding on such Maturity Date (or
such earlier date).
2.5 Revolving Notes. Each Revolving Loan shall be
evidenced by the Company's promissory note (as amended, modified
or supplemented from time to time, and together with any renewals
thereof or exchanges or substitutions therefor, collectively
called the "Revolving Notes" and individually called a "Revolving
Note") substantially in the form set forth as Exhibit A, with
appropriate insertions, each of which shall be dated the
Effective Date and made payable to the order of each Bank,
respectively.
2.6 Voluntary Termination or Reduction of the
Commitments.
prior irrevocable notice received by the Administrative Agent
(which shall promptly on the same day or on the next Business Day
advise each other Agent and each Bank thereof), the Company may
terminate concurrently the Commitments of all the Banks in their
entirety upon payment in full (in Dollars and in same day funds)
of all outstanding Revolving Loans, Negotiated Loans and Swing
Loans, together with all interest accrued thereon and all fees
and other obligations (including breakage fees pursuant to
Section 9.5) of the Company related thereto.
(b) Reduction. At any time on at least five days'
prior irrevocable notice received by the Administrative Agent
(which shall promptly on the same day or on the next Business Day
advise each other Agent and each Bank thereof), the Company may
permanently reduce the Aggregate Commitment (such reduction to be
pro rata among the Banks according to their respective
Commitments). Concurrently with each such reduction of the
Aggregate Commitment, the Company shall make a mandatory
prepayment of the Loans such that after giving effect thereto (i)
the sum of all outstanding Revolving Loans, Negotiated Loans and
Swing Loans shall not exceed the then reduced amount of the
Aggregate Commitment, and (ii) the aggregate principal amount of
all Revolving Loans of any Bank, plus (except in the case of the
Bank which is the Administrative Agent) any Swing Loan of such
Bank, shall not exceed the amount of such Bank's Commitment as so
reduced. Each prepayment pursuant to this Section 2.6(b) shall
be subject to the provisions of Section 8.1.
2.7 Extension of the Termination Date. (a) At any
time not more than 60 nor less than 40 days prior to the
Termination Date then in effect for each Bank (such Bank's
"Existing Termination Date"), the Company may request (but not
more than once in any calendar year) each Bank to extend its
Existing Termination Date to the date ("Renewed Termination
Date") which is 364 days after the Revocation Cut-Off Date
(defined below) or, if such 364th day is not a Business Day, the
immediately preceding Business Day. Such request shall be
delivered to the Agents and each Bank and shall be in the form
set forth on Exhibit B hereto ("Extension Request").
(b) On or before the date ("Reply Date") specified by
the Company in its Extension Request (which shall be 30 days
after the date on which the Extension Request was given, or if
such 30th day is not a Business Day, the immediately preceding
Business Day), each of the Banks shall notify the Company and the
Administrative Agent in writing whether or not such Bank will
consent to such Extension Request, such notification to be in the
form set forth on Exhibit C hereto ("Extension Reply"). No Bank
shall be obligated to consent to any such Extension Request.
Failure of a Bank to furnish an Extension Reply prior to the
Existing Termination Date shall constitute a refusal by such Bank
to extend its Existing Termination date, it being understood,
however, that prior to the Existing Termination Date, any Bank
which has not consented to such Extension Request may do so by
furnishing to the Company and the Administrative Agent an
Extension Reply consenting to such Extension Request.
(c) Prior to the date ("Revocation Cut-Off Date")
which is 4 Business Days prior to the Existing Termination Date,
each Bank in its absolute and sole discretion may revoke any
Extension Reply previously executed by it by furnishing written
notice of such revocation to the Company and the Administrative
Agent. Any Extension Reply executed by a Bank after the
Revocation Cut-Off Date and any Extension Reply not revoked
before the close of business on the Revocation Cut-Off Date shall
be irrevocable.
(d) If, by the close of business on the second Business
Day prior to the Existing Termination Date, the Administrative
Agent has not received Extension Replies representing consents to
the Extension Request executed by Banks representing at least
66-2/3% of the Commitments of all Banks, then on the Business Day
before the Existing Termination Date the Company shall prepay all
Loans (whether Revolving Loans, Swing Loans, or Negotiated Loans)
then outstanding and all amounts related thereto, including,
without limitation, all accrued interest and fees pursuant to
Section 6 and breakage fees pursuant to Section 9.5 and shall
make a borrowing of Revolving Loans from all Banks, pro rata
among the Banks according to each Bank's Commitment, in an amount
which (together with other funds then available to the Company)
shall be at least sufficient to prepay such Loans and amounts
related thereto.
(e) If, but only if, the following conditions shall
have been satisfied:
(i) On or prior to the Reply Date, the
Administrative Agent shall have received Extension
Replies which (A) represent consents to the Extension
Request, and (B) have been executed by Banks
representing at least 66-2/3% of the Commitments of all
Banks;
(ii) On or prior to the close of business on the
Existing Termination Date, the Administrative Agent
shall have received Extension Replies which (A)
represent consents to the Extension Request, (B) have
been executed by Banks (the "Extension Banks")
representing at least 66-2/3% of the Commitments of all
Banks, and (C) have not been revoked prior to the close
of business on the Revocation Cut-Off Date; and
(iii) As of the Existing Termination Date, no
Event of Default or Unmatured Event of Default shall
exist and the Administrative Agent shall have received
from the Company a certificate of an Authorized Officer
of the Company dated the date of such Existing
Termination Date to such effect,
then on such Existing Termination Date (A) the Termination Date
for each of the Extension Banks (but not for any Bank which is
not an Extension Bank) shall be extended to the Renewed
Termination Date, and (B) the Company shall pay in full all Loans
with respect to all Banks which are not Extension Banks.
(f) For purposes of satisfying the conditions in
Section 2.7(e), the Company shall have the right, pursuant to
Section 15.4(e), to replace Banks, including during the period
from the Reply Date through the Existing Termination Date.
SECTION 3 SWING LOANS.
3.1 Commitment to Make Swing Loans. On the terms and
subject to the conditions of this Agreement, each of the Banks
severally, and for itself alone, agrees to make loans (herein
collectively called "Swing Loans" and individually called a
"Swing Loan") to the Company in such amounts as the Company may
from time to time request, but subject to the limits specified in
Section 3.2.
3.2 Swing Loan Limits. The Swing Loans shall not
exceed the following limits: (i) no Bank (except the Bank which
is Administrative Agent) shall be obligated to make any Swing
Loan in excess of the Unused Commitment of such Bank, (ii) the
aggregate principal amount of Swing Loans at any one time
outstanding as determined by the Administrative Agent pursuant to
Section 8.5(b), when added to all swing loans (if any) then
outstanding under the Long Term Credit Agreement, shall not
exceed $30,000,000, (iii) so long as the aggregate principal
amount of all Loans under this Agreement, when added to the
aggregate principal amount of all loans (if any) then outstanding
under the Long Term Credit Agreement, shall exceed $301,500,000,
the Company shall have no right to request from any Bank other
than the Bank which is Administrative Agent, and no Bank other
than the Bank which is Administrative Agent shall be required to
make, any Swing Loan, (iv) there shall be not more than one Swing
Loan outstanding at any one time from any Bank which is not the
Administrative Agent, and (v) the aggregate principal amount of
Swing Loans shall not exceed the limits specified in Section
2.2(b).
3.3 Borrowing Procedure. Each Swing Loan shall be
made on notice, delivered by the Company to the Swing Loan Bank
and to the Administrative Agent, not later than 1:00 p.m.,
Chicago time, or such other time agreed to by the Company and the
Swing Loan Bank, on the date on which the Company desires to
obtain such Swing Loan, such notice to be in writing or by telex,
or telephonic notice confirmed promptly thereafter in writing,
substantially in the form of Exhibit G ("Swing Loan Request").
Not later than 2:00 p.m., Chicago time, or such other time agreed
to by the Company and the Swing Loan Bank, on such date, the
Swing Loan Bank shall provide the Company, at the Funding Office
of such Bank for Base Rate Loans, immediately available funds in
the amount of such Swing Loan unless prior to such time the
Administrative Agent shall have advised the Swing Loan Bank that
such Loan would not be within the limits specified in Section 3.2
or the Swing Loan Bank becomes aware that the conditions set
forth in Section 12.2 have not been satisfied with respect to
such Loan, in either of which events such Swing Loan shall not be
made. Concurrently with each funding of a Swing Loan, the Swing
Loan Bank shall give notice of such Swing Loan to the
Administrative Agent. The Swing Loan Bank shall be entitled to
assume that each of the conditions to the making of the Swing
Loan have been satisfied absent actual knowledge to the contrary
received by the Swing Loan Bank.
3.4 Interest and Repayment. Each Swing Loan shall,
before the maturity of such Swing Loan, bear interest at the Base
Rate. Each Swing Loan (including accrued interest) shall be due
and payable on the last day of the Interest Period applicable
thereto, but in no event later than the Termination Date of the
Bank making such Swing Loan. Each Swing Loan shall be
prepayable, at the Company's option, on notice to each of the
Swing Loan Bank and the Administrative Agent. Each payment of
principal or interest on a Swing Loan shall be made by the
Company directly to the Swing Loan Bank at its Funding Office for
Base Rate Loans accompanied by notice to the Administrative
Agent. Promptly upon repayment of any Swing Loan, the Swing Loan
Bank shall advise the Administrative Agent thereof.
3.5 Swing Notes. Each Swing Loan shall be evidenced
by the Company's promissory note (as amended, modified or
supplemented from time to time, and together with any renewals
thereof or exchanges or substitutions therefor, collectively
called the "Swing Notes" and individually called a "Swing Note")
substantially in the form of Exhibit D, with appropriate
insertions, which shall be dated the Effective Date and made
payable to the order of each Bank, respectively.
3.6 Participation of Banks. From time to time when
any Swing Loans are outstanding, (a) upon written demand made of
the Administrative Agent and the Company by any Swing Loan Bank,
the Company agrees to request Loans from all of the Banks in
accordance with Section 2.1 and to apply the proceeds of such
Loans to the repayment of all outstanding Swing Loans of such
Swing Loan Bank; and (b) upon written demand by any Swing Loan
Bank, each other Bank irrevocably and unconditionally shall
purchase and receive from such Swing Loan Bank, without recourse
or warranty (except that the outstanding Swing Loans in fact were
made and not theretofore sold or assigned by such Swing Loan
Bank), an undivided interest and participation in the Swing Loans
then outstanding of such Swing Loan Bank, by paying to the
Administrative Agent, in Dollars and in same day funds, an amount
equal to such other Bank's Swing Loan Percentage of all Swing
Loans of such Swing Loan Bank then outstanding, whereupon the
Administrative Agent shall promptly, but not more than one
Business Day thereafter, pay over such funds to such Swing Loan
Bank. Upon receipt by such Swing Loan Bank of the funds required
to be paid to the Administrative Agent, such Swing Loans shall
thereafter be treated in all respects as Base Rate Revolving
Loans under this Agreement, except that such Swing Loan Bank may
retain for its own account all interest accrued thereon prior to
the date of each such payment.
SECTION 4 NEGOTIATED LOANS
4.1 Negotiated Loan Option. On the terms and subject
to the conditions of this Agreement, each of the Banks, severally
and for itself alone, agrees that the Company shall have the
option from time to time to request loans (herein collectively
called "Negotiated Loans" and individually called a "Negotiated
Loan"), and that if such Bank, in its sole discretion, accepts
such request for a Negotiated Loan it will make such Negotiated
Loan to the Company in accordance with such request as so
accepted, subject, however, to the limits specified in
Section 4.2. No Bank shall be obligated to accept any request
for a Negotiated Loan. The Company shall not request any
Negotiated Loan that would fund within the two Business Days
before the then effective Termination Date, unless the Company
shall have then received Extension Replies which represent
unrevoked consents to the Extension Request which have been
executed by Banks representing at least 66-2/3% of the
Commitments.
4.2 Negotiated Loan Limits. The aggregate principal
amount of all Negotiated Loans, when added to the aggregate
principal amount of all Revolving Loans and Swing Loans then
outstanding, all as determined by the Administrative Agent
pursuant to Section 8.5(b), shall not exceed the Aggregate
Commitment at any time. Subject to the foregoing, the Negotiated
Loans of any Bank may be less than, equal to or greater than the
Commitment of such Bank.
4.3 Procedure for Negotiated Loans.
(a) Negotiated Loan Confirmation. The Company shall
make each request for a Negotiated Loan by furnishing a request
to any Bank selected by the Company, such request to be in
writing, or by telex or telephonic notice confirmed promptly
thereafter in writing, substantially in the form of Exhibit H
("Negotiated Loan Confirmation"). Each Negotiated Loan
Confirmation shall specify the principal amount, the Interest
Period, the interest rate, and the Funding Date of such
Negotiated Loan, together with the other information provided for
in the Negotiated Loan Confirmation. Concurrently with each
acceptance by a Bank of a Negotiated Loan Confirmation, the
Company and the accepting Bank shall advise in writing, or by
telex or telephonic notice confirmed promptly thereafter in
writing, each of the Negotiated Loan Agent and the Administrative
Agent of the amount, maturity and Funding Date of the requested
Negotiated Loan as so accepted.
(b) Funding of Negotiated Loans.
the Funding Date of each Negotiated Loan, the Bank
making such Negotiated Loan shall provide (subject to
netting pursuant to Section 7.1(d)) the Negotiated Loan
Agent at such Agent's Funding Office with immediately
available Dollars covering such Bank's Negotiated Loan
to be funded on such Funding Date. The Negotiated Loan
Agent shall pay over such funds to the Company on such
day unless prior to such time, the Negotiated Loan
Agent receives notice from the Company or the
Administrative Agent, whether pursuant to Section
4.3(b)(ii) or Section 8.5(b) or otherwise, that the
Company has not satisfied the conditions set forth in
Section 12. If the Negotiated Loan Agent receives such
notice, then (A) the Negotiated Loan Agent shall not
pay over such funds to the Company on such day, (B) the
Loan Request related to such Loan or Loans shall be
deemed cancelled in its entirety, (C) the Company shall
be liable to such Bank in accordance with Section 9.5,
and (D) the Negotiated Loan Agent shall return the
amount previously provided to the Negotiated Loan Agent
by such Bank on the next following Business Day,
together with interest on such amount for each day that
elapses from and including the originally scheduled
Funding Date of such Negotiated Loan(s) to but
excluding the day on which the Negotiated Loan Agent so
returns such amount at the Federal Funds Rate for each
such day, based upon a year of 360 days.
(ii) The Company agrees to notify the Negotiated
Loan Agent, the Administrative Agent and the Bank
scheduled to make a Negotiated Loan immediately of any
failure to satisfy the conditions set forth in Section
12. The Negotiated Loan Agent shall be entitled to
assume that each of such conditions have been satisfied
absent actual knowledge to the contrary received by the
Negotiated Loan Agent.
(iii) Concurrent with each funding of a Negotiated
Loan, the Negotiated Loan Agent shall advise the
Administrative Agent thereof.
4.4 Interest and Repayment. Each Negotiated Loan
shall bear interest payable at such rate and at such times as set
forth in the related Negotiated Loan Confirmation, it being
understood that such interest rate may be fixed or fluctuating
and may be less than, equal to or greater than the interest rate
applicable to Revolving Loans or Swing Loans. Each Negotiated
Loan shall mature on the last day of the Interest Period
applicable thereto, but in no event later than the Maturity Date
of the Bank making such Negotiated Loan. Accrued interest on
each Negotiated Loan shall be payable directly to the Bank making
such Negotiated Loan. The principal of each Negotiated Loan
shall be paid by the Company to the Negotiated Loan Agent for the
account of the Bank making such Negotiated Loan. Promptly upon
repayment of each Negotiated Loan, the Negotiated Loan Agent
shall advise the Administrative Agent thereof. Each Bank making
a Negotiated Loan shall give notice in writing to the
Administrative Agent and the Negotiated Loan Agent of any failure
by the Company to pay interest when due on any Negotiated Loan.
4.5 Negotiated Loan Notes. Each Negotiated Loan shall
be evidenced by the Company's promissory note (as amended,
modified or supplemented from time to time and together with any
renewals thereof or exchanges or substitutions thereof,
collectively called the "Negotiated Notes" and individually
called a "Negotiated Note" and being substantially in the form
set forth in Exhibit E), in each case with appropriate
insertions, each of which shall be dated the Effective Date and
made payable to the order of each Bank, respectively.
SECTION CONTROL
If a Change of Control occurs, then upon thirty days'
written notice to the Company given not later than 180 days after
the date on which written notice of the occurrence of such Change
of Control is given to the Banks pursuant to Section 11.1(h)
following any Change of Control, (i) the Required Banks may by
notice to the Company terminate the Commitments of all of the
Banks, whereupon all of the Commitments shall terminate
immediately, and (ii) Banks holding Notes evidencing at least
66-2/3% of the aggregate unpaid principal amount of all Loans may
by notice to the Company declare all Liabilities to be due and
payable, whereupon all Liabilities shall become immediately due
and payable, all without presentment, demand or further notice of
any kind, all of which are hereby waived by the Company.
SECTION 6 INTEREST AND FEES.
6.1 Interest Rates. The Company hereby promises to
pay interest on the unpaid principal amount of each Loan for the
period commencing on the Funding Date of such Loan until such
Loan is paid in full, as follows:
(a) if such Loan is a Base Rate Loan or a Swing
Loan, at a rate per annum equal to the Base Rate from
time to time in effect;
(b) if such Loan is a Eurodollar Loan, at a rate
per annum during each Interest Period equal to the
Eurodollar Rate applicable to such Interest Period,
plus 0.375% per annum, plus any applicable Eurodollar
Margin Increment; and
(c) if such Loan is a Negotiated Loan, at a rate
determined pursuant to Section 4.4;
provided, however, that after maturity of any Loan (whether by
acceleration or otherwise), such Loan shall bear interest on the
unpaid principal amount thereof at a rate per annum equal to the
Base Rate from time to time in effect (but not less than the
applicable interest rate in effect at maturity) plus 2% per
annum. The Company hereby further promises to pay any additional
interest on the unpaid principal amount of each applicable Fixed
Rate Loan, whether before or after the maturity thereof, as may
be required in accordance with Section 9.
6.2 Eurodollar Margin Increment. If at the end of any
Fiscal Quarter, the Ratio of Earnings to Fixed Charges determined
as of the last day of such Fiscal Quarter is less than 1.25:1, or
if the Company has failed to provide on a timely basis the
certificate required to be furnished by it pursuant to
Section 11.1(c), then subject to Section 6.9, from and including
the first day after the end of such Fiscal Quarter to but
excluding the first day after the end of the following Fiscal
Quarter, the Company shall pay additional interest with respect
to its Eurodollar Loans outstanding during such following Fiscal
Quarter in an amount equal to 0.125% per annum (the "Eurodollar
Margin Increment").
6.3 Interest Payment Dates. Accrued interest on each
Loan shall be payable on the last day of the Interest Period
therefor and on each Conversion date related to such Loan;
provided, however, that accrued interest on each Eurodollar Loan
which has an Interest Period of 6 months shall be payable on the
90th day of such Interest Period or, if such day is not a
Business Day, on the next succeeding Business Day; and provided,
further, that any interest payable with respect to an applicable
Eurodollar Margin Increment shall be payable within fifteen days
of the last day of the Fiscal Quarter during which such
Eurodollar Margin Increment is applicable and on the Maturity
Date to the extent any Eurodollar Margin Increment has
theretofore accrued and remains outstanding. After maturity of
any Loan, accrued interest on such Loan shall be payable on
demand.
6.4 Setting and Notice of Loan Rates.
(a) The applicable interest rate for each Loan (other
than a Negotiated Loan) shall be determined by the Administrative
Agent and, in the case of Eurodollar Loans, notice thereof shall
be given by the Administrative Agent to the Company and each Bank
promptly, but in any event on the same day as received. Each
determination of the applicable interest rate by the
Administrative Agent shall be conclusive and binding upon the
parties hereto, in the absence of manifest error.
(b) In the case of Eurodollar Loans, each Reference
Bank agrees to use its best efforts to notify the Administrative
Agent in a timely fashion of its applicable rate after the
Administrative Agent's request therefor. If as to any Interest
Period any one or more of the Reference Banks is unable or for
any reason fails to notify the Administrative Agent of its
applicable rate by 9:30 a.m., Chicago time, two Business Days
before the beginning of such Interest Period, then the applicable
Eurodollar Rate shall be determined on the basis of the rate or
rates of which the Administrative Agent is given notice by the
remaining Reference Bank or Banks by such time. If none of the
Reference Banks notifies the Administrative Agent of such a rate
prior to 9:30 a.m., Chicago time, two Business Days before the
beginning of such Interest Period, then (i) the Administrative
Agent shall promptly notify the other parties thereof and (ii) at
the Company's option, the Loan Request or Conversion Notice
delivered by the Company with respect to such Interest Period
shall be cancelled or, if not cancelled, shall be deemed to have
specified a Base Rate Loan.
(c) The Administrative Agent shall, upon written
request of the Company or any Bank, deliver to the Company or
such Bank a statement showing the computations used by the
Administrative Agent in determining the interest rate applicable
to any Eurodollar Loan.
6.5 Commitment Fee. The Company agrees to pay to the
Administrative Agent for the account of each Bank (pro rata in
accordance with the average daily amount of the Unused Commitment
of such Bank), within fifteen days of the last day of December
1994, and thereafter within fifteen days of the last day of each
calendar quarter of each year until the Termination Date for such
Bank, and on the Termination Date for such Bank, a commitment fee
computed at the rate of 0.10% per annum on the average daily
amount of the Aggregate Commitment minus the aggregate principal
amount of all Revolving Loans and Negotiated Loans then
outstanding during the quarterly or other period preceding the
date of such payment (commencing, in the case of the first of
such periods, on and as of the Effective Date), payable in
arrears for the quarterly or other period then ending; provided,
however, that if at the end of any Fiscal Quarter, the Ratio of
Earnings to Fixed Charges determined as of the last day of such
Fiscal Quarter is less than 1.25:1 then from and including the
first day after the end of such Fiscal Quarter to but excluding
the first day after the end of the following Fiscal Quarter, the
rate set forth above shall be increased by 0.0675% per annum.
6.6 Displaced Commitment Fee. The Company agrees to
pay to the Administrative Agent for the account of each Bank (pro
rata in accordance with the respective average daily amount of
the Unused Commitment of each Bank), within fifteen days of the
last day of December 1994, and thereafter within 15 days of the
last day of each calendar quarter of each year until the
Termination Date of such Bank and on the Termination Date of such
Bank, a displaced commitment fee computed at the rate of 0.10%
per annum on the average daily amount of Displaced Loans during
the quarterly or other period preceding the date of such payment
(commencing, in the case of the first of such periods, on and as
of the Effective Date), payable in arrears for the quarterly or
other period then ending. As used herein, the term "Displaced
Loans" means for all Banks which, as a result of their Negotiated
Loans, have made Loans in excess of their respective Commitment,
the Loans representing the excess of all Loans made by such Banks
over the aggregate Commitments of such Banks.
6.7 Agents' Fees. The Company agrees promptly to pay
to each Agent such fees as may be agreed from time to time by the
Company and such Agent.
6.8 Computation of Interest and Fees. Interest on
Eurodollar Loans shall be computed for the actual number of days
elapsed on the basis of a 360-day year. Interest on Negotiated
Loans shall be computed in accordance with the related Negotiated
Loan Confirmations. Interest on Base Rate Loans and all fees
shall be computed for the actual number of days elapsed on the
basis of a 365- or, if applicable, 366-day year. The interest
rate applicable to each Base Rate Loan, and after maturity of any
other Type of Loan the interest rate applicable to such Loan,
shall change simultaneously with each change in the Base Rate
without any notice or other action involving the Company.
6.9 Determination of Margin and Fee Increase. For the
purposes of calculating the Eurodollar Margin Increment in
Section 6.2 or any fee increase (a "Fee Increase") in Section
6.5, the Ratio of Earnings to Fixed Charges as at the end of any
Fiscal Quarter shall be determined (i) in the case of each of the
first three Fiscal Quarters of any Fiscal Year by reference to
the certificate from the Company to be delivered to each of the
Banks pursuant to Section 11.1(c) and (ii) in the case of the
last Fiscal Quarter of any Fiscal Year, initially by reference to
a certificate from the Company to be delivered to each of the
Banks not later than ninety days following the end of such Fiscal
Quarter in the form of the certificate delivered pursuant to the
foregoing clause (i) (but limited to the calculation of the Ratio
of Earnings to Fixed Charges). Each such certificate shall
contain the Company's calculation of the Ratio of Earnings to
Fixed Charges as at the end of the preceding Fiscal Quarter.
Until receipt by the Banks of such certificate, failure of the
Company to furnish such certificate on a timely basis shall be
deemed (for purposes of Sections 6.2 and 6.5) to constitute an
acknowledgement by the Company that the Ratio of Earnings to
Fixed Charges is less than 1.25:1. If, in the case of any Fiscal
Quarter, the actual Ratio of Earnings to Fixed Charges as at the
end of the preceding Fiscal Quarter (as determined by reference
to the audited report delivered pursuant to Section 11.1, to any
correction with respect to any certificate previously furnished
by the Company or to any certificate furnished on an untimely
basis) results in a Eurodollar Margin Increment or a Fee Increase
different from that applied in connection with the Company's
calculation, such new Eurodollar Margin Increment or Fee Increase
shall come into effect immediately upon the Banks' receipt of
such report, correction or untimely certificate and shall be
given retroactive effect to and including the first day of the
Fiscal Quarter immediately following the Fiscal Quarter to which
such report, correction or untimely certificate relates, and
within fifteen days of the Banks' receipt of such report,
correction or untimely certificate, either the Company shall pay
to the Administrative Agent (for the account of the Banks) or the
Banks shall pay to the Administrative Agent (for return to the
Company) such amounts as shall be necessary to give effect to
such new Eurodollar Margin Increment or such new Fee Increase.
SECTION 7 REVOLVING LOAN PROCEDURES;
CONVERSIONS AND CONTINUATIONS.
7.1 Procedure for Revolving Loans.
(a) Loan Requests. The Company shall give the
Administrative Agent irrevocable telephonic notice (promptly
confirmed in writing on the same day), not later than 9:30 a.m.,
Chicago time, of each borrowing of Revolving Loans (i) in the
case of a Eurodollar Loan, at least three (3) Business Days prior
to the Funding Date for such Loans and (ii) in the case of a Base
Rate Loan, on the Funding Date for such Loans. The
Administrative Agent shall advise each Bank of such notice
promptly, but in any event on the same day as received, and, in
the case of Eurodollar Loans, request each Reference Bank to
notify the Administrative Agent of its applicable rate (as
contemplated in the definition of Eurodollar Rate). Each such
notice from the Company to the Administrative Agent shall be
substantially in the form of Exhibit F ("Revolving Loan Request")
with appropriate insertions, and shall specify (i) the Funding
Date for the Revolving Loans requested, (ii) the aggregate amount
of the Revolving Loans requested (in an amount permitted under
Section 7.1(b)), (iii) whether the requested Revolving Loans
shall be Eurodollar Loans or Base Rate Loans, and (iv) in the
case of Eurodollar Loans, the Interest Period therefor (subject
to the limitations set forth in the definition of Interest
Period).
(b) Amount and Increments of Revolving Loans. Each of
the Company's Revolving Loan Requests shall request Revolving
Loans in a minimum aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 over such amount, not to exceed, in the
aggregate at any one time outstanding, the limits specified in
Section 2.2
(c) Funding of Revolving Loans.
(i) Not later than 12:00 noon, Chicago time, on
each Funding Date for Revolving Loans, each Bank shall
provide (subject to netting pursuant to Section 7.1(d))
the Administrative Agent at such Agent's Funding Office
for Base Rate Loans with immediately available Dollars
covering such Bank's Revolving Loan and, if the
conditions set forth in Section 12 shall have been
satisfied not later than 9:00 a.m., Chicago time, on
such date, such Agent shall pay over such funds to the
Company on such day. If such conditions have not been
satisfied prior to such time, then (A) such Agent shall
not pay over such funds to the Company on such day, (B)
the Loan Request related to such Loan shall be deemed
cancelled in its entirety, (C) the Company shall be
liable to each Bank in accordance with Section 9.5, and
(D) such Agent shall return the amount previously
provided to such Agent by each Bank on the next
following Business Day together with interest on such
amount for each day that elapses from and including
such Loan's originally scheduled Funding Date to but
excluding the day on which such Agent so returns such
amount at the Federal Funds Rate for each such day,
based upon a year of 360 days.
(ii) The Company, notwithstanding its previous
delivery of any documents required under Section 12
with respect to a particular Loan, agrees to notify the
Administrative Agent immediately of any failure to
satisfy the conditions precedent to the making of any
Revolving Loan. The Administrative Agent shall be
entitled to assume, after it has received each of the
documents required under Section 12 with respect to a
particular Loan, that each of the conditions precedent
to the making of such Loan have been satisfied absent
actual knowledge to the contrary received by such Agent
prior to the time of the receipt of such documents.
(d) Netting. If any Bank makes a Loan hereunder on a
day on which the Company is to repay all or any part of any
outstanding Revolving Loan, Swing Loan or Negotiated Loan, as the
case may be, held by such Bank, such Bank shall apply the
proceeds of such new Loan to make such repayment and only an
amount equal to the positive difference, if any, between the
amount being borrowed from such Bank and the amount being repaid
to such Bank shall be made available by such Bank to the
Administrative Agent as provided in Section 7.1(c).
7.2 Conversion and Continuation Procedures.
(a) The Company may (i) Convert all or any part of any
Group of outstanding Revolving Loans (on a pro rata basis among
the Banks based upon their respective Percentage share of such
Group) into Revolving Loans of a different Type or (ii) Continue
on the same basis all or any part of any Group of outstanding
Revolving Loans as the same Type; provided, that, in any case the
Company shall give an irrevocable notice of such Conversion or
Continuation (a "Conversion Notice") to the Administrative Agent
by 10:00 a.m., Chicago time, on a day which in the case of a
Conversion into or a Continuation of Base Rate Loans is at least
one (1) Business Day prior to the proposed date of such
Conversion or Continuation and, in the case of a Conversion into
or a Continuation of Eurodollar Loans, is at least three (3)
Business Days prior to such date. Each such Conversion Notice
shall be effective upon the Administrative Agent's receipt
thereof, shall be in writing (or by telephone promptly confirmed
in writing on the same day), shall specify the date and amount of
such Conversion or Continuation, the Group of Loans to be so
Converted or Continued, the Type of Loans to be Converted into,
and the Interest Period(s) to be applicable to such Loans (in the
case of Eurodollar Loans). Promptly upon receipt of each
Conversion Notice the Administrative Agent shall advise each Bank
thereof and, in the case of Conversions into or Continuations of
Eurodollar Loans, shall request each Reference Bank to notify
such Agent of its applicable rate (as contemplated in the
definition of Eurodollar Rate).
(b) Each Conversion or Continuation of Revolving Loans
shall be in an aggregate principal amount of at least $5,000,000
and an integral multiple of $1,000,000 over such amount. If the
Company does not deliver a Conversion Notice on or before the day
that is three (3) Business Days before the last day of the then
current Interest Period with respect to any Revolving Loan that
is a Eurodollar Loan, such Revolving Loan automatically shall be
Converted into a Base Rate Loan at the end of its then current
Interest Period unless theretofore paid in full. If the Company
does not deliver a Conversion Notice on or before the day before
the last day of the then current Interest Period with respect to
any Revolving Loan that is a Base Rate Loan, such Revolving Loan
automatically shall be Continued as a Base Rate Loan at the end
of its then current Interest Period unless theretofore paid in
full.
(c) Notwithstanding any other provision of this
Agreement, (i) no Group of Revolving Loans shall be Continued or
Converted, if 4 Business Days before the last day of the then
current Interest Period, any Bank notifies the Administrative
Agent that such Loans are not to be Continued or Converted, in
which case such Group of Loans shall be due and payable on the
last day of such Interest Period; provided, however, that this
clause (i) shall not apply to any Group of Revolving Loans which
was made pro rata according to each Bank's Commitment, (ii)
neither Swing Loans nor Negotiated Loans shall be Continued or
Converted pursuant to this Agreement, it being understood that
such Loans shall mature (if not earlier) at the end of their
respective Interest Periods, and (iii) no Loans shall be
Converted to Negotiated Loans or Swing Loans under this Section
7.2.
SECTION 8 MAKING AND SHARING OF PAYMENTS AND
PREPAYMENTS; SETOFF; TAXES; RECORDKEEPING.
8.1 Making of Payments.
(a) All payments of principal of, or interest on, the
Loans, and all payments of commitment fees, shall be made by the
Company to the Applicable Agent in immediately available Dollars
for the account of the Banks or the holders of the applicable
Loans, as the case may be; provided, that (i) the principal of
and accrued interest on each Swing Loan shall be payable directly
to the Swing Loan Bank pursuant to Section 3.4, and (ii) accrued
interest on each Negotiated Loan shall be payable directly to the
Bank that made such Negotiated Loan pursuant to Section 4.4. All
such payments shall be made (or initiated, in the case of
payments being made by Fedwire) to the Applicable Agent or
applicable Bank, as the case may be, at its respective office
shown below its signature hereto (or at such other office as may
be designated from time to time by the Applicable Agent or such
Bank by notice to the other parties), not later than 12:00 noon,
Chicago time, on the date due; and funds received after that hour
shall be deemed to have been received by the Applicable Agent or
applicable Bank, as the case may be, on the next following
Business Day. Notwithstanding the foregoing, all payments under
Section 9 shall be made by the Company directly to the Persons
entitled thereto.
(b) Voluntary Loan Prepayments. The Company may
voluntarily prepay Loans from time to time in whole or in part,
provided that (a) the Company shall give the Administrative Agent
(which shall promptly advise each Bank) not less than three (3)
Business Days' (in the case of Eurodollar Loans) or one (1)
Business Day's (in the case of Base Rate Loans) prior notice
thereof, specifying the Loans to be prepaid and the date and
amount of prepayment, (b) Negotiated Loans may be prepaid only in
accordance with the terms of the accepted Negotiated Loan
Confirmation related thereto or with the consent of the Bank
making such Negotiated Loan, (c) any prepayment of any Loan shall
include accrued interest on the principal amount being paid to
the date of prepayment, (d) any prepayment of a Fixed Rate Loan
shall be subject to the provisions of Section 9.5, and (e) Loans
in the same Group shall be prepaid on a pro rata basis among the
Banks based upon their respective Percentage of such Group.
(c) Mandatory Loan Prepayments. The Company shall
prepay Loans pursuant to the provisions of Section 2.7(d).
8.2 Sharing of Payments.
(a) Reallocation. Promptly upon the giving of any
Payment Sharing Notice, the Banks shall purchase and sell among
themselves (without recourse) such participations in the
Revolving Loans and Swing Loans so that after giving effect
thereto with respect to each Bank:
(A) the ratio of (i) the aggregate principal
amount of its then outstanding Loans other than
Negotiated Loans to (ii) the aggregate principal
amount of all then outstanding Loans other than
Negotiated Loans
shall equal
(B) the ratio of (i) the amount, if any, by which
such Bank's Commitment exceeds the aggregate
principal amount of the Negotiated Loans of such
Bank then outstanding (such Bank's "Adjusted
Commitment") to (ii) the aggregate of all Adjusted
Commitments of all Banks,
all in such manner as may be determined by the Administrative
Agent.
(b) Proration of Payments. Whenever (i) any payment
received by either the Administrative Agent or the Negotiated
Loan Agent to be distributed to the Banks in connection with the
Loans or otherwise in connection herewith is insufficient to pay
in full any amounts then due and payable to the Banks in
connection with the Loans, and/or (ii) after receipt by either
the Administrative Agent or the Negotiated Loan Agent of a
Payment Sharing Notice, then any payments (if any) received (and
not theretofore distributed) by the Negotiated Loan Agent with
respect to Negotiated Loans shall be paid over to the
Administrative Agent and all payments received by the
Administrative Agent (whether from the Negotiated Loan Agent or
the Company) shall be distributed to the Banks by the
Administrative Agent in the following order: first, to the
payment of fees and expenses due and payable to the Agents under
or in connection with this Agreement; second, to the payment of
all fees, expenses and other amounts payable under Sections 6,
15.5 and 15.6, ratably among the Banks in accordance with the
aggregate amount of such payments owed to each Bank; third, to
the payment of interest then due and payable on the Loans,
ratably among the Banks in accordance with the aggregate amount
of interest owed to each Bank; fourth, to the payment of the
principal amount of the Loans, ratably among the Banks in
accordance with the aggregate principal amount owed to each Bank;
and fifth, to the payment of all remaining Liabilities (if any)
under this Agreement, ratably among the Banks and the Agents
according to the aggregate amount of such Liabilities owing to
each Bank and each Agent.
(c) Sharing. If any Bank, other holder of a Loan, or
any Participant or Assignee shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of
offset or otherwise) on account of principal of, interest on or
fees or other amounts hereunder in excess of the share of
payments and other recoveries (exclusive of payments or
recoveries under Sections 8.4, 9 and 15.4(e) and exclusive of
payments to a Bank on the Maturity Date of such Bank by reason of
the failure of such Bank to extend its Commitment pursuant to
Section 2.7) such Bank or other Person would have received if
such payment or recovery had been in accordance with Sections
8.2(a) and (b), such Bank or other Person shall purchase from the
other Banks or Persons, in a manner to be specified by the
Administrative Agent, such participations in the Loans, as the
case may be, held by them as shall be necessary to cause such
purchasing Bank or other Person to share the excess payment or
other recovery ratably with each of them in accordance with
Sections 8.2(a) and (b), as applicable; provided, however, that
if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Bank or Person, the
purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.
8.3 Setoff. The Company agrees that each Agent, each
Bank (with respect to its Loans and with respect to any
participations it purchases pursuant to Sections 3.6 and 8.2,
with the same effect as if the amount of such participating
interest were owing directly to such Bank) and each holder of a
Note shall have all rights of setoff and bankers' lien provided
by applicable law and, in addition thereto, the Company agrees
that at any time (i) any amount owing by the Company under this
Agreement or any Note is then due, directly or indirectly, to any
Agent, any Bank or any such holder, or (ii) any Event of Default
shall have occurred and be continuing, each Agent, each Bank and
each such holder may apply to the payment of such amount any and
all balances, credits, deposits, accounts or moneys of the
Company then or thereafter with such Agent, such Bank or such
holder, it being understood that the aggregate amounts set off
shall at no time exceed the Liabilities.
8.4 Taxes.
(a) All payments made by the Company to any Agent or
any Bank under or in connection with this Agreement and the Notes
shall be made without any setoff or counterclaim, and free and
clear of and without deduction or withholding for or on account
of any present or future Taxes now or hereafter imposed by any
governmental or other authority, except to the extent that such
deduction or withholding is compelled by law. As used herein,
the term "Taxes" shall include all income, excise and other taxes
of whatever nature (other than taxes generally assessed on the
overall net income of any Agent or any Bank, as the case may be,
by the government or other authority of the country in which such
Agent or such Bank is incorporated or in which such Bank's
Funding Office or the office through which such Agent is acting
is located provided that taxes so assessed on any additional
amounts payable hereunder shall constitute "Taxes") as well as
all levies, imposts, duties, charges or fees of whatever nature.
If the Company is compelled by law to make any such deductions or
withholdings it will:
(i) pay to the relevant authorities the full
amount required to be so withheld or deducted;
(ii) (except to the extent that such deduction or
withholding results from the breach, by the recipient
of a payment, of its agreement, if any, contained in
Section 8.4(b) or would not be required if such
recipient's representation or warranty contained in
Section 8.4(b), if any, were true) pay such additional
amounts (including, without limitation, any penalties,
interest or expenses) as may be necessary in order that
the net amount received by each Agent and each Bank
after such deductions or withholdings (including any
required deduction or withholding on such additional
amounts) shall equal the amount such payee would have
received had no such deductions or withholdings been
made; and
(iii) promptly forward to the Applicable Agent
(for delivery to such payee) an official receipt or
other documentation satisfactory to the Applicable
Agent and such payee evidencing such payment to such
authorities.
Moreover, if any Taxes are directly asserted against
any Agent or any Bank, such payee may pay such Taxes and the
Company (except to the extent that such Taxes result from the
breach, by such payee, of its agreement contained in Section
8.4(b), if any, or would not be asserted if such payee's
representation or warranty contained in Section 8.4(b), if any,
were true) promptly shall reimburse the payee for such Taxes and
shall pay such additional amount (including, without limitation,
any penalties, interest or expenses in connection therewith) as
may be necessary in order that the net amount received by such
payee after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such payee would
have received had no such Taxes been asserted. For purposes of
this Section 8.4, a distribution hereunder by any Agent to or for
the account of any Bank shall be deemed to be a payment by the
Company. The Company's agreement under this Section 8.4 shall
survive repayment of the Liabilities, cancellation of the Notes
and/or any termination of this Agreement.
(b) In consideration of, and as a condition to, the
Company's undertakings in Section 8.4(a), each Bank which is a
Non-United States Person agrees (to the extent it is permitted to
do so under the laws and any applicable double taxation treaty of
the jurisdiction of its incorporation and the jurisdiction in
which its Funding Office is located) to execute and deliver to
the Administrative Agent for delivery to the Company, before the
first scheduled payment date hereunder in each calendar year,
either (i) two United States Internal Revenue Service Forms 1001
or (ii) two United States Internal Revenue Service Forms 4224
together with two United States Internal Revenue Service Forms
W-9, or any successor forms, as appropriate, properly completed
and claiming complete or partial, as the case may be, exemption
from withholding and deduction of United States Federal Taxes.
Each Bank which is a Non-United States Person represents and
warrants to the Company that, at the Effective Date, (x) its
Eurodollar Loan and Base Rate Loan Funding Offices are entitled
to receive payments of interest hereunder without deduction or
withholding for or on account of any Taxes imposed by the United
States or any political subdivision thereof and (y) it is
permitted to take the actions described in the preceding sentence
under the laws and any applicable double taxation treaties of the
jurisdictions specified in the preceding sentence.
(c) If at any time any Bank by reason of payment by
the Company of any Taxes determines in its sole discretion that
it has obtained a net credit against, or return or reduction of,
any tax (other than the tax to which the payment by the Company
relates) payable by it which it would not have enjoyed but for
such payment ("Tax Benefit"), such Bank shall thereupon pay to
the Company the amount which such Bank shall certify to be the
amount that, after payment, will leave such Bank in the same
economic position it would have been in had it received no such
Tax Benefit ("Equalization Amount"); provided, however, that (i)
if such Bank shall subsequently determine that it has lost the
benefit of all or a portion of such Tax Benefit, the Company
shall promptly remit to such Bank the amount certified by such
Bank to be the amount necessary to restore such Bank to the
position it would have been in if no payment had been made
pursuant to this Section 8.4(c), (ii) if such Bank shall be
prevented by applicable law from paying the Company all or any
portion of the Equalization Amount owing the Company, such
payment need not be made, (iii) such Bank shall be under no
obligation to utilize any Taxes either as credits or deductions,
(iv) the Company shall not be entitled to require such Bank to
supply it with details of its tax position and (v) nothing
contained herein shall interfere with the right of any Bank to
arrange its tax affairs as it sees fit. A certificate submitted
by a Bank pursuant to this Section 8.4(c) shall be conclusive, in
the absence of manifest error.
8.5 Recordkeeping.
(a) The Company. The Company shall maintain a
register (the "Company Register") in which it shall (i) record on
a daily basis all Loans made by each Bank (including each Group
and each Type of Loan) to the Company pursuant to this Agreement
and all payments of the principal amount thereof, and (ii)
calculate on a daily basis the outstanding principal amount of
each Loan. At any time the Company becomes aware of the failure
of any Loan or requested Loan to be within the limits specified
in Section 2.2, 3.2 or 4.2, it shall notify the Administrative
Agent, the Negotiated Loan Agent and the Banks of such failure.
On the last day of each week, the Company shall furnish to the
Administrative Agent and the Negotiated Loan Agent a copy of the
Company Register with respect to such week. Upon request of any
Agent or any Bank, the Company shall advise the requesting party
of the information contained in such Company Register or, if so
requested, furnish a copy of the Company Register as it exists
from time to time.
(b) The Administrative Agent. The Administrative
Agent shall maintain a register ("Master Register") in which it
shall (i) calculate each Bank's Percentage of each Group of
Revolving Loans, (ii) record on a daily basis all Loans made by
each Bank (including each Group and each Type of Loan) to the
Company pursuant to this Agreement and all payments of the
principal amount thereof, (iii) calculate on a daily basis the
outstanding principal amount of each Loan, (iv) calculate at the
end of each Interest Period for each Loan (except the Negotiated
Loans) the interest accrued for such Interest Period and (v) upon
the giving of a Payment Sharing Notice, make the calculations
required for the reallocation, proration and sharing provided for
in Section 8.2. The Master Register shall be rebuttable
presumptive evidence of the Loans and payments so recorded and
principal amount and interest so calculated. At any time the
Administrative Agent becomes aware of the failure of any Loan or
requested Loan to be within the limits specified in Section 2.2,
3.2 or 4.2 or to satisfy the conditions of Section 12, it shall
notify the Company, the Negotiated Loan Agent and the Banks of
such failure. Within ten (10) Business Days of the last day of
each Fiscal Quarter, the Administrative Agent shall furnish to
the Company and each Bank a copy of the Master Register with
respect to such Fiscal Quarter. Upon request of the Company or
any Bank, the Administrative Agent shall advise the requesting
party of the information contained in such Master Register or, if
so requested, furnish a copy of the Master Register as it exists
from time to time.
(c) Negotiated Loan Agent. The Negotiated Loan Agent
shall maintain a register ("Negotiated Loan Register") in which
it shall (i) record on a daily basis all Negotiated Loans made by
each Bank to the Company pursuant to this Agreement and all
payments of the principal amount thereof, and (ii) calculate on a
daily basis the outstanding principal amount of each Negotiated
Loan. The Negotiated Loan Register shall be rebuttable
presumptive evidence of the Negotiated Loans and payments so
recorded and principal amount so calculated. At any time the
Negotiated Loan Agent becomes aware of the failure of any
Negotiated Loan or requested Negotiated Loan to be within the
limit specified in Section 4.2, it shall notify the Company, the
Administrative Agent and the Banks of such failure. Within five
(5) Business Days of the last day of each Fiscal Quarter, the
Negotiated Loan Agent shall furnish to the Company and the
Administrative Agent a copy of the Negotiated Loan Register with
respect to such Fiscal Quarter. Upon request of the Company or
any Bank, the Negotiated Loan Agent shall advise the requesting
party of the information contained in such Negotiated Loan
Register or, if so requested, furnish a copy of the Negotiated
Loan Register as it exists from time to time.
(d) Each Bank. All Loans made by each Bank to the
Company pursuant to this Agreement and all payments of the
principal and interest thereon shall be evidenced by such Bank in
its books and records or, at such Bank's option, on the schedule
attached to its respective Note which evidences such Loans, which
books and records or schedule shall be rebuttable presumptive
evidence of the principal and interest owing and unpaid on such
Note.
information in the Company Register, the Master Register, the
Negotiated Loan Register, any books or records or any schedule to
any Note, or any error in so recording any such information shall
not limit or otherwise affect the Company's obligations hereunder
or under any Note to repay the principal amount of any Loan
together with all interest accruing thereon.
(f) Conflicts. To the extent that at any time any
Bank or Agent or the Company is aware of any conflict between or
among the Company Register, the Master Register, the Negotiated
Loan Register and the records of any other party to this
Agreement, such party shall immediately advise each of the other
parties to this Agreement and the affected parties shall use
their best efforts to resolve such conflict.
SECTION 9 CHANGE OF CIRCUMSTANCES.
9.1 Reserve and Capital Adequacy Costs.
(a) If Regulation D shall require reserves actually to
be maintained in connection with any Eurodollar Loan or any
Eurocurrency liabilities with respect thereto of any Bank,
regardless of whether such Eurodollar Loan is then outstanding,
such Bank may require the Company to pay (and the Company agrees
to pay) additional interest on such Eurodollar Loan at a rate per
annum equal to the difference between the Eurodollar Rate
(Reserve Adjusted) and the Eurodollar Rate for such Eurodollar
Loan's Interest Period. Any Bank wishing to require such payment
with respect to any such Eurodollar Loan or any Eurocurrency
liabilities with respect thereto shall give notice thereof at
least three (3) Business Days prior to the last day of such
Eurodollar Loan's Interest Period if such Eurodollar Loan is then
outstanding or at least one (1) Business Day prior to the
commencement of such Interest Period if such Eurodollar Loan is
not then outstanding. On the last day of each Interest Period
relating to each such Eurodollar Loan of such Bank, the Company
shall pay directly to such Bank such additional interest. Once
given, each such notice by a Bank shall be deemed automatically
to continue in effect and apply to all of such Bank's Eurodollar
Loans until such Bank revokes such notice. At such time, if any,
as such Bank shall not be required so to maintain reserves, such
Bank agrees so to notify the Company.
(b) If a Bank reasonably determines that the amount of
capital required or expected to be maintained by such Bank, any
Funding Office of such Bank or any corporation controlling such
Bank attributable to this Agreement, the Loans or its obligation
to make Loans hereunder is increased as a result of a Change (as
hereinafter defined), then, within 15 days of demand by such Bank
(with a copy of such demand to the Applicable Agents), the
Company shall pay such Bank the amount which such Bank determines
is necessary to compensate it for any reduction in the rate of
return on capital to an amount below that which such Bank, such
Funding Office or such corporation could have achieved but for
such Change and is attributable to this Agreement, the Loans or
its obligation to make Loans hereunder. "Change" means (i) any
change after the Effective Date in the Risk-Based Capital
Guidelines (as hereinafter defined) or (ii) any adoption of or
change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive
(whether or not having the force of law) after the Effective Date
which affects the amount of capital required or expected to be
maintained by any Bank or any Funding Office or any corporation
controlling any Bank or (iii) 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 (iv) compliance by any Bank (or any
Funding Office or corporation of any Bank) with any request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines
in effect in the United States on the Effective Date, including
transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices entitled
"International Convergence of Capital Measurements and Capital
Standards," including transition rules, and any amendments to
such regulations adopted prior to the Effective Date.
9.2 Increased Costs. If (i) Regulation D, or (ii)
after the Effective Date, the adoption of, 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 any Funding Office of such Bank) with any request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, whether or not
having the force of law,
(a) shall subject any Bank (or any Funding Office
of such Bank) to any tax, duty or other charge with
respect to its Fixed Rate Loans, its Notes, or its
obligation to make Fixed Rate Loans, or shall change
the basis of taxation of payments to any Bank (or any
Funding Office of such Bank) of the principal of or
interest on its Fixed Rate Loans owed to it or any
other amounts due under this Agreement in respect of
its Fixed Rate Loans, its Notes, or its obligation to
make Fixed Rate Loans (except for changes in the rate
of tax on the overall net income of such Bank or its
Funding Office imposed by the government or other
authority of the country in which such Bank is
incorporated or in which such Bank's Funding Office is
located); or
(b) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve
imposed by the Board of Governors of the Federal
Reserve System, but excluding any reserve included in
the determination of interest rates pursuant to
Section 6), special deposit, capital adequacy, minimum
capital, capital ratio, deposit insurance or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Bank (or any
Funding Office of such Bank); or
(c) shall impose, modify or deem applicable any
capital adequacy or similar requirement on any Bank; or
(d) shall impose on any Bank (or any Funding
Office of such Bank) any other condition affecting its
Fixed Rate Loans or its Notes or its obligation to make
or maintain Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to
(or in the case of Regulation D, to impose an additional cost on)
such Bank (or any Funding Office of such Bank) of making or
maintaining any Fixed Rate Loan, or to reduce the amount of any
sum received or receivable by such Bank (or such Bank's Funding
Office) under this Agreement or under its Notes with respect
thereto, or to reduce the rate of return on such Bank's capital
to a level below that which such Bank could have achieved but for
such adoption or compliance (taking into consideration such
Bank's policies with respect to capital adequacy) by an amount
which such Bank determines to be material, then within 10 days
after demand by such Bank (which demand shall be accompanied by a
statement setting forth the basis of such demand), the Company
shall pay directly to such Bank such additional amount or amounts
as will compensate such Bank for such increased cost or such
reduction.
Each Bank promptly shall notify the Company and the
Administrative Agent of any event of which it has knowledge,
occurring after the Effective Date, which will entitle such Bank
to compensation pursuant to this Section 9.2 and will designate a
different Funding Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in
such Bank's sole judgment, be otherwise disadvantageous to such
Bank.
9.3 Basis for Determining Interest Rate Inadequate or
Unfair. If with respect to any Interest Period:
(a) the Reference Banks advise the Administrative
Agent that deposits in Dollars (in the applicable
amounts) are not being offered by the Reference Banks
in the relevant market for such Interest Period, or the
Administrative Agent otherwise determines (which
determination shall be binding and conclusive on all
parties) that, by reason of circumstances affecting the
London interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining the
applicable Eurodollar Rate; or
(b) the Required Banks (or any Bank scheduled to
make a Negotiated Loan) advise the Administrative Agent
or the Negotiated Loan Agent, as the case may be,
that, as determined by the Administrative Agent or such
Bank, the Eurodollar Rate, in the case of Eurodollar
Loans, or the negotiated rate, in the case of a
Negotiated Loan, will not adequately and fairly reflect
the cost to the Required Banks (or such Bank) of
maintaining or funding Eurodollar Loans or Negotiated
Loans for such Interest Period, or that the making or
funding of Eurodollar Loans or Negotiated Loans has
become impracticable as a result of an event occurring
after the Effective Date which in such Required Banks'
(or such Bank's) opinion materially affects such
Eurodollar Loans or Negotiated Loans,
then so long as such circumstances shall continue: (i) the
Administrative Agent promptly shall notify the Company and the
Banks thereof, (ii) in the case of Eurodollar Loans, no Bank
shall be under any obligation to make Eurodollar Loans or to
Continue any Loan as, or Convert any Loan to, a Eurodollar Loan,
and (iii) in the case of Negotiated Loans, such Bank shall be
under no obligation to make any Negotiated Loan, irrespective of
any previous acceptance of any Negotiated Loan Confirmation.
9.4 Changes in Law Rendering Certain Loans Unlawful.
In the event that any change in (including the adoption of any
new) applicable laws or regulations, or in the interpretation of
applicable laws or regulations by any governmental or other
regulatory body charged with the interpretation or administration
thereof, would, in any Bank's opinion, make it unlawful for such
Bank to make, maintain or fund Fixed Rate Loans, then (a) such
Bank shall promptly notify each of the other parties hereto, (b)
all Banks' obligations (if any) to make any Fixed Rate Loan made
unlawful for such Bank shall, upon the effectiveness of such
event, be suspended for the duration of such unlawfulness, and
(c) on the last day of the then current Interest Period for each
such Fixed Rate Loan (or, in any event, if such Bank so requests,
on such earlier date as may be required by the relevant law,
regulation or interpretation), such Fixed Rate Loan shall be
repaid in full, together with accrued interest and any amounts
payable under Section 9.5.
9.5 Funding Losses. The Company hereby agrees that
upon demand by any Bank (which demand shall be accompanied by a
statement setting forth the basis for the calculations of the
amount being claimed) the Company will indemnify such Bank
against any net loss or expense which such Bank may sustain or
incur (including, without limitation, any net loss or expense
incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Bank to fund or maintain Fixed
Rate Loans), as reasonably determined by such Bank, as a result
of (a) any payment or mandatory or voluntary prepayment
(including, without limitation, any payment resulting from an
acceleration upon the occurrence of any Event of Default or
Change of Control) of any Fixed Rate Loan of such Bank on a date
other than the last day of such Loan's Interest Period, (b) any
Conversion of any Eurodollar Loan on a date other than the last
day of such Loan's Interest Period, or (c) any failure of the
Company to borrow, Continue or Convert any Loans on the
originally scheduled date specified therefor pursuant to this
Agreement (including, without limitation, any failure to borrow
resulting from any failure to satisfy the conditions precedent to
such borrowing). For this purpose, all notices to the
Administrative Agent or the Negotiated Loan Agent pursuant to
this Agreement shall be deemed to be irrevocable.
9.6 Discretion of Banks as to Manner of Funding.
(a) Notwithstanding any other provision of this
Agreement to the contrary, each Bank shall be entitled to fund
and maintain its funding of all or any part of its Loans in any
manner it sees fit; it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be
made as if such Bank had actually funded and maintained each
Fixed Rate Loan during the Interest Period for such Loan through
the purchase of deposits having a maturity (and in the case of
Eurodollar Loans, bearing interest at the Eurodollar Rate)
corresponding to such Interest Period.
(b) The Company shall not be obligated under this
Agreement to make any greater payment to any Bank which changes
any Funding Office than such Bank would have been entitled to
receive if such Funding Office had not been changed, unless such
Funding Office was changed (i) with the Company's prior written
consent, (ii) at the Company's request, (iii) to mitigate or
avoid the suspension of such Bank's obligations or the
requirement of payment of increased costs in the circumstances
contemplated by Section 9.1(a), 9.2, 9.3 or 9.4, or (iv) at a
time when the circumstances giving rise to such greater payment
did not exist.
9.7 Conclusiveness of Statements; Survival of
Provisions. Determinations and statements of any Bank pursuant
to Sections 9.1 through 9.6 shall be conclusive absent manifest
error, and the provisions of Sections 9.1 through 9.6 shall
survive termination of this Agreement and payment of the Notes.
9.8 Negotiated Loans. The provisions of Sections 9.1
through 9.6 shall not apply to any Negotiated Loan to the extent
that the related Negotiated Loan Confirmation expressly so
provides. Notwithstanding the foregoing, the provisions of
Section 9.5 shall apply to any prepayment of Negotiated Loans
pursuant to Section 2.7(d) regardless of the terms of any
Negotiated Loan Confirmation.
SECTION 10 REPRESENTATIONS.
To induce the Banks to enter into this Agreement and to
make Loans hereunder, the Company hereby makes the following
representations and warranties to the Agents and the Banks:
10.1 Organization, etc. The Company is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Illinois; each Subsidiary is a corporation
duly organized, validly existing and in good standing under the
laws of the state of its respective incorporation; and each of
the Company and each Subsidiary is duly qualified and in good
standing as a foreign corporation authorized to do business in
each jurisdiction where, because of the nature of its activities
or properties, such qualification is required and the failure so
to qualify would have a material adverse effect on the business,
credit, operation, financial condition or prospects of the
Company and its Restricted Subsidiaries taken as a whole.
10.2 Authorization; No Conflict. The execution,
delivery and performance of this Agreement and the Notes, and the
borrowings hereunder, (i) are within the Company's corporate
powers, (ii) have been duly authorized by all necessary corporate
action, (iii) do not require any governmental approval which has
not been previously obtained (and each such governmental approval
that has been previously obtained remains effective), (iv) do not
and will not contravene or conflict with any provision of law, or
of any judgment, decree or order, or of the Company's charter or
by-laws, and (v) do not and will not contravene or conflict with,
or cause any Lien to arise under, any provision of any agreement
binding upon the Company, any Subsidiary or any of their
respective properties.
10.3 Validity and Binding Nature. This Agreement is,
and the Notes when duly executed and delivered by the Company
will be, legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their
respective terms, except as such enforcement may be limited by
the application of bankruptcy, moratorium, reorganization or
other laws affecting the rights of creditors generally or by
general principles of equity (whether or not a proceeding is
brought in a court of law or equity).
10.4 Financial Statements.
(a) The Company has furnished to the Banks true and
correct copies of the Company's audited consolidated financial
statements as at January 1, 1994, and its unaudited consolidated
financial statements as at July 2, 1994. Such financial
statements have been prepared in conformity with GAAP (subject to
normal year-end audit adjustments in the case of such unaudited
consolidated financial statements, and subject to the information
set forth in the footnotes to such audited consolidated financial
statements), and fairly present the financial condition of the
Company and its Subsidiaries as at such dates and the results of
their operations for the periods then ended.
(b) Since either of the dates of the financial
statements referred to in Section 10.4(a), there has been no
material adverse change in the business, credit, operations,
financial condition or prospects of the Company and its
Subsidiaries taken as a whole.
10.5 Litigation and Contingent Liabilities. No
Material Litigation is pending or, to the Company's knowledge,
threatened against the Company except as set forth in Schedule II
or as set forth in the 10-K Report of the Parent for the fiscal
year ended January 1, 1994, or the 10-Q Report of the Parent for
the period ended July 2, 1994, all as filed with the SEC. Other
than any liability incident to such Material Litigation, neither
the Company nor its Subsidiaries have any material contingent
liabilities not provided for or disclosed in the financial
statements referred to in Section 10.4.
10.6 Title to Property. The Company and its
Subsidiaries own and hold, with respect to material real
property, good and marketable title, and with respect to other
material property, good and valid title, to their respective
assets and property reflected in the financial statements
referred to in Section 10.4 or acquired since such dates (other
than assets and property sold or disposed of in the ordinary
course of business), free and clear of any Lien except those
referred to in Section 10.7 or permitted under Section 11.2.
10.7 Liens. None of the assets of the Company or any
Subsidiary is subject to any Lien, except Liens shown in the
financial statements referred to in Section 10.4 or in
Schedule III or permitted under Section 11.2.
10.8 Subsidiaries. The Company has no Subsidiaries or
Restricted Subsidiaries, as the case may be, except those listed
in Schedule IV.
10.9 Plans and Welfare Plans. No steps have been
instituted to terminate any Plan, no contribution failure has
occurred with respect to any Plan sufficient to give rise to a
lien under section 302(f) of ERISA, and no Plan has incurred an
"accumulated funding deficiency" within the meaning of section
412 of the Code or Part 3 of Title I of ERISA. To the best of
the Company's knowledge, no condition exists or event or
transaction has occurred in connection with any Plan which is
reasonably likely to have a material adverse effect on the
business or financial condition of the Company and its ERISA
Affiliates taken as a whole. Neither the Company nor any ERISA
Affiliate has any material contingent liability with respect to
any post-retirement benefit under a Welfare Plan, except for
liability for continuation coverage described in Part 6 of
Title I of ERISA, and except as listed on Schedule V.
10.10 Investment Company Act. The Company is neither
an "investment company" nor a company "controlled" by an
"investment company", within the meaning of the Investment
Company Act of 1940, as amended.
10.11 Public Utility Holding Company Act. Neither the
Company nor any Subsidiary is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
10.12 Regulations G, U and X. The Company is not
engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or
carrying Margin Stock. None of the Company, the Parent, any
Affiliate of either of them or any Person acting on their behalf
has taken or will take action to cause the execution, delivery or
performance of this Agreement, the Notes, the making of the Loans
or the use of proceeds of the Loans to violate Regulation G, U or
X of the Board of Governors of the Federal Reserve System.
10.13 Labor Controversies. There are no labor
controversies pending or threatened against the Company or any of
its Subsidiaries which, if adversely determined, would materially
and adversely affect the business, credit, operations, financial
condition or prospects of the Company and its Subsidiaries, taken
as a whole.
10.14 Tax Status.
(a) All tax returns, reports and forms required to be
filed with any domestic or foreign taxing authority in connection
with any activities or assets of the Company or any Subsidiary
have been filed, except where the failure to file any such
return, report or form would not have any material adverse effect
on the business or financial condition of the Company and its
Subsidiaries taken as a whole.
(b) All taxes required to be paid with respect to the
activities or assets of the Company and its Subsidiaries have
been duly paid or provisions deemed appropriate were made by the
Parent and/or the Company and its Subsidiaries, on the books and
records therefor, except such amounts (i) as are contested in
good faith and as to which adequate reserves in accordance with
GAAP were provided by the Company in accordance with the best
estimates of ultimate liability by the entity responsible
therefor or (ii) the non-payment of which would not have a
material adverse effect on the business or financial condition of
the Company and its Subsidiaries taken as a whole.
(c) It is recognized and acknowledged by the Banks
that, from 1976 through June 22, 1988, for federal income tax
purposes the Company and its Subsidiaries were members of the
affiliated group of which Mobil Corporation ("Mobil"), the
Company's ultimate parent corporation during such period, was the
common parent, and the income of the Company and its Subsidiaries
were included in the consolidated federal income tax returns of
Mobil for such period. All filings and payments with respect to
such period have been made directly by Mobil, and all refunds
with respect thereto have been paid directly to Mobil; and the
Company and its Subsidiaries have made and received payments with
respect to such taxes under tax sharing agreements with Mobil
and/or a Subsidiary thereof. Accordingly, all representations
and warranties made in Sections 10.14(a) and 10.14(b) with
respect to federal income taxes as they relate to such period are
qualified to the best of the Company's general knowledge of
Mobil's practices and procedures. To the best of its knowledge,
the Company has made all payments which are now due to Mobil
under such tax sharing agreements.
condition exists which, upon the execution and delivery of this
Agreement or upon the funding of any Loan, will constitute an
Event of Default or Unmatured Event of Default.
10.16 Compliance with Applicable Laws. To the best of
the Company's knowledge, the Company and its Subsidiaries are in
compliance with the requirements of all applicable laws, rules,
regulations and orders of all governmental authorities (Federal,
state, local or foreign, and including, without limitation,
employee benefit, environmental and health and safety laws,
rules, regulations and orders), a breach of which would
materially and adversely affect the business, credit, operations,
financial condition or prospects of the Company and its
Subsidiaries taken as a whole.
10.17 Licenses, etc. To the best of the Company's
knowledge, neither the Company nor any of its Subsidiaries has
failed to obtain any licenses, permits, franchises or other
governmental authorizations necessary to the ownership of its
respective properties or to the conduct of its respective
business, which violation or failure to obtain might materially
and adversely affect the business, credit, operations, financial
condition or prospects of the Company and its Subsidiaries taken
as a whole.
10.18 Purpose. The purpose of the Loans shall be:
(a) to repay loans under the Existing Credit Agreements; (b) for
capital expenditures; and (c) for working capital and other
general corporate purposes of the Company.
SECTION 11 COVENANTS.
From the Effective Date until the expiration or
termination of all of the Banks' Commitments, and thereafter
until payment in full of all Liabilities, the Company agrees
that, unless at any time the Required Banks shall otherwise
expressly consent in writing, it will:
11.1 Reports, Certificates and Other Information.
Furnish or cause to be furnished to each Bank:
(a) Audit Report. Within 105 days after each
Fiscal Year, a copy of an annual audit report of the
Company and its Subsidiaries prepared on a consolidated
basis and in conformity with GAAP duly certified by
independent certified public accountants of recognized
standing selected by the Company, together with a
letter from such accountants as provided in Section
11.1(d) below.
(b) Interim Reports. Within 60 days after each
Fiscal Quarter (except the last Fiscal Quarter in a
Fiscal Year), a copy of the unaudited consolidated
financial statements of the Company and its
Subsidiaries prepared in accordance with GAAP (subject
to normal year end audit adjustments) consisting of at
least a balance sheet as at the close of such Fiscal
Quarter, statements of earnings for such Fiscal Quarter
and for the period from the beginning of such Fiscal
Year to the close of such Fiscal Quarter, and a
statement of changes in cash flow from the beginning of
such Fiscal Year to the close of such Fiscal Quarter.
(c) Officer's Certificate. Contemporaneously
with the furnishing of a copy of each annual audit
report and of each set of quarterly statements provided
for in this Section 11.1, a certificate in the form of
Exhibit I, duly completed, dated the date of such
annual report or such quarterly statements and signed
by an Authorized Officer on behalf of the Company to
the effect that, to the best of such Authorized
Officer's knowledge, no Event of Default or Unmatured
Event of Default has occurred, and is continuing, or,
if there is any such event, describing it and the
steps, if any, being taken with respect thereto, and
containing the computations and other information
provided for therein.
(d) Accountant's Letter. Contemporaneously with
the furnishing of the Company's annual audit report
under Section 11.1(a), a letter from the Company's
certified public accountants addressed to each Agent
and each Bank (i) stating that such accountants have
not become aware of any Event of Default or Unmatured
Event of Default pertaining to accounting matters (or,
if there is any such event, describing it and the
steps, if any, being taken with respect thereto), (ii)
stating that such accountants have been informed that a
primary intent of the Company was for the professional
services such accountants provided to the Company in
preparing the Company's audit report to benefit or
influence the Agents and the Banks, and identifying
each Agent and each Bank as a party that the Company
has indicated intends to rely on such professional
services provided to the Company by such accountants
and (iii) containing a computation of the financial
tests in Sections 11.3, 11.4 and 11.5.
(e) Reports to SEC and to Shareholders. Promptly
within 15 days of the filing or making thereof, copies
of each filing and report made by the Parent, the
Company or any Subsidiary with or to the SEC or any
other securities exchange, and, if the Company shall
have registered under the Securities Exchange Act of
1934, as amended, as to any of the Company's equity
securities, copies of each communication from the
Company to shareholders generally.
(f) Notice of Default. Forthwith upon learning
of the occurrence of an Event of Default or Unmatured
Event of Default, written notice thereof describing the
same and the steps (if any) being taken by the Company
and its Subsidiaries with respect thereto.
(g) Notice of Certain Litigation. Written notice of
the institution of any Litigation or the occurrence of any
development with respect to any Litigation, together with a
description thereof and the steps being taken by the Company
and its Subsidiaries with respect thereto, all to such
extent and at such time as the Company would be required to
make such disclosure if the Company were a public reporting
company under the Securities Exchange Act of 1934, as
amended (it being understood that to the extent such
disclosures are contained in the reports filed by the
Company's Parent with the SEC, then the disclosure hereunder
required to be made by the Company to the Banks may be made
by furnishing to the Banks a copy of such reports of the
Parent as filed with the SEC).
(h) Notice of Change of Control. Forthwith upon
learning of the occurrence of any Change of Control, written
notice thereof, describing the same and the steps (if any)
being taken by the Company and its Subsidiaries with respect
thereto.
(i) Amendments. Promptly upon any amendment or
modification, whether or not material, to the MWCC
Receivables Purchase Agreement, a copy thereof
certified as true and correct by an Authorized Officer
on behalf of the Company.
(j) Other Information. From time to time such
other information concerning the Company and its
Subsidiaries as any Bank or any Agent may reasonably
request.
11.2 Liens. Not, and not permit any Restricted
Subsidiary to, create, incur, assume or permit to exist any Lien
with respect to any assets now owned or hereafter acquired,
except the following (each, a "Permitted Lien"):
(i) Liens arising in connection with a financing
or refinancing of every description (including, without
limitation, sale-leaseback transactions and secured
borrowings) of any real estate (including leasehold
interests) or tangible fixed assets acquired or
constructed by the Company or a Restricted Subsidiary
after January 1, 1994, and attaching only to the
property so acquired or constructed and the rights and
documents related thereto,
(ii) Liens existing on the Effective Date as set
forth on Schedule III or shown in the financial
statements referred to in Section 10.4,
(iii) Liens on customer receivables and proceeds
thereof,
(iv) Liens for current taxes, assessments or
other charges not delinquent or for taxes, assessments
or other charges being contested in good faith and by
appropriate proceedings and with respect to which the
Company has provided for and is maintaining adequate
reserves in accordance with GAAP,
(v) any Lien in the nature of an easement, grant,
license, permit, reservation, agreement, undertaking,
restriction or condition with respect to cables, pipes,
wires, telephone or telegraph poles, sewers, railroad
tracks or other public utility purposes or roads, walks
or other rights-of-way or for joint or common use of
real properties or facilities, including any reciprocal
construction, operating and easement agreement, or any
other similar encumbrance, including, but not limited
to, any lease, sublease, easement, grant or license to
use or restriction on the right to use, which in any
case in the opinion of the Company does not materially
impair the usefulness of the property or the asset in
question in the conduct of the business and operations
of the Company or the Restricted Subsidiary which owns
such property or asset,
(vi) Liens of carriers, warehousemen, mechanics,
materialmen, vendors, landlords and similar Liens
incurred in the ordinary course of business for sums
not due or sums being contested in good faith and by
appropriate proceedings,
(vii) rights of lessees, sublessees or assignees
of the Company or a Restricted Subsidiary with respect
to assets of the Company or such Restricted Subsidiary
so leased, sublet or assigned,
(viii) Liens on goods acquired pursuant to the
issuance of letters of credit, provided that such Liens
shall only secure the reimbursement obligations or
other amounts to be paid under the agreement with the
issuer or an Affiliate of the issuer of such letters of
credit,
(ix) Liens on assets of a Restricted Subsidiary
existing at the time such Subsidiary becomes a
Restricted Subsidiary,
(x) Liens in favor of the Company or any
Restricted Subsidiary,
(xi) Liens arising in the ordinary course of
business for sums not due or sums being contested in
good faith and by appropriate proceedings, but not
involving any deposits or advances or indebtedness for
borrowed money or the deferred purchase price of
property or services,
(xii) Liens in favor of the Agents (or any of
them) or the Banks in their capacity as agents or
lenders under this Agreement or the Long Term Credit
Agreement, provided that such Liens shall ratably
secure all loans under this Agreement and the Long Term
Credit Agreement,
(xiii) Liens arising under capital leases and
attaching only to the property leased thereunder,
(xiv) Liens granted to landlords or to any
landlord's mortgagee in the Company's or any Restricted
Subsidiary's sublessor's interest in a sublease to
secure a consent to such sublease or an agreement to
execute a non-disturbance agreement in favor of the
sublessee thereunder from such landlord or landlord's
mortgagee,
(xv) any Lien arising out of a judgment or award
against the Company or any Restricted Subsidiary with
respect to which the Company or such Restricted
Subsidiary shall in good faith be prosecuting an appeal
or proceeding for review or any Lien incurred by the
Company or any Restricted Subsidiary for the purpose of
obtaining a stay or discharge in the course of any
legal proceeding to which the Company or such
Restricted Subsidiary is a party,
(xvi) any Lien to enable the Company or any
Restricted Subsidiary to exercise any privilege or
license, to secure the performance of any bid, tender,
contract or lease to which the Company or such
Restricted Subsidiary is a party, to secure any public
or statutory obligation of the Company or any
Restricted Subsidiary or to secure any safety, stay or
appeal bond to which the Company or any Restricted
Subsidiary is a party, or any other similar Lien made
in the ordinary course of business,
(xvii) any Lien on the obligation of the Company
or any Restricted Subsidiary under any lease or other
document related to the operation, use or occupancy of
real or personal property, or in any guaranty by the
Company or any Restricted Subsidiary of the obligation
of any person or entity under any lease or other
document related to the operation, use or occupancy of
real or personal property,
(xviii) other non-material Liens incurred in the
ordinary course of business (including those in
connection with obligations to pay workmen's
compensation or unemployment insurance, performance
bonds, security deposits and the like), and
(xix) additional Liens securing Secured
Indebtedness (as defined below), if as a result of the
transaction giving rise to any such Liens (and after
giving effect thereto on a pro forma basis) the
aggregate amount of the (i) Secured Indebtedness of the
Company and its Restricted Subsidiaries and (ii)
(without double-counting) Indebtedness for Borrowed
Money of the Restricted Subsidiaries but only in each
case incurred subsequent to the Effective Date in a
transaction which gave rise to Liens other than
Permitted Liens described in the preceding clauses (i)
through (xviii) inclusive) is less than or equal to 1%
of the total assets of the Company and its Restricted
Subsidiaries as of the end of the last full Fiscal
Quarter preceding such transaction. For purposes
hereof, "Secured Indebtedness" means any Indebtedness
for Borrowed Money or other indebtedness incurred in
connection with the acquisition of property, which
Indebtedness for Borrowed Money or other indebtedness
is secured by a Lien of or upon any property or asset
of the Company or any Restricted Subsidiary.
provided, however, with respect to the preceding clauses (i)
through (xix) inclusive,
(a) neither the Company nor any Restricted Subsidiary
shall permit to exist any Lien securing notes or obligations
payable or owing by the Company pursuant to the MWCC
Receivables Purchase Agreement except (x) to the extent
provided therein or (y) to the extent of clauses (xi) and
(xv), and
(b) none of such Liens shall encumber any inventory of
the Company or its Restricted Subsidiaries or secure trade
debt of the Company or its Restricted Subsidiaries except to
the extent of clauses (ii), (viii), (ix), (x), (xi), (xii),
(xiv), (xv), (xix) and to the extent such Lien is a
possessory Lien which arises by operation of law, clause
(vi); provided that Liens on inventory or securing trade
debt under clause (xix) shall not exceed $5,000,000 or the
amount permitted under clause (xix) whichever is less.
11.3 Minimum Consolidated Shareholder's Equity. Not
permit the Consolidated Shareholder's Equity of the Company as at
the end of each Fiscal Year to be less than the lesser of (i)
$441,000,000 minus the FAS 106 Minimum Equity Factor plus 25% of
Consolidated Net Income for each complete Fiscal Year after the
Company's Fiscal Year ended January 1, 1994 in which there was
such income, and (ii) $800,000,000 minus the FAS 106 Minimum
Equity Factor; provided, however, that if the Ratio of Earnings
to Fixed Charges determined as of the last day of any Fiscal
Quarter shall be less than 1.10:1, then the Company shall not
permit Consolidated Shareholder's Equity at the end of the next
Fiscal Quarter to be less than the lesser of (x) $537,000,000
plus 50% of Consolidated Net Income for each complete Fiscal Year
ended after January 1, 1994 in which there was such income, plus
50% of cumulative Consolidated Net Income for any incomplete
Fiscal Year (to the extent there was such income) through the end
of the most recently completed Fiscal Quarter and (y)
$1,000,000,000.
11.4 Ratio of Debt to Total Capitalization. Not
permit (i) Debt of the Company and its Restricted Subsidiaries to
exceed 60% of Total Capitalization as of the last day of each of
the first three Fiscal Quarters of each Fiscal Year, or (ii) Debt
of the Company and its Restricted Subsidiaries to exceed 50% of
Total Capitalization as of the last day of each Fiscal Year.
11.5 Purchase or Redemption of the Company's
Securities; Dividend Restrictions; Payments to the Parent. Not
(a) declare or pay any dividend or make any distribution on any
capital stock of the Company to its stockholders (other than
dividends or distributions payable in shares of capital stock of
the Company or stock splits), (b) make any loans or advances to
the Parent, (c) purchase or redeem or otherwise acquire or retire
for value any shares of capital stock of the Company, or (d)
permit any Subsidiary to purchase, redeem or otherwise acquire
for value any shares of capital stock of the Company (each such
payment described in any of the foregoing clauses (a), (b), (c)
and (d) a "Restricted Payment"), if, upon giving effect thereto,
the sum of such dividends, distributions, purchases, redemptions
and other acquisitions and retirements (other than dividends,
distributions, purchases, redemptions and other acquisitions or
retirements of Debt-Like Preferred Stock of the Company), paid or
made subsequent to January 1, 1994, would exceed the aggregate
of:
(i) $63,000,000; plus
(ii) 50% (or minus 100% in case of any deficit)
of Consolidated Net Income for the period,
taken as one accounting period, from and
including January 2, 1994 to the end of the
most recent full Fiscal Quarter; plus
(iii) any repayment by the Parent of any loan or
advance made by the Company to the Parent
which repayment is received after January 1,
1994; plus
(iv) any capital contributions received by the
Company after January 1, 1994; plus
(v) the net proceeds to the Company (in cash or,
if the consideration is other then cash, the
fair value thereof as determined by the
Board of Directors of the Company) of the
issue or sale after January 1, 1994 of
capital stock, including treasury stock but
excluding Debt-Like Preferred Stock, of the
Company; plus
(vi) an amount equal to the net proceeds to the
Company (in cash or, if the consideration is
other than cash, the fair value thereof as
determined by the Board of Directors of the
Company) from the issue or sale at any time
of any indebtedness of the Company or a
Subsidiary which, after January 1, 1994, is
converted into shares of capital stock (but
excluding Debt-Like Preferred Stock) of the
Company or the Parent; plus
(vii) an amount equal to the FAS 106 Restricted
Payment Factor;
provided, however, that:
(x) the Company shall not make any such Restricted
Payment if before or after giving effect thereto an Event of
Default or Unmatured Event of Default shall exist;
(y) notwithstanding the foregoing, so long as no Event
of Default or Unmatured Event of Default shall exist before
or after giving effect thereto, the Company may (i) declare
or pay any dividend or make any distribution within 60 days
after the date of its declaration, if on such date such
declaration did not violate the provisions of Section
11.5(a), and (ii) pay amounts to the Parent to permit the
Parent to pay its corporate and business expenses in an
aggregate amount for all such payments not to exceed
$2,000,000 per Fiscal Year (with any amounts not so used in
a given Fiscal Year carried over and added to the amount
permissible to be paid in the next Fiscal Year); and
(z) notwithstanding the foregoing, the Company may pay
amounts required to be paid pursuant to any tax sharing or
tax allocation arrangements meeting the standards specified
in Schedule VI.
11.6 Mergers, Consolidations, Sales. Not permit any
consolidation of the Company with or merger of the Company into
any other corporation or corporations (whether or not affiliated
with the Company) or successive consolidations in which the
Company or its successor or successors shall be a party or
parties or any sale or conveyance of the property of the Company
as an entirety or substantially as an entirety, to any other
corporation (whether or not affiliated with the Company)
authorized to acquire and operate the same (any such
consolidation, merger, sale or conveyance is referred to herein
as a "Corporate Transaction") unless each of the following
conditions is met:
(i) to the extent that as a result of such
Corporate Transaction, any property of the Company or a
Restricted Subsidiary immediately prior thereto would
be subjected to any Lien of any other party to such
Corporate Transaction, simultaneously with such
Corporate Transaction or prior thereto, effective
provision shall be made for securing (equally and
ratably with any other indebtedness of or guaranteed by
the Company then entitled thereto) the due and punctual
payment of the Liabilities by a prior Lien upon such
asset;
(ii) upon the occurrence of any such Corporate
Transaction all the obligations of the Company under
this Agreement and the Notes shall be expressly assumed
in writing by the corporation formed by such
consolidation, or into which the Company shall have
been merged, or by the corporation which shall have
acquired such property (in each such case, the
"surviving entity"), such assumption to be accompanied
by an opinion of counsel for the surviving entity to
the effect that such assumption has been duly
authorized, executed and delivered by, and is the
legal, valid and binding obligation of, the surviving
entity;
(iii) immediately after giving effect to such
Corporate Transaction and to the retirement of any Debt
to be retired substantially concurrently therewith, no
Event of Default or Unmatured Event of Default shall
have occurred and be continuing, and the Company shall
deliver a certificate signed by an Authorized Officer
to such effect;
(iv) the surviving entity shall be domiciled in
the United States;
(v) after giving effect to such Corporate
Transaction and to the retirement of any Debt to be
retired substantially concurrently therewith on a pro
forma basis (calculated using financial information for
each party to such Corporate Transaction from such
party's most recently ended fiscal quarter), the ratio
(expressed as a percent) of Debt to Total
Capitalization for the surviving or successor party
shall not exceed (a) 60% in the case where the most
recently ended fiscal quarter for the Company was one
of the first three Fiscal Quarters of a Fiscal Year or
(b) 50% in the case where the most recently ended
fiscal quarter for the Company was the last Fiscal
Quarter of a Fiscal Year;
(vi) the Company shall have given at least 30
days' prior written notice of such Corporate
Transaction to the Agents and the Banks; and
Transaction, no Change of Control shall exist.
Upon consummation of the Corporate Transaction and the assumption
of the Company's obligations under this Agreement by the
surviving entity, such surviving entity shall succeed to and be
substituted for the Company, with the same effect as if it were
an original party to this Agreement and, in the event of any such
sale or conveyance, the Company shall be released from its
obligations under this Agreement. Except for the merger of any
Restricted Subsidiary into the Company or another Restricted
Subsidiary, the Company shall not permit any Restricted
Subsidiary to be a party to any Corporate Transaction if before
or after giving effect thereto an Event of Default or Unmatured
Event of Default shall exist.
11.7 Compliance with Applicable Laws. Not, and not
permit any of its Subsidiaries to, knowingly violate in any
material respect any of the requirements of all applicable laws,
rules, regulations, and orders of any governmental authority
(Federal, state, local or foreign, and including, without
limitation, employee benefit, environmental, health and safety
laws, rules, regulations and orders); provided, however, that any
material breach by the Company or any of its Subsidiaries of any
employee benefit, environmental, health or safety order, rule or
regulation shall not be deemed a breach of this Section 11.7 so
long as such violation would not be likely to prevent the Company
from performing its obligations under this Agreement and the
Company or such Subsidiary, upon notice of such violation, takes
appropriate action to cure such violation.
11.8 ERISA. (a) Forthwith upon learning of (i) the
incurrence of any material liability of the Company or any ERISA
Affiliate pursuant to Title IV of ERISA in connection with the
termination of any Plan or withdrawal or partial withdrawal from
any Multiemployer Plan, (ii) a failure to satisfy the minimum
funding standards of section 412 of the Code or Part 3 of Title I
of ERISA by any Plan for which the Company or any ERISA Affiliate
is plan administrator (as defined in ERISA), (iii) the receipt of
a notice by any Plan that the PBGC intends to terminate or apply
for the appointment of a trustee to administer the Plan, (iv) the
receipt of a notice of complete or partial withdrawal liability
under Title IV of ERISA from a Multiemployer Plan or a notice
that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, (v) the application for a waiver of the
minimum funding standard under section 412 of the Code, (vi) the
filing of a notice of intent to terminate a Plan under section
4041(c) of ERISA, or (vii) notice of withdrawal from any Plan
pursuant to section 4063 of ERISA, furnish or cause to be
furnished to each Bank written notice thereof.
(b) Not, and not permit any of its Subsidiaries to,
permit (i) any Plan to incur any "accumulated funding deficiency"
(within the meaning of Part 3 of Title I of ERISA or section 412
of the Code) or (ii) any Plan for which the Company or any ERISA
Affiliate is plan administrator (as defined in ERISA) to fail to
satisfy the minimum funding standards of section 412 of the Code
or Part 3 of Title I of ERISA.
11.9 Corporate Existence and Franchises. Except as
otherwise expressly permitted in Section 11.6, maintain in full
force and effect its separate existence and all material rights,
licenses, leases and franchises used in the conduct of its
business.
11.10 Maintenance of Tangible Property. Maintain, and
cause each of its Subsidiaries to maintain, in all material
respects all of the real property, inventory and equipment owned,
leased or used by such entity in good condition and repair, and
prevent any waste or unusual or unreasonable depreciation
thereof.
11.11 Maintenance of Intangible Property. Protect,
preserve and maintain, and cause each of its Subsidiaries to
protect, preserve and maintain, in all material respects all of
its material trademarks and trade names in full force and effect,
by, without limitation, defending against and/or prosecuting at
its own expense any and all suits claiming infringement or
dilution of any thereof or injury to the goodwill associated with
any thereof and by filing any applications and doing any and all
other things which may from time to time be necessary or
advisable for the renewal or registration of each thereof.
11.12 Books, Records and Inspections. Maintain, and
cause each Subsidiary to maintain, complete and accurate books
and records; permit, and cause each Subsidiary to permit,
reasonable access by each Agent and each Bank to the books and
records of the Company and of each Subsidiary during regular
business hours upon two Business Days' prior written notice to
the Company; and permit, and cause each Subsidiary to permit,
each Agent and each Bank to inspect the properties and operations
of the Company and of such Subsidiary during regular business
hours upon two Business Days' prior written notice to the
Company.
11.13 Insurance. Maintain, and cause each Subsidiary
to maintain, such insurance upon its real property, inventory and
equipment (including self-insurance to the extent of, and in a
manner consistent with, the past practices of such entity) to
such extent and against such hazards and liabilities, as is
required by law or customarily maintained by companies similarly
situated.
11.14 Payment of Taxes. Promptly pay, and cause each
Subsidiary to pay, when due all taxes, assessments or other
charges owing by the Company and each Subsidiary except taxes,
assessments and other charges which shall be diligently contested
in good faith by appropriate proceedings and as to which adequate
reserves shall have been set aside in accordance with GAAP.
11.15 Other Agreements. Not (a) enter into any
agreement containing any provision which would be violated or
breached by the performance of its obligations hereunder or under
any instrument or document delivered or to be delivered by it
hereunder or in connection herewith, or (b) permit any Restricted
Subsidiary to enter into any agreement which prohibits in any
material respect such Subsidiary from declaring or paying
dividends or making advances to the Company.
11.16 Regulation U. Not use or permit any proceeds of
the Loans to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing
or carrying Margin Stock.
11.17 Subordinated Debt. With respect to any
Subordinated Debt, not make or effect or permit any Subsidiary to
make or effect any payment, prepayment, redemption, purchase or
defeasance of any such Subordinated Debt if (i) such payment,
prepayment, redemption, purchase or defeasance is prohibited by
the terms of the instrument governing such Subordinated Debt,
(ii) before or after giving effect thereto an Event of Default or
Unmatured Event of Default shall exist, or (iii) immediately
after giving effect thereto and to the substantially concurrent
incurrence or retirement of other Debt and the application of the
proceeds thereof the ratio (expressed as a percent) of Debt of
the Company and its Restricted Subsidiaries to Total
Capitalization exceeds (a) 60% in the case where the most
recently ended Fiscal Quarter was one of the first three Fiscal
Quarters of a Fiscal Year, or (b) 50% in the case where the most
recently ended Fiscal Quarter was the last Fiscal Quarter of a
Fiscal Year.
11.18 Debt-Like Preferred Stock. With respect to any
Debt-Like Preferred Stock, not make any dividend, distribution,
purchase, redemption, acquisition or retirement of any Debt-Like
Preferred Stock if (i) such dividend, distribution, purchase,
redemption, acquisition or retirement is prohibited by the terms
of the instrument governing such Debt-Like Preferred Stock, (ii)
before or after giving effect thereto an Event of Default or
Unmatured Event of Default shall exist, or (iii) immediately
after giving effect thereto and to the substantially concurrent
incurrence or retirement of other Debt and the application of the
proceeds thereof the ratio (expressed as a percent) of Debt of
the Company and its Restricted Subsidiaries to Total
Capitalization exceeds (a) 60% in the case where the most
recently ended Fiscal Quarter was one of the first three Fiscal
Quarters of a Fiscal Year, or (b) 50% in the case where the most
recently ended Fiscal Quarter was the last Fiscal Quarter of a
Fiscal Year.
11.19 Further Assurances. At its sole expense, upon
request of the Administrative Agent, forthwith execute and
deliver, or cause to be executed and delivered to such Agent, in
due form for filing or recording (the Company hereby agreeing to
pay the cost of filing or recording the same in all public
offices deemed necessary by such Agent), such documents, and do
such other acts and things, all as such Agent may from time to
time reasonably request so as to implement the provisions of this
Agreement.
SECTION 12 CONDITIONS. The effectiveness of this
Agreement and each Bank's obligation to make its Loans is subject
to the following conditions:
12.1 Effectiveness of Agreement. This Agreement shall
become effective on such date (the "Effective Date") on which,
unless waived in writing by all of the Banks, each of the
following conditions precedent or concurrent shall be satisfied:
(a) Documents. On or before September 15, 1994,
or such later date as may be agreed to by the Required
Banks, the Documentary Agent shall have received all of
the following, each duly executed and dated the
Effective Date or such other date satisfactory to the
Documentary Agent, in form and substance reasonably
satisfactory to the Documentary Agent and special
counsel to the Banks, and each (except for the Notes,
of which only the originals shall be signed) in
sufficient number of counterparts to provide one for
each Bank:
(i) Credit Agreements. Counterparts of this
Agreement and the Long Term Credit Agreement, whether
on the same or different counterparts, executed by the
Company and all of the Banks (or in the case of any
Bank as to which an executed counterpart shall not have
been so received, telegraphic, telefax, telex or other
written confirmation of execution of a counterpart
hereof by such Bank);
(ii) Notes. One Revolving Note, one
Negotiated Note and one Swing Note of the
Company payable to the order of each Bank;
(iii) Resolutions. Certified copies
of (i) the articles of incorporation and by-
laws of the Company, (ii) resolutions of the
Company's Board of Directors authorizing or
ratifying the execution, delivery,
performance of and borrowings under,
respectively, this Agreement, the Notes, and
any other documents provided for herein or
therein to be executed by the Company and
(iii) all documents evidencing any necessary
corporate action, consents and governmental
approvals (if any) with respect to this
Agreement, the Notes and any other documents
provided for herein or therein to be executed
by the Company;
(iv) Good Standing. Good standing
certificate for the Company issued by the
Secretary of State of Illinois;
(v) Incumbency and Signatures. A
certificate of the Secretary or an Assistant
Secretary of the Company certifying the names
of the officer or officers thereof authorized
to sign this Agreement, the Notes and the
other documents provided for in this
Agreement, together with a sample of the true
signature of each such officer (it being
understood that each Agent and each Bank may
conclusively rely on each such certificate
until formally advised by a like certificate
of any changes therein);
(vi) Opinion of Counsel for the
Company. The opinion of Altheimer & Gray,
counsel for the Company, addressed to the
Agents and the Banks, substantially in the
form of Exhibit J;
(vii) Certificate. A certificate
signed by an Authorized Officer on behalf of
the Company substantially in the form of
Exhibit K to the effect that (i) on the
Effective Date no Event of Default or
Unmatured Event of Default has occurred and
is continuing or shall result from the making
of any Loan on such date, (ii) the Company's
representations and warranties contained in
Sections 10.1 through 10.18 are true and
correct as of the Effective Date with the
same effect as though made on the Effective
Date, and (iii) all of the conditions set
forth in this Section 12.1 have been
satisfied;
(viii) Termination Letter. A letter signed
by an Authorized Officer on behalf of the Company
addressed to each of the agents and the lenders
under the Existing Credit Agreements terminating
as of the Effective Date any and all commitments
of the lenders to make loans thereunder (it being
understood that the Banks hereby waive any
requirement under the Existing Credit Agreements
that the Company give prior notice of the
termination of such commitments); and
(ix) Other. Such other documents as
the Documentary Agent or any Bank may
reasonably request.
(b) Long Term Credit Agreement. The Long Term
Credit Agreement shall have become effective.
Concurrently with the effectiveness of this Agreement, the
Company shall repay in full the principal of and accrued interest
on all loans outstanding and accrued fees under the Existing
Credit Agreements.
12.2 Conditions to Loans. On and after the Effective
Date, each Bank's obligation to make Loans (including the initial
Loan and each subsequent Loan) or for a Continuation or a
Conversion is subject, unless waived in writing by the Required
Banks, to the conditions precedent that:
(a) no Event of Default or Unmatured Event of
Default shall have occurred and be continuing or shall
result from the making of such Loan;
(b) the Company's representations and warranties
contained in Sections 10.1, 10.2, 10.3, 10.4(a), 10.7,
10.10, 10.11, 10.12, 10.15, and 10.18, shall be true
and correct as of the date of such requested Loan,
Continuation or Conversion with the same effect as
though made on the date of such Loan, Continuation or
Conversion; and
(c) such Loan shall not exceed the limits
specified in Section 2.2, 3.2 or 4.2 and no notice of
any such excess shall have been given by the
Administrative Agent.
Each request by the Company for a Loan or for a Continuation or a
Conversion as described in this Section 12.2 shall be deemed to
automatically constitute a representation and warranty by the
Company to the effect that all of the conditions set forth in
this Section 12.2 for the making of such Loan will be fully and
completely satisfied as of the date of, and after giving effect
to, the making of such Loan, Continuation or Conversion.
SECTION 13 EVENTS OF DEFAULT AND THEIR EFFECT.
13.1 Events of Default. Each of the following shall
constitute an Event of Default under this Agreement:
(a) Non-Payment of Notes and Certain Fees.
Default, and continuance thereof for three Business
Days after notice thereof to the Company by any Agent,
any Bank or the holder of any Note, in the payment when
due of (i) any principal of or interest on any Loan or
(ii) any amount payable under Section 6.5, 6.6 or 6.7.
(b) Non-Payment of Certain Other Amounts under
this Agreement. Default, and continuance thereof for
ten Business Days after notice thereof to the Company
by any Agent, any Bank or the holder of any Note, in
the payment when due of any material amount under this
Agreement (and not constituting an Event of Default
under clause (a) above).
(c) Non-Payment of Finance Obligations. Default
in the payment when due (subject to any applicable
grace period), whether by acceleration or otherwise, of
any Finance Obligation of the Company or any Restricted
Subsidiary or default in the performance or observance
of any obligation or condition with respect to any such
Finance Obligation if (i) the effect of such default is
to accelerate the maturity of any such Finance
Obligation or cause any such Finance Obligation to be
prepaid, purchased or redeemed or (ii) the holder or
holders thereof, or any trustee or agent for such
holders, (x) causes such Finance Obligation to become
due and payable prior to its expressed maturity or to
be prepaid, purchased or redeemed or (y) receives any
payment (other than any payment which was scheduled to
be made prior to the occurrence of such default),
guarantee or security or other concession from or on
behalf of Parent, the Company or any Restricted
Subsidiary or (iii) in case such default is a default
in the payment when due, such default has not been
remedied within five Business Days after notice thereof
to the Company by any Agent, any Bank, the holder of
any Note or the holder or holders of such Finance
Obligation or any trustee or agents for such holders;
provided, however, that no such default under this
clause (c) shall constitute an Event of Default unless
the amount of Finance Obligations so affected is at
least $5,000,000.
(d) Bankruptcy, Insolvency, etc. The occurrence
of any of the following events: (i) the Company or any
Restricted Subsidiary becomes insolvent or generally
fails to pay, or admits in writing its inability or
refusal to pay, debts as they become due; or (ii) the
Company or any Restricted Subsidiary applies for,
consents to, or acquiesces in the appointment of a
trustee, receiver or other custodian for the Company or
such Restricted Subsidiary or any property thereof, or
makes a general assignment for the benefit of
creditors; or, (iii) in the absence of such
application, consent or acquiescence, a trustee,
receiver or other custodian is appointed for the
Company or any Restricted Subsidiary or for a
substantial part of the property of any thereof and is
not discharged within 60 days; or (iv) any bankruptcy,
reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or
any dissolution or liquidation proceeding (except the
voluntary dissolution, not under any bankruptcy or
insolvency law, of a Restricted Subsidiary), is
commenced in respect of the Company or any Restricted
Subsidiary, and if such case or proceeding is not
commenced by the Company or such Restricted Subsidiary,
it is consented to or acquiesced in by the Company or
such Restricted Subsidiary or remains for 60 days
undismissed; or (v) the Company or any Restricted
Subsidiary takes any corporate action to authorize, or
in furtherance of, any of the foregoing; provided that
the provisions of this Section 13.1(d) shall not apply
to any Special Restricted Subsidiary to which the
foregoing provisions of Section 13.1(d) would otherwise
apply, which together with all other Special Restricted
Subsidiaries with respect to which an event described
in the foregoing provisions of Section 13.1(d) shall
have occurred, has assets which do not exceed one
percent (1%) of the total assets of the Company and its
Restricted Subsidiaries.
(e) Specified Non-Compliance with this Agreement.
Failure by the Company to comply with or to perform its
obligations under Sections 11.3 through 11.6 of this
Agreement.
(f) Other Non-Compliance with this Agreement.
Failure by the Company to comply with or to perform its
obligations under any provision of this Agreement (and
not constituting an Event of Default under any of the
other provisions of this Section 13.1) and (i)
continuance of such failure for 30 days after notice
thereof to the Company by any Agent, any Bank or the
holder of any Note specifying such failure if such
failure can be cured with diligence within such 30-day
period by the Company or can be cured by the payment of
money, or (ii) continuance of such failure for 60 days
after notice thereof to the Company by an Agent, any
Bank or the holder of any Note specifying such failure
if such failure cannot with diligence be cured within
such 30-day period and cannot be cured by the payment
of money.
(g) Representations and Warranties. Any
representation or warranty made by the Company herein
is breached or contains any statement which is false or
misleading in any material respect, or any schedule,
certificate or other writing furnished by the Company
to any Agent, any Bank or the holder of any Note
pursuant to this Agreement contains any material
statement which is false or misleading in any material
respect on the date as of which the facts therein set
forth are (or are deemed to be) stated or certified.
(h) Stock Ownership. Until such time as under the
provisions of Section 5 a Change of Control can no longer be
deemed to have occurred, Parent or Successor to Parent
(except by reason of a merger of the Company into the
Parent) shall fail to own, directly or indirectly, 100% of
the capital stock (excluding Debt-Like Preferred Stock) of
the Company (or any successor to the Company permitted by
Section 11.6) free and clear of all Liens. "Successor to
Parent" refers to the Person into which the Parent shall
have been merged or in the case of a consolidation involving
the Parent, the Person formed by such consolidation or in
the case of the sale of substantially all the assets of the
Parent, the Person to whom substantially all of the assets
of the Parent shall have been transferred or conveyed;
provided, in each case, voting shares of the capital stock
of, or voting equity interests in, such Person are converted
from or exchanged for Class A Common Stock.
(i) Judgments. Final judgment or judgments
(after the expiration of all times to appeal therefrom)
for the payment of money in excess of $5,000,000 in the
aggregate shall be rendered against Company or any of
its Restricted Subsidiaries and the same shall not be
(i) fully covered by insurance or (ii) vacated, stayed,
bonded, paid or discharged for a period of sixty (60)
days.
(j) MWCC Receivables Purchase Agreement. (i) An
amendment which materially adversely affects the Banks
shall be made to the MWCC Receivables Purchase
Agreement without the prior written consent of the
Required Banks, including, without limitation, any
amendment thereto which secures the Seller Notes (as
defined therein) or which provides for any of such
Seller Notes to be payable on a date earlier than the
date on which such Seller Notes are payable as at the
date of this Agreement, (ii) the MWCC Receivables
Purchase Agreement shall fail to remain in full force
and effect, (iii) any default by the Company under the
MWCC Receivables Purchase Agreement (after the
expiration of any applicable grace period) shall occur
and be continuing which has not been waived by MWCC and
which provides MWCC thereunder with the right to
terminate MWCC's obligation to purchase customer
receivables thereunder from the Company, or (iv) the
Company or MWCC shall give notice of termination or
take any action to terminate thereunder (other than the
notice to terminate at the expiration of a 10-year
period and other than a termination by the Company
pursuant to which a wind down or transition of at least
one year is provided).
(k) Long Term Credit Agreement. An Event of Default
(as defined in the Long Term Credit Agreement) shall occur.
13.2 Effect of Event of Default. If any Event of
Default described in Section 13.1(d) shall occur, automatically
all of the Commitments (if they have not theretofore terminated)
shall immediately terminate and automatically all Liabilities
shall become immediately due and payable, all without
presentment, demand or notice of any kind all of which are hereby
waived; and, in the case of any other Event of Default, unless
such Event of Default shall have been cured, (i) the
Administrative Agent may and, upon the written request of the
Required Banks, shall declare all Commitments (if they have not
theretofore terminated) to be terminated whereupon all such
Commitments (if they have not theretofore terminated) shall
immediately terminate, and (ii) the Administrative Agent may and,
upon the written request of Banks holding Notes evidencing at
least 66-2/3% of the aggregate unpaid principal amount of the
Loans, declare all Liabilities to be due and payable, whereupon
all such Liabilities shall become immediately due and payable,
all without presentment, demand or notice of any kind, all of
which are hereby waived. The Administrative Agent shall promptly
advise the Company and each Bank of any such declaration, but
failure to do so shall not impair the effect of such declaration.
Notwithstanding the foregoing, no rescission of a termination of
the Commitments shall be made without the written consent of all
of the Banks, and no rescission of any acceleration of any of the
Loans shall be made without the written consent of the Banks
holding 100% of the aggregate unpaid principal amount of the
Loans so accelerated.
SECTION 14 THE AGENTS.
14.1 Authorization. Each Bank and the holder of each
Note authorizes each Agent to act on behalf of such Bank or
holder to the extent provided in this Agreement and in any other
document or instrument delivered hereunder or in connection
herewith, and to take such other action as may be reasonably
incidental thereto. Subject to the provisions of Section 14.3,
each Agent, in its capacity as such, will take such action
permitted by any agreement delivered in connection with this
Agreement as may be requested in writing by the Required Banks or
all Banks, as appropriate.
14.2 Indemnification. The Banks severally agree to
indemnify each Agent, in its capacity as such, and each officer,
director, employee and agent of each Agent (herein collectively
called the "Agent Parties" and individually called an "Agent
Party"), ratably according to their respective Commitments to the
extent not reimbursed by the Company, from and against any and
all actions, causes of action, suits, losses, liabilities,
damages, and expenses which may at any time (including without
limitation at any time following the payment of any of the
Liabilities) be imposed on, incurred by or asserted against such
Agent Party in any way relating to or arising out of this
Agreement, or any documents contemplated by or referred to herein
or the transactions contemplated hereby or any action taken or
omitted by such Agent Party under or in connection with any of
the foregoing; provided, that no Bank shall be liable for the
payment to such Agent Party of any portion of such actions,
causes of action, suits, losses, liabilities, damages, and
expenses resulting from such Agent Party's gross negligence or
willful misconduct. All obligations provided for in this Section
14.2 shall survive satisfaction of the Liabilities, cancellation
of the Notes and any termination of this Agreement.
14.3 Action on Instructions of the Required Banks. As
to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or
take any action, but each Agent shall be required to act or to
refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required
Banks, and such instructions shall be binding upon the Banks
(including, without limitation, all subsequent holders of the
Notes); provided, however, that no Agent shall be required to
take any action which exposes such Agent to personal liability or
which is contrary to this Agreement or applicable law. The
relationship between the Agents and the Banks is and shall be
that of agent and principal only and nothing herein contained
shall be construed to constitute any Agent a trustee for any
party hereto or any holder of a Note or of a participation
therein nor to impose on any Agent duties and obligations other
than those expressly provided for herein.
14.4 Payments.
(a) The Applicable Agent shall be entitled to assume
that each Bank has made the proceeds of each of its Loans
available in accordance with this Agreement unless such Bank
notifies such Agent prior to 11:30 a.m., Chicago time, on the
Funding Date for such Loan that it does not intend to make such
Loan, it being understood that no such notice shall relieve such
Bank of any of its obligations under this Agreement. If the
Applicable Agent makes any payment to the Company on the
assumption that a Bank has made the proceeds of its Loan
available to the Applicable Agent but has not in fact done so,
such Bank shall pay to the Applicable Agent on demand an amount
equal to the amount of the Loan which it was obligated to make,
together with interest thereon for each day that elapses from and
including such Funding Date to the Business Day on which such
sums become immediately available to the Applicable Agent, prior
to 12:00 noon, Chicago time, at the Federal Funds Rate for each
such day, based upon a year of 360 days.
(b) Each Agent shall be entitled to assume that the
Company has made all payments due hereunder on the due date
thereof unless it receives notification prior to any such due
date from the Company that the Company does not intend to make
any such payment, it being understood that no such notice shall
relieve the Company of any of its obligations under this
Agreement. If any Agent distributes any payment to a Bank or any
Assignee hereunder in the belief that the Company has paid to
such Agent the amount thereof but the Company has not in fact
paid to such Agent such amount, such Bank or Assignee shall pay
to such Agent on demand an amount equal to the amount of the
payment made by such Agent to such Bank, together with interest
thereon for each day that elapses from and including the date on
which such Agent made such payment to but excluding the Business
Day on which the amount of such payment is returned to such Agent
in immediately available funds prior to 12:00 noon, Chicago time,
at the Federal Funds Rate for each such day, based upon a year of
360 days. If the amount of such payment is not returned to such
Agent in immediately available funds within five (5) Business
Days after such demand for payment was made by such Agent, such
Bank or Assignee shall pay to such Agent on demand an amount
calculated in the manner specified in the preceding sentence
after substituting the term "Base Rate" for the term "Federal
Funds Rate". A certificate of the Applicable Agent submitted to
any Bank with respect to amounts owing under this Section 14.4(b)
shall be conclusive absent manifest error.
(c) Each Agent shall promptly remit to each Bank or
other holder its share of all payments received by such Agent for
the account of such Bank or holder, such remittance to be in
Dollars and in same day funds (or, if different, the kind of
funds received by such Agent). Unless expressly provided
otherwise in this Agreement, each Agent shall distribute payments
to the Banks on the same day on which such Agent received the
corresponding payment from the Company if such payment from the
Company was received before 12:00 noon, Chicago time, and on the
next Business Day if such payment from the Company was received
after 12:00 noon, Chicago time, and if any Agent does not
distribute payments to the Banks on the day when due such Agent
shall pay to each Bank entitled to receive payment, on demand by
such Bank, interest on the payment due to such Bank for each day
that elapses from and including the date on which such payment
was due to but excluding the Business Day on which such payment
is made to such Bank in immediately available funds prior to
12:00 noon, Chicago time, at the Federal Funds Rate for each such
day, based upon a year of 360 days. If the amount of such
payment is not made to any Bank in immediately available funds
within five (5) Business Days after such payment was due to such
Bank, such Agent shall pay to such Bank on demand an amount
calculated in the manner specified in the preceding sentence
after substituting the term "Base Rate" for the term "Federal
Funds Rate". A certificate of any Bank submitted to any Agent
with respect to amounts owing under this Section 14.4(c) shall be
conclusive absent manifest error.
14.5 Exculpation. Each Agent shall be entitled to
rely upon advice of counsel concerning legal matters, and upon
this Agreement and any Note, security agreement, schedule,
certificate, statement, report, notice or other writing which it
believes to be genuine or to have been presented by a proper
person. No Agent Party shall (i) be responsible for any
recitals, representations or warranties contained in, or for the
execution, validity, genuineness, effectiveness or enforceability
of, this Agreement or any Note, security agreement, schedule,
certificate, statement, report, notice or other writing delivered
hereunder or in connection herewith, (ii) be responsible for the
validity, genuineness, perfection, effectiveness, enforceability,
existence, value or enforcement of any collateral security, (iii)
be deemed to have knowledge of an Event of Default or Unmatured
Event of Default until after having received actual notice
thereof from the Company or any Bank, (iv) be under any duty to
inquire into or pass upon any of the foregoing matters, or to
make any inquiry concerning the performance by the Company or any
other obligor of its obligations, or (v) in any event, be liable
as such for any action taken or omitted by it or them, except for
its or their own gross negligence or willful misconduct. The
agency hereby created shall in no way impair or affect any of the
rights and powers of, or impose any duties or obligations upon,
any Agent in its individual capacity.
14.6 Credit Investigation. Each Bank acknowledges and
shall cause each actual or potential Assignee or Participant to
acknowledge to such Bank in its assignment or participation
agreement with such Bank that (i) it has made and will continue
to make such inquiries and has taken and will take such care on
its own behalf as would have been the case had it made the Loans
directly to the Company without the intervention of any Agent or
any other Person, and (ii) it has made and will continue to make
its own credit analysis and decisions relating to this Agreement
independently and without reliance upon any Agent or any other
Bank, and based on such documents and information as it has
deemed appropriate. Each Bank agrees and acknowledges and shall
cause each actual or potential Assignee or Participant to agree
with, and acknowledge to, such Bank in its assignment or
participation agreement with such Bank that no Agent or any other
Bank makes any representations or warranties about the
creditworthiness of the Company or any other party to this
Agreement or with respect to the legality, validity, sufficiency
or enforceability of this Agreement or any Note or the value of
any security therefor.
14.7 Agents and Affiliates. Each Agent and each of
its successors as an Agent shall have the same rights and powers
hereunder as any other Bank and may refrain from exercising the
same as though it were not an Agent, and each Agent and each such
successor and its Affiliates may accept deposits from and
generally engage in any kind of business with the Company or any
Affiliate thereof as if such Agent and each such successor were
not an Agent.
14.8 Resignation and Removal.
(a) Any Agent may resign as such at any time upon at
least 30 days' prior notice to the Company and the Banks, and any
Agent may be removed as such at any time by vote of the Required
Banks and notice to the retiring Agent and the Company. In the
event of any such resignation or removal, the Required Banks
shall as promptly as practicable (but with five (5) Business
Days' prior written notice being given to the Company) appoint a
successor Agent. If no successor Agent shall have been so
appointed, and shall have accepted such appointment within 30
days after either the retiring Agent's giving of notice of
resignation or the Required Banks' vote to remove the retiring
Agent, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of
any State thereof or under the laws of another country which is
doing business in the United States and having a combined
capital, surplus and undivided profits of at least $100,000,000.
(b) The Company may, at any time, remove any Agent
upon five days' prior written notice to such Agent and each Bank;
provided, however, that any such removal may not become effective
prior to the time that a successor Agent, appointed by the
Company and having the qualifications described above with
respect to successor Agents which may be appointed by a retiring
Agent, shall have accepted such appointment and begun to serve as
Agent hereunder; and provided, further, that in case an Event of
Default or Unmatured Event of Default shall have occurred and be
continuing, the Company may remove an Agent only with the written
consent of the Required Banks.
(c) Upon its acceptance of its appointment, such
successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from all
further duties and obligations as Agent under this Agreement.
After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Agreement shall continue to inure
to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement.
14.9 Advisory Agent. Bank of America National Trust
and Savings Association ("Bank of America"), as Advisory Agent
shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those
applicable to all Banks as such. Without limiting the foregoing,
Bank of America shall not have or be deemed to have any fiduciary
relationship with any Bank. Each Bank acknowledges that it has
not relied, and will not rely, on Bank of America in deciding to
enter into this Agreement or in taking or not taking action
hereunder.
SECTION 15 GENERAL.
15.1 Waiver; Amendments. No delay on the part of any
Agent, any Bank or the holder of any Note in the exercise of any
right, power or remedy shall operate as a waiver thereof, nor
shall any single or partial exercise by any of them of any right,
power or remedy preclude any other or further exercise thereof,
or the exercise of any other right, power or remedy. Except as
otherwise specifically provided in this Agreement, the
concurrence of the Required Banks shall be required for any
amendment, modification or waiver of, or consent with respect to,
any provision of this Agreement, the Notes or other documents,
instruments or agreements affecting the rights of such Banks.
Any amendment, modification, waiver or consent shall be effective
only in the specific instance and for the specific purpose for
which given.
Notwithstanding the foregoing:
(a) the consent of all Banks shall be required
for any amendment, modification, waiver or consent with
respect to the following: (i) any change in the amount
or the scheduled timing of the payment of principal or
any extension of the maturity thereof, (ii) any
reduction in the rate of interest or any change in the
timing of the payment of such interest, (iii) any
change or reduction in or any waiver of the amount of
any fees under Sections 6.5 or 6.6 or any change in the
timing of the payment of any such fees, (iv) except as
provided in Section 2.7 with respect to a Bank's
Commitment, any extension of such Commitment or any
increase in the amount of such Commitment, or (v) any
change in the allocation of proceeds or payments among
the Banks;
(b) the consent of all Banks shall be required
for any amendment, modification, waiver or consent
relating to any of the following items: (i) any change
in Section 12.1, or (ii) any change in this Section
15.1, or (iii) any change to the definition of Required
Banks or any provision which specifies the requisite
level or number of Banks which are required to amend,
modify, waive or consent to any provisions of this
Agreement.
(c) no provisions of Section 6.7 or Section 14
shall be amended, modified or waived without the
consent of all Agents.
15.2 Notices.
(a) Except as otherwise expressly provided in this
Agreement, any notice hereunder to the Company, any Agent, any
Bank or other holder shall be in writing. Notices given by
telegram, telex, telecopier or personal delivery shall be deemed
to have been given and received when sent (and, in the case of
telex, the appropriate answerback is received) and notices given
by mail shall be deemed to have been given and received three
Business Days after the date when sent by registered or certified
mail, postage prepaid, and addressed to the Company, such Agent,
or such Bank (or other holder) at its address shown below its
signature hereto, or at such other address as any such Person
may, by written notice received by such other persons, have
designated as its address for such purpose. Any Agent, any Bank
or the holder of any Note giving any waiver, consent or notice
to, or making any request upon, the Company hereunder shall
promptly notify each Bank and the Applicable Agent thereof.
Correspondence with respect to Negotiated Loans and notices of
Loan Requests (other than Negotiated Loan Confirmations) made by
the Company shall be directed to the persons specified for such
purpose for each party on the signature pages hereto or in
subsequent writings among the parties. Each Agent shall promptly
transmit to each Bank (or share with each Bank the contents of)
each notice it receives from the Company pursuant to this
Agreement other than notices with respect to Negotiated Loans and
Swing Loans which shall be furnished by the Administrative Agent
through the Master Register pursuant to Section 8.5(b). Notices
to any Agent in connection with borrowings, payments,
Continuations or Conversions shall not be effective until actual
receipt by such Agent.
(b) Each Agent and each Bank shall be entitled to rely
upon all telephonic notices without awaiting receipt of written
versions of such notices and the Company shall hold each Agent,
and each Bank harmless from, and shall indemnify each Agent and
each Bank against, any loss, cost or expense ensuing from any
such reliance.
15.3 Computations.
(a) Where the character or amount of any asset or
liability or item of income or expense is required to be
determined or any consolidation or other accounting computation
is required to be made for the purpose of this Agreement, such
determination or calculation shall, at any time and to the extent
applicable and except as otherwise specified in this Agreement,
be made in accordance with GAAP.
(b) Notwithstanding the preceding paragraph (a),
except for the changes required in implementing Financial
Accounting Standards Board Statements adopted prior to January 1,
1994 and which are to be implemented by the Company after
January 1, 1994 (namely, Statements 115 and 116), in the event of
any changes in GAAP as applied in preparing the audited financial
statements of the Company and its consolidated Subsidiaries as at
January 1, 1994 which result in a change in the earnings of the
Company, Consolidated Net Income, Debt of the Company and its
Restricted Subsidiaries, or Consolidated Shareholder's Equity of
the Company, such change (net of related tax effects, if any)
shall be added back to or subtracted from, as the case may be,
any determination of the earnings of the Company, Consolidated
Net Income, Debt of the Company and its Restricted Subsidiaries,
and Consolidated Shareholder's Equity of the Company for the
purpose of applying the Consolidated Shareholder's Equity of the
Company, Ratio of Earnings to Fixed Charges and the ratio of Debt
to Total Capitalization tests and in determining applicable
limitations on distributions with respect to the Company's
capital stock.
(c) While the Company and MWCC intend that the sale of
receivables to MWCC by the Company under the MWCC Receivables
Purchase Agreement be considered sales by the Company and not
secured loans to the Company by MWCC, such transaction may be
classified as a loan under Financial Accounting Standards Board
Statement No. 77. Irrespective of whether such receivables sale
transactions are classified as a sale or a loan under Financial
Accounting Standards Board Statement No. 77, such transactions
shall be treated as sales without recourse for the purposes of
this Agreement and not a secured loan.
15.4 Participations; Assignments; Replacement of
Banks.
(a) Participations. Subject to the provisions of this
Section 15.4, any Bank may at any time, in the ordinary course of
its commercial banking business and in accordance with applicable
law, sell to one or more banks or other financial institutions,
and to such other Persons or types of Persons which the Company
may from time to time approve in its sole discretion
(collectively, "Participants") participating interests in any
Loan owing to such Bank, or any Note held by such Bank, provided
that no Bank shall, without the prior written notice to and
consent of the Company (which consent may be withheld or granted,
as the case may be, in the Company's sole discretion), sell any
participation in any Commitment or any portion thereof. In the
event of any such sale to a Participant, upon request by the
Company the selling Bank shall give written notice, to the
Company stating the Participant's name and address and the amount
of the participation purchased, but
continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations
under this Agreement,
(ii) all amounts payable by the Company shall be
determined as if such Bank had not sold such
participation, and
(iii) any Participant which is not an Affiliate
of the selling Bank shall have no right to require the
selling Bank to take or omit to take any action under
this Agreement or any Note other than action directly
affecting the extension of the stated maturity of any
Loan, directly affecting any scheduled installment of
principal or any scheduled reduction in the stated
amount of, or interest on, any Loan in which such
participation was sold, or reducing the principal or
stated amount thereof or the rate of interest thereon
or fees payable hereunder.
Each Bank agrees to incorporate the requirements set forth in the
preceding sentence into each participation agreement which such
Bank enters into with any Participant. The Company agrees that
if amounts outstanding under this Agreement and the Notes are due
or unpaid, or shall have been declared or shall have become due
and payable upon the occurrence of an Event of Default, each
Participant shall, if its participation agreement with the
selling Bank so provides, be deemed to have the right of setoff
in respect of its participating interest in amounts owing under
this Agreement or any Note to the same extent as if the amount of
its participating interest were owing directly to it as a Bank
under this Agreement or any Note; provided that such right of
setoff shall be subject to such Participant's obligation to share
with the Banks, and the Banks agree to share with such
Participant, as provided in Section 8.2(c). No participation
contemplated in this Section 15.4 shall relieve any Bank either
from its Commitment hereunder or from any of its other
obligations hereunder and such Bank shall remain solely
responsible for the performance thereof.
(b) Assignments. Subject to the provisions of this
Section 15.4, any Bank may, with the Company's prior written
approval (which approval may be withheld or granted, as the case
may be, in the Company's sole discretion), execute an assignment
and acceptance substantially in the form of Exhibit L, with
appropriate insertions (herein individually called an
"Assignment" and collectively called the "Assignments"), whereby
such Bank shall assign, without recourse and without
representation or warranty except as specifically set forth in
said Assignment, to one or more banks or other entities (herein
individually called an "Assignee" and collectively called the
"Assignees") all or any part of such Bank's rights and benefits,
and delegate all or any part of such Bank's obligations, under
this Agreement and its Notes; provided, that any such Assignment
shall assign equal percentage amounts of the assignor Bank's
Commitment under this Agreement and such Bank's commitment under
the Long Term Credit Agreement. Notwithstanding the foregoing,
if the Company shall unreasonably withhold approval of any
requested assignment and shall not secure a replacement assignee
with respect to such assignment proposed by any such Bank within
60 days after the request in writing to the Company for such
approval, any such Bank may upon the expiration of such 60-day
period complete the proposed assignment (but only on the terms
proposed and to the Assignee proposed) and the Company agrees
that the Assignment shall have the same effect as if executed by
the Company.
Upon execution, delivery and acceptance of each
Assignment, from and after the effective date specified therein,
which effective date shall be at least five (5) Business Days
after the execution thereof, the Company, the Agents and the
Banks agree that, to the extent of any such Assignment,
(x) the Assignee thereunder shall, in addition to
any rights, benefits and obligations hereunder held by
it immediately prior to such effective date, have the
rights, benefits and obligations of a Bank under this
Agreement and the assignor Bank's Notes (including,
without limitation, rights and benefits arising out of
Section 9) and the same rights of setoff pursuant to
Section 8.3 and obligation to share pursuant to Section
8.2 as it would have if it were a Bank hereunder to the
extent that the same have been assigned and delegated
to it pursuant to such Assignment, and
(y) the assignor Bank shall, to the extent that
rights, benefits and obligations hereunder have been
assigned and delegated by it pursuant to such
Assignment, relinquish its rights and benefits and be
released from its obligations under this Agreement
(and, in the case of an Assignment covering all or the
remaining portion of an assignor Bank's rights,
benefits and obligations under this Agreement, such
Bank shall cease to be a party hereto), except that in
all cases the assignor Bank shall remain entitled to
the rights and benefits arising under Sections 6, 8.4,
9, 15.5 and 15.6 with respect to any period of time
prior to the effective date of any such Assignment, and
shall remain liable with respect to any of its
obligations arising under Sections 6.9, 8.4(c), 14.2
and 15.5, with respect to any matters arising prior to
the effective date of any such Assignment;
provided, that:
(i) each Agent and each Bank shall be entitled to
continue to deal solely and directly with the assignor
Bank in connection with the interests so assigned and
delegated to the Assignee until written notice of such
Assignment, together with addresses and related
information with respect to the Assignee, shall have
been given to each Agent and each Bank by the assignor
Bank and the Assignee,
(ii) if the Assignee is a Non-United States
Person, it shall deliver to the Company and the
Applicable Agent a written representation and
undertaking substantially similar to Section 8.4(b),
and
(iii) the Company shall not be required to pay
any costs, fees or taxes of any kind or nature with
respect to the interest(s) assigned in excess of those
payable by the Company in connection with such
interest(s) prior to such assignment except for any
costs, fees or taxes described in Section 8.4, 9 or
15.6.
Upon its receipt of an Assignment executed by an assignor Bank
and an Assignee, together with the Notes subject to such
Assignment, the Applicable Agent shall, if such Assignment has
been completed and is in substantially the form of Exhibit L,
accept such Assignment and forward a photostatic copy thereof to
the Company. Within five (5) Business Days after its receipt of
a photostatic copy of such Assignment, the Company shall execute
and deliver to the Applicable Agent, to be exchanged for the
Notes delivered to the Applicable Agent by the assignor Bank, new
Notes payable to the order of the Assignee in an amount equal to
the Commitment assumed by it pursuant to such Assignment (or
other amount applicable to Swing Notes or Negotiated Notes) and,
if the assignor Bank has retained a Commitment hereunder, new
Notes payable to the order of the assignor Bank in an amount
equal to the Commitment retained by it hereunder (or other amount
applicable to Swing Notes or Negotiated Notes). Such new Notes
shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Notes, shall be dated the
effective date of such Assignment, shall be payable to the order
of the Assignee or the assignor Bank, shall otherwise be in
substantially the form of such surrendered Notes, and shall
constitute Notes under this Agreement. Such new Notes shall be
in replacement and substitution for, and not in payment of, the
Notes delivered to the Applicable Agent by the assignor Bank.
The Applicable Agent shall deliver such new Notes to the payee or
payees thereof and shall mark the Notes previously held by the
assignor Bank as "replaced" and shall deliver the same to the
Company. The Administrative Agent shall from time to time
distribute a revised Schedule I giving effect to any Assignments
or other modifications hereunder.
(c) Federal Reserve. Anything contained in this
Agreement to the contrary notwithstanding, and without the need
to comply with any of the formal or procedural requirements set
forth in this Agreement, any Bank may at any time and from time
to time grant a participation in, assign, deposit or pledge all
or any portion of its rights under this Agreement or the Notes to
a Federal Reserve Bank; provided, however, no such participation,
assignment, deposit or pledge shall relieve such Bank of any of
its obligations under this Agreement.
(d) Information. Notwithstanding the terms of any
previous confidentiality agreements with respect to the subject
matter hereof between the Company and any Bank, from and after
the Effective Date any Bank may furnish any information
concerning the Parent, the Company and the Subsidiaries which has
been furnished to such Bank pursuant hereto to any Assignee,
Participant, or potential Assignee or Participant; provided,
however, that the recipient of such information shall, prior to
being furnished with any such information, agree to maintain the
confidentiality of such information. Notwithstanding the
foregoing sentence, any Agent, Bank, Assignee, Participant or
potential Assignee or Participant shall be permitted to disclose
information regarding the Company and its Subsidiaries (i) to any
other Agent or Bank, or to any Assignee or Participant, (ii) to
any Affiliate, agent or employee that agrees to be bound by this
Section 15.4(d), (iii) upon order of any court or administrative
agency, (iv) upon the request or demand of any regulatory agency
or authority having jurisdiction over such party, (v) which has
been publicly disclosed, (vi) which has been obtained from any
Person that is not a party hereto or an Affiliate, agent or
employee of any such party, (vii) in connection with the exercise
of any remedy hereunder, or (viii) to such Person's certified
public accountants and its attorneys.
(e) Replacement of Banks. So long as no Event of
Default or Unmatured Event of Default shall have occurred and be
continuing, the Company shall have the right on five Business
Days' written notice (except during the period from a Revocation
Cut-Off Date to the then existing Termination Date, only
concurrent written notice shall be required to replace a Bank
which has not then irrevocably consented to an Extension Request)
to each of the Agents and the Banks to substitute any financial
institution designated by the Company (a "Replacement Bank") for
any Bank designated by the Company as a terminated bank
("Terminated Bank"); provided, however, that the effectiveness of
such substitution shall be subject to execution of an agreement
substantially in the form of Exhibit M hereto ("Replacement
Agreement") by the Replacement Bank, the Company and the
Administrative Agent, providing for:
(i) payment of all Liabilities of the Company
then outstanding to the Terminated Bank (including
without limitation all such amounts due such Bank under
Sections 6, 8.4, 9, 15.5 and 15.6);
(ii) the termination and release of all
obligations of the Terminated Bank (excluding any
obligations arising under Sections 6.9, 8.4(c), 14.2
and 15.5 with respect to any matters arising prior to
the effective date of such termination); and
(iii) the agreement of the Replacement Bank to
become a party to this Agreement and to be bound under
this Agreement with the same effect as if the
Replacement Bank were the Terminated Bank immediately
prior to such substitution.
So long as the Long Term Credit Agreement is in effect, the
Company shall not replace a Terminated Bank pursuant to this
Section 15.4(e) unless the Company concurrently replaces such
Terminated Bank with the same Replacement Bank under the Long
Term Credit Agreement. Upon execution of such Replacement
Agreement the Administrative Agent shall forward a copy thereof
to each Bank and each other Agent, together with a revised
Schedule I modified to reflect such substitution. Upon execution
of such Replacement Agreement, the Replacement Bank shall be
deemed to be a party to this Agreement and a Bank hereunder and
the Terminated Bank will cease to be a party to this Agreement
and a Bank hereunder but shall be entitled to all the indemnities
provided by this Agreement with respect to matters arising out of
action or inaction by any party while such Terminated Bank was a
party to this Agreement.
15.5 Costs, Expenses and Taxes.
(a) The Company agrees to pay on demand all fees and
out-of-pocket costs and expenses of McDermott, Will & Emery (or
other law firm acceptable to the Required Banks) as special
counsel to the Documentary Agent and the Banks (and of other
special counsel, if any, who may be retained by said counsel), in
connection with the preparation, execution, delivery,
administration and enforcement of this Agreement, the Notes and
all other instruments or documents provided for herein or
delivered or to be delivered hereunder or in connection herewith,
and any and all waivers, consents, amendments, modifications,
replacements or restatements relating to any thereof; provided
that the Company's obligations hereunder with respect to
administration shall be limited to administration of or by the
Banks which are Agents hereunder. Each Bank agrees to reimburse
each Agent for such Bank's pro rata share (based upon its
respective Commitment) of any reasonable costs or expenses
incurred by such Agent on behalf of the Banks in connection with
such administration and enforcement (including reasonable
attorneys' fees and legal expenses) not paid by the Company
except to the extent that such costs or expenses arise from such
Agent's gross negligence or willful misconduct.
(b) The Company further agrees (i) to pay on demand
all reasonable fees and out-of-pocket expenses (including all
attorneys' fees, legal expenses and allocated costs of staff
counsel) of each Bank incurred directly in connection with the
enforcement of this Agreement, the Notes and all other
instruments or documents provided for herein or delivered or to
be delivered hereunder or in connection herewith, and any and all
amendments, modifications, replacements or restatements relating
to any thereof, and (ii) to pay, and to save each Agent and the
Banks harmless from all liability for, any stamp or other taxes
which may be payable in connection with the execution and
delivery of this Agreement, the borrowings hereunder, or the
issuance of the Notes or of any other instruments or documents
provided for herein or delivered or to be delivered hereunder or
in connection herewith.
(c) Except as otherwise provided in the preceding
paragraphs (a) and (b), each party shall pay its own expenses in
connection with this Agreement. All obligations provided for in
this Section 15.5 shall survive repayment of the Loans,
cancellation of the Notes and any termination of this Agreement.
15.6 Indemnification. In consideration of the
execution and delivery of this Agreement by the Agents and the
Banks, the Company hereby agrees to indemnify, exonerate and hold
harmless each Bank, each Agent and each officer, director,
employee and agent of each Bank and each Agent (herein
collectively called the "Bank Parties" and individually called a
"Bank Party") from and against any and all actions, causes of
action, suits, losses, costs (including, without limitation, all
documentary or other stamp taxes or duties), liabilities, damages
and expenses (other than expenses covered by Section 15.5(a)) in
connection therewith (irrespective of whether such Bank Party is
a party to the action for which indemnification hereunder is
sought), including, without limitation, reasonable attorneys'
fees (including allocated costs of staff counsel) and
disbursements (collectively herein called the "Indemnified
Liabilities") incurred by the Bank Parties or any of them as a
result of, or arising out of, or relating to any Loan or the use
of the proceeds of any Loan except for any such Indemnified
Liabilities arising on account of such Bank Party's gross
negligence or willful misconduct and, if and to the extent that
the foregoing undertaking may be unenforceable for any reason,
the Company hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. All obligations
provided for in this Section 15.6 shall survive repayment of the
Liabilities, cancellation of the Notes and any termination of
this Agreement.
15.7 Regulation U. Each Bank represents that it in
good faith is not relying, either directly or indirectly, upon
any Margin Stock as collateral security for the extension or
maintenance by it of any credit provided for in this Agreement.
15.8 Captions. Section captions used in this
Agreement are for convenience only, and shall not affect the
construction of this Agreement.
15.9 Governing Law; Severability. This Agreement and
each Note shall be a contract made under and governed by the laws
of the State of Illinois without regard to conflict of laws
principles. All obligations of the Company and the rights of the
Agents, the Banks and any other holders of the Notes expressed
herein or in the Notes shall be in addition to and not in
limitation of those provided by applicable law. Whenever
possible each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Agreement. Nothing herein shall require the
Company to pay interest in excess of the maximum rate permitted
by law.
15.10 Waiver of Jury Trial. Each of the Company, each
Agent and each Bank waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights under this
Agreement, any Note or any amendment, instrument, document or
agreement delivered or which may in the future be delivered in
connection herewith or arising from any banking relationship
existing in connection with this Agreement, and agrees that any
such action or proceeding shall be tried before a court and not
before a jury.
15.11 Counterparts; Effectiveness. This Agreement may
be executed in any number of counterparts and by the different
parties on separate counterparts and each such counterpart shall
be deemed to be an original, but all such counterparts shall
together constitute but one and the same agreement. This
Agreement shall become effective as of the Effective Date and the
Documentary Agent shall so inform all of the parties hereto.
15.12 Supersession. This Agreement supersedes all
prior or contemporaneous agreements with respect to the subject
matter hereof.
15.13 Successors and Assigns. This Agreement shall be
binding upon the Company, the Banks and the Agents and their
respective successors and assigns, and shall inure to the benefit
of the Company, the Banks and the Agents and the respective
successors and assigns of the Banks and the Agents, it being
understood that subject to Section 11.6, the Company shall not
assign its rights hereunder without the consent of all of the
Banks.
* * *
<PAGE>
Delivered at Chicago, Illinois as of the day, month and
year first above written.
MONTGOMERY WARD & CO., INCORPORATED
By:
Name: Douglas V. Gathany
Title: Senior Assistant Treasurer
One Montgomery Ward Plaza
844 North Larrabee
Chicago, Illinois 60671
Attention: Treasurer
Telephone: (312) 467-7238
Telecopy: (312) 467-7421
Person to whom Negotiated Loan correspondence
should be addressed:
Douglas V. Gathany
Senior Assistant Treasurer
Telephone: (312) 467-7238
Telecopy: (312) 467-7421
Person to whom copies of notices under Section
13.2 should also be sent:
Montgomery Ward & Co., Incorporated
One Montgomery Ward Plaza
535 West Chicago Avenue
Chicago, Illinois 60671
Attention: Secretary
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO, in its
individual capacity and in its capacity as
Documentary Agent
By:
Name: Jeanette Ganousis
Title: Vice President
Mail Suite 0088
One First National Plaza
Chicago, IL 60670
Telephone: (312) 732-6066
Telecopy: (312) 732-5161
Person to whom Negotiated Loan correspondence
should be addressed:
Dennis Degen
Administrative Coordinator
Telephone: (312) 732-6246
Telecopy: (312) 732-2715
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Dennis Degen
Administrative Coordinator
Telephone: (312) 732-6246
Telecopy: (312) 732-2715
Base Rate Loan Funding Office:
The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
Eurodollar Loan Funding Office:
The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
<PAGE>
THE BANK OF NEW YORK, in its individual
capacity and in its capacity as Negotiated
Loan Agent
By:
Name: Bruce C. Miller
Title: Vice President
One Wall Street
New York, NY 10286
Telephone: (212) 635-1172
Telecopy: (212) 635-1208
Person to whom Negotiated Loan correspondence
should be addressed:
Carol Surles, 18th Floor
Telephone: (212) 635-4695
Telecopy: (212) 635-6365
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Carol Surles, 18th Floor
Telephone: (212) 635-4695
Telecopy: (212) 635-6365
Base Rate Loan Funding Office:
The Bank of New York
Commercial Loan Servicing Dept.
101 Barclay Street
New York, NY 10007
Eurodollar Loan Funding Office:
The Bank of New York
Euro Dollar/Cayman Funding Area
101 Barclay Street
New York, NY 10007
<PAGE>
THE BANK OF NOVA SCOTIA, in its individual
capacity and in its capacity as Administrative
Agent
By:
Name: F.C.H. Ashby
Title: Senior Assistant Agent
Suite 2700
600 Peachtree NE
Atlanta, GA 30308
Telephone: (404) 877-1500
Telecopy: (404) 888-8998
Telex: 00542319
Person to whom Negotiated Loan correspondence
should be addressed:
Sarah Schramm
NYA - Treasury
Telephone: (212) 225-5550
Telecopy: (212) 225-5517
Telex: ITT421791
WUI669859
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Ed Moussa
Atlanta Agency
Telephone: (404) 877-1500
Telecopy: (404) 888-8998
Telex: 00542319
Base Rate Loan Funding Office:
The Bank of Nova Scotia
Atlanta Agency
Suite 2700
600 Peachtree NE
Atlanta, GA 30308
Eurodollar Loan Funding Office:
The Bank of Nova Scotia
Atlanta Agency
Suite 2700
600 Peachtree NE
Atlanta, GA 30308
<PAGE>
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, in its individual capacity and in
its capacity as Advisory Agent
By:
Name: M. Kathleen McVay
Title: Senior Vice President
200 West Adams Street, Suite 2800
Chicago, Illinois 60606
Telephone: (312) 269-4644
Telecopy: (312) 269-4540
Person to whom Negotiated Loan correspondence
should be addressed:
M. Kathleen McVay
Senior Vice President
Telephone: (312) 269-4644
Telecopy: (312) 269-4540
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Pamela Quebbeman
Bank of America
231 South LaSalle Street
Chicago, Illinois 60697
Telephone: (312) 828-3586
Telecopy: (312) 987-5500
Base Rate Loan Funding Office:
Bank of America National Trust and Savings
Association
Eurodollar Loan Funding Office:
Bank of America National Trust and Savings
Association
<PAGE>
CIBC INC.
By:
Name: David McGowan
Title: Vice President
Suite 2300
200 West Madison Street
Chicago, IL 60606
Telephone: (312) 750-8730
Telecopy: (312) 726-8884
Person to whom Negotiated Loan correspondence
should be addressed:
Carol Kizzia
425 Lexington
New York, New York 10017
Telephone: (212) 856-3693
Telecopy: (212) 856-6699
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Sherry Smith
Assistant Vice President
with a copy to:
Junior Williams
Associate
2 Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, GA 30339
Telephone: (404) 319-4820
Telecopy: (404) 319-4950
Telex: 54-2413
Base Rate Loan Funding Office:
Canadian Imperial Bank of Commerce
2 Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Eurodollar Loan Funding Office:
Canadian Imperial Bank of Commerce
2 Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
<PAGE>
NATIONSBANK OF NORTH CAROLINA
By:
Name: Christopher B. Torie
Title: Senior Vice President
70 West Madison Street, 53rd Floor
Chicago, Illinois 60602
Telephone: (312) 853-5794
Telecopy: (312) 853-9194
Person to whom Negotiated Loan correspondence
should be addressed:
Kathy Mumpower
Telephone: (704) 386-7429
Telecopy: (704) 386-8694
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Kathy Mumpower
Telephone: (704) 386-7429
Telecopy: (704) 386-8694
Base Rate Loan Funding Office:
NationsBank of North Carolina
#1 Nations Bank Plaza T 17-21
Charlotte, North Carolina 28255
Eurodollar Loan Funding Office:
NationsBank of North Carolina
#1 Nations Bank Plaza T 17-21
Charlotte, North Carolina 28255
<PAGE>
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
Name: Mark A. Thompson
Title: Vice President and Deputy
General Manager
190 South LaSalle Street
Chicago, Illinois 60603
Telephone: (312) 704-5459
Telecopy: (312) 704-8505
Person to whom Negotiated Loan correspondence
should be addressed:
Will Schauble
Vice President, Loan Operations
Telephone: (312) 704-5494
Telecopy: (312) 704-8717
Telex: 825567
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Will Schauble
Vice President, Loan Operations
Telephone: (312) 704-5494
Telecopy: (312) 704-8717
Telex: 825567
Base Rate Loan Funding Office:
190 South LaSalle Street, Suite 800
Chicago, Illinois 60603
Eurodollar Loan Funding Office:
190 South LaSalle Street, Suite 800
Chicago, Illinois 60603
<PAGE>
CREDIT LYONNAIS CHICAGO BRANCH
By:
Name: Attila Koc
Title: Vice President, Corporate
Group Head
Marcus Katz, Vice President
227 West Monroe Street
Chicago, IL 60606
Telephone: (312) 220-7307
Telecopy: (312) 641-0527
Telex: 6871734
Person to whom Negotiated Loan correspondence
should be addressed:
Marcus Katz, Vice President
Telephone: (312) 220-7307
Telecopy: (312) 641-0527
Telex: 6871734
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Rosette Liptak
Telephone: (312) 220-7319
Telecopy: (312) 641-5834
Telex: 6871734
Base Rate Loan Funding Office:
Credit Lyonnais Chicago Branch
227 West Monroe Street
Chicago, IL 60606
Eurodollar Loan Funding Office:
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais Chicago Branch
227 West Monroe Street
Chicago, Illinios 60606
<PAGE>
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By:
Name: Attila Koc
Title: Authorized Signature
Marcus Katz, Vice President
227 West Monroe Street
Chicago, IL 60606
Telephone: (312) 220-7307
Telecopy: (312) 641-0527
Telex: 6871734
Person to whom Negotiated Loan correspondence
should be addressed:
Marcus Katz, Vice President
Telephone: (312) 220-7307
Telecopy: (312) 641-0527
Telex: 6871734
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Rosette Liptak
Telephone: (312) 220-7319
Telecopy: (312) 641-5834
Telex: 6871734
Base Rate Loan Funding Office:
Credit Lyonnais Chicago Branch
227 West Monroe Street
Chicago, IL 60606
Eurodollar Loan Funding Office:
Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais Chicago Branch
227 West Monroe Street
Chicago, Illinios 60606
<PAGE>
BANCA COMMERCIALE ITALIANA, CHICAGO BRANCH
By:
Name: Julian M. Teodori
Title: Senior Vice President
By:
Name: Diana R. Lamb
Title: Vice President
150 North Michigan Avenue, Suite 1500
Chicago, Illinois 60601
Telephone: (312) 346-1112
Telecopy: (312) 346-5758
Telex: 212716 COMIT CHICAGO
Person to whom Negotiated Loan correspondence
should be addressed:
Matthew V. Trujillo
Assistant Vice President
Telephone: (312) 346-1112
Telecopy: (312) 346-5758
Telex: 212716 COMIT CHICAGO
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Jonathan Sahr
Loan Department Supervisor
Telephone: (212) 607-3814
Telecopy: (212) 422-6651
Telex: 6790749 BCINY
Base Rate Loan Funding Office:
Banca Commerciale Italiana
New York Branch
One William Street
New York, New York 10004
Eurodollar Loan Funding Office:
Banca Commerciale Italiana
New York Branch
One William Street
New York, New York 10004
<PAGE>
THE DAI-ICHI KANGYO BANK, LTD., CHICAGO BRANCH
By:
Name: Masami Tsuboi
Title: Vice President
10 South Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 715-6365
Telecopy: (312) 876-2011
Telex: 25-4515
Person to whom Negotiated Loan correspondence
should be addressed:
Richard R. Howard
Assistant Vice President
Telephone: (312) 715-6369
Telecopy: (312) 876-2011
Telex: 25-4515
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Gary Marthaler
Officer
Telephone: (312) 715-6451
Telecopy: (312) 876-2011
Telex: 25-4515
Base Rate Loan Funding Office:
The Dai-Ichi Kangyo Bank, Ltd., Chicago Branch
10 South Wacker Drive
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
The Dai-Ichi Kangyo Bank, Ltd., Chicago Branch
10 South Wacker Drive
Chicago, Illinois 60606
<PAGE>
THE MITSUBISHI BANK, LIMITED, CHICAGO BRANCH
By:
Name: Noboru Kobayashi
Title: Joint General Manager
115 South LaSalle Street, Suite 2100
Chicago, Illinois 60603
Telephone: (312) 269-0753
Telecopy: (312) 263-2555
Telex: 190046 BISHIBANK
Person to whom Negotiated Loan correspondence
should be addressed:
Alex Lam
Vice President
Telephone: (312) 269-0753
Telecopy: (312) 263-2555
Telex: 190046 BISHIBANK
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Janice Hennig
Assistant Vice President
Telephone: (312) 269-0473
Telecopy: (312) 263-2555
Telex: 190046 BISHIBANK
Base Rate Loan Funding Office:
115 South LaSalle Street, Suite 2100
Chicago, Illinois 60603
Eurodollar Loan Funding Office:
115 South LaSalle Street, Suite 2100
Chicago, Illinois 60603
<PAGE>
THE NORTHERN TRUST COMPANY
By:
Name: David Blowers
Title: Vice President and Chicago
Division Head
Mr. James M. McMenamin
50 South LaSalle Street
Chicago, Illinois 60675
Telephone: (312) 444-3555
Telecopy: (312) 630-1566
Person to whom Negotiated Loan correspondence
should be addressed:
Mr. James M. McMenamin
50 South LaSalle Street
Chicago, Illinois 60675
Telephone: (312) 444-3555
Telecopy: (312) 630-1566
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Mr. James M. McMenamin
50 South LaSalle Street
Chicago, Illinois 60675
Telephone: (312) 444-3555
Telecopy: (312) 630-1566
Base Rate Loan Funding Office:
50 South LaSalle Street
Chicago, Illinois 60675
Eurodollar Loan Funding Office:
50 South LaSalle Street
Chicago, Illinois 60675
<PAGE>
THE SAKURA BANK, LTD.
By:
Name: Hajime Miyagi
Title: Deputy General Manager
227 West Monroe Street, Suite 4700
Chicago, Illinois 60606
Telephone: (312) 201-5146
Telecopy: (312) 332-5345
Telex: 254048
Person to whom Negotiated Loan correspondence
should be addressed:
Kristin M. Hays
Assistant Vice President
Telephone: (312) 201-5141
Telecopy: (312) 332-5345
Telex: 254048
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Kristin M. Hays
Assistant Vice President
Telephone: (312) 201-5141
Telecopy: (312) 332-5345
Telex: 254048
Base Rate Loan Funding Office:
227 West Monroe Street, Suite 4700
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
227 West Monroe Street, Suite 4700
Chicago, Illinois 60606
<PAGE>
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By:
Name: Jose A. Moreno
Title: Vice President and Manager
10 South Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 368-3007
Telecopy: (312) 346-6677
Telex: 3735188
Person to whom Negotiated Loan correspondence
should be addressed:
Jose A. Moreno
Vice President and Manager
Telephone: (312) 368-3007
Telecopy: (312) 346-6677
Telex: 3735188
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Beverly Wyckoff
Manager, Loan Administration
Telephone: (312) 368-3016
Telecopy: (312) 346-6677
Telex: 3735188
Base Rate Loan Funding Office:
10 South Wacker Drive
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
10 South Wacker Drive
Chicago, Illinois 60606
<PAGE>
SWISS BANK CORPORATION
By:
Name: Nancy A. Russell
Title: Associate Director
By:
Name: William A. McDonnell
Title: Associate Director
141 West Jackson Boulevard
Chicago, Illinois 60604
Telephone: (312) 554-6436
Telecopy: (312) 554-6410 or 6411
Telex: MCI 687 1764 SBOB UW
Person to whom Negotiated Loan correspondence
should be addressed:
Paul Guider
Associate Director
Telephone: (212) 335-1009
Telecopy: (212) 335-1388
Telex: MCI 62841 swisbk uw
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Valerie Williams
Administrative Assistant
Telephone: (212) 574-3146
Telecopy: (212) 574-3180
Telex: MCI 62841 swisbk uw
Base Rate Loan Funding Office:
141 West Jackson Boulevard
Chicago, Illinois 60604
Eurodollar Loan Funding Office:
141 West Jackson Boulevard
Chicago, Illinois 60604
<PAGE>
U.S. NATIONAL BANK OF OREGON
By:
Name: Jeffrey C. Swift
Title: Vice President
National Corporate Banking
111 SW Fifth Avenue, Suite 2900
Portland, Oregon 97204
Telephone: (503) 275-6381
Telecopy: (503) 275-5428
Telex: #360549
Person to whom Negotiated Loan correspondence
should be addressed:
Jan Knox
Participation Specialist
Telephone: (503) 275-6561
Telecopy: (503) 275-4600
Telex: #360549
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Jan Knox
Participation Specialist
Telephone: (503) 275-6561
Telecopy: (503) 275-4600
Telex: #360549
Base Rate Loan Funding Office:
Corporate Loan Servicing
555 S.W. Oak Street
Portland, Oregon 97204
Eurodollar Loan Funding Office:
Corporate Loan Servicing
555 S.W. Oak Street
Portland, Oregon 97204
<PAGE>
UNION BANK
By:
Name: Richard A. Sutter
Title: Vice President
350 California Street, 11th Floor
San Francisco, California 94101
Telephone: (415) 705-7090
Telecopy: (415) 705-7092
Person to whom Negotiated Loan correspondence
should be addressed:
Richard A. Sutter
Vice President
Telephone: (415) 705-7090
Telecopy: (415) 705-7092
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Richard A. Sutter
Vice President
Telephone: (415) 705-7090
Telecopy: (415) 705-7092
Base Rate Loan Funding Office:
350 California Street, 11th Floor
San Francisco, California 94101
Eurodollar Loan Funding Office:
350 California Street, 11th Floor
San Francisco, California 94101
<PAGE>
ABN AMRO BANK N.V.
By:
Name: Jeffrey Dodd
Title: Vice President
By:
Name: Patricia M. Luken
Title: Vice President
135 South LaSalle Street, Suite 425
Chicago, Illinois 60674-9135
Telephone: (312) 904-5362
Telecopy: (312) 606-8425
Telex: 6732700 (Answerback: ABN AMRO CGO)
Person to whom Negotiated Loan correspondence
should be addressed:
Loan Administration
Telephone: (312) 443-2149
Telecopy: (312) 606-8435
Telex: 6732700 (Answerback: ABN AMRO CGO)
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Loan Administration
Telephone: (312) 443-2149
Telecopy: (312) 606-8435
Telex: 6732700 (Answerback: ABN AMRO CGO)
Base Rate Loan Funding Office:
135 South LaSalle Street, Suite 425
Chicago, Illinois 60674-9135
Eurodollar Loan Funding Office:
135 South LaSalle Street, Suite 425
Chicago, Illinois 60674-9135
<PAGE>
FIRST BANK NATIONAL ASSOCIATION
By:
Name: Michael J. McGroarty
Title: Vice President
First Bank National Association
601 2nd Avenue South - MPFP0702
Minneapolis, Minnesota 55402-4302
Telephone: (612) 973-0552
Telecopy: (612) 973-0825
Backup Contact:
Brenda Everson
Commercial Associate
First Bank National Association
601 2nd Avenue South - MPFP0702
Minneapolis, Minnesota 55402-4302
Telephone: (612) 973-0653
Telecopy: (612) 973-0825
Person to whom Negotiated Loan correspondence
should be addressed:
Brenda Everson
Commericial Associate
First Bank National Association
601 2nd Avenue South - MPFP0702
Minneapolis, Minnesota 55402-4302
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Brenda Everson
Commericial Associate
First Bank National Association
601 2nd Avenue South - MPFP0702
Minneapolis, Minnesota 55402-4302
Base Rate Loan Funding Office:
First Bank National Association
First Bank Place
601 2nd Avenue South
Minneapolis, Minnesota 55402-4302
Eurodollar Loan Funding Office:
First Bank National Association
First Bank Place
601 2nd Avenue South
Minneapolis, Minnesota 55402-4302
<PAGE>
THE FIRST NATIONAL BANK OF BOSTON
By:
Name: Bethann Halligan
Title: Director
100 Federal Street
P. O. Box 2016
Boston, Massachusetts 02106-2016
Telephone: (617) 434-0144
Telecopy: (617) 434-0630 or (617) 434-6685
Person to whom Negotiated Loan correspondence
should be addressed:
Carol Rousseau
Account Administrator
Telephone: (617) 434-5777
Telecopy: (617) 434-0630
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Carol Rousseau
Account Administrator
Telephone: (617) 434-5777
Telecopy: (617) 434-0630
Base Rate Loan Funding Office:
100 Federal Street
U. S. Corporate
Boston, Massachusetts 02106
Eurodollar Loan Funding Office:
100 Federal Street
U. S. Corporate
Boston, Massachusetts 02106
<PAGE>
THE FUJI BANK, LIMITED
By:
Name: Peter L. Chinnici
Title: Joint General Manager
225 West Wacker Drive, Suite 2000
Chicago, Illinois 60606
Telephone: (312) 621-0515
Telecopy: (312) 621-0539
Person to whom Negotiated Loan correspondence
should be addressed:
James Fayen
Assistant Vice President
Telephone: (312) 621-0518
Telecopy: (312) 621-0539
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Cely Havarro
Loans Administration
Telephone: (312) 621-0538
Telecopy: (312) 621-0539
Base Rate Loan Funding Office:
The Fuji Bank, Limited
225 West Wacker Drive, Suite 2000
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
The Fuji Bank, Limited
225 West Wacker Drive, Suite 2000
Chicago, Illinois 60606
<PAGE>
PNC BANK, NATIONAL ASSOCIATION
By:
Name: Jon C. Otterberg
Title: Commercial Banking Officer
500 West Madison Street, Suite 3140
Chicago, Illinois 60661
Telephone: (312) 906-3425
Telecopy: (312) 906-3420
Person to whom Negotiated Loan correspondence
should be addressed:
Jon C. Otterberg
Commercial Banking Officer
Telephone: (312) 906-3425
Telecopy: (312) 906-3420
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Tammy Dunn
Administrative Secretary
Telephone: (312) 906-3403
Telecopy: (312) 906-3420
Base Rate Loan Funding Office:
PNC Bank, N.A.
Fifth Avenue and Wood Street
Pittsburgh, Pennsylvania 15222
Eurodollar Loan Funding Office:
PNC Bank, N.A.
Fifth Avenue and Wood Street
Pittsburgh, Pennsylvania 15222
<PAGE>
THE YASUDA TRUST AND BANKING CO., LTD.
By:
Name: Joseph C. Meek
Title: Vice President and Manager
181 West Madison Street, Suite 4500
Chicago, Illinois 60602
Telephone: (312) 683-3800
Telecopy: (312) 683-3899
Telex: 446831 YTBCH
Person to whom Negotiated Loan correspondence
should be addressed:
Douglas Warren
Vice President
Telephone: (312) 683-3839
Telecopy: (312) 683-3899
Telex: 446831 YTBCH
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Cindy Hartweger
Loan Administration
Telephone: (312) 683-3853
Telecopy: (312) 683-3899
Telex: 446831 YTBCH
Base Rate Loan Funding Office:
181 West Madison Street, Suite 4500
Chicago, Illinois 60602
Eurodollar Loan Funding Office:
181 West Madison Street, Suite 4500
Chicago, Illinois 60602
<PAGE>
THE FIRST NATIONAL BANK OF MARYLAND
By:
Name: James K. Fowler
Title: Vice President
25 South Charles Street
Baltimore, Maryland 21201
Telephone: (410) 244-4208
Telecopy: (410) 244-4294
Person to whom Negotiated Loan correspondence
should be addressed:
James K. Fowler
Vice President
Telephone: (410) 244-4208
Telecopy: (410) 244-4294
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
James K. Fowler
Vice President
Telephone: (410) 244-4208
Telecopy: (410) 244-4294
Base Rate Loan Funding Office:
25 South Charles Street
Baltimore, Maryland 21201
Eurodollar Loan Funding Office:
25 South Charles Street
Baltimore, Maryland 21201
<PAGE>
ISTITUTO BANCARIO SAN PAOLO DI TORINO,
S.P.A.
By:
Name: William DeAngelo
Title: First Vice President
245 Park Avenue
New York, NY 10167
Telephone: (212) 692-3150
Telecopy: (212) 599-5303
Telex: 220045 SPAOL UR
Person to whom Negotiated Loan correspondence
should be addressed:
Michele M. von Kroemer
Assistant Treasurer
Telephone: (212) 692-3196
Telecopy: (212) 599-5303
Telex: 220045 SPAOL UR
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Michele M. von Kroemer
Assistant Treasurer
Telephone: (212) 692-3196
Telecopy: (212) 599-5303
Telex: 220045 SPAOL UR
Base Rate Loan Funding Office:
Istituto Bancario san Paolo Bank di Torino,
S.p.A., New York Branch
245 Park Avenue
New York, New York 10167
Eurodollar Loan Funding Office:
Istituto Bancario san Paolo Bank di Torino,
S.p.A., New York Branch
245 Park Avenue
New York, New York 10167
<PAGE>
KREDIETBANK N.V.
By:
Name: Patricia McCann
Title: Vice President
By:
Name: Robert Snauffer
Title: Vice President and Senior
Credit Officer
125 West 55th Street, 10th Floor
New York, New York 10019
Telephone: (212) 541-0733
Telecopy: (212) 956-5580
Telex: MCI 661572 KREDIETNV
TRT 177789 KREDIETNV
RCA 236777
Person to whom Negotiated Loan correspondence
should be addressed:
Lynda Resuma
Assistant Treasurer
Telephone: (212) 541-0657
Telecopy: (212) 956-5580
Telex: MCI 661572 KREDIETNV
TRT 177789 KREDIETNV
RCA 236777
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Lynda Resuma
Assistant Treasurer
Telephone: (212) 541-0657
Telecopy: (212) 956-5580
Telex: MCI 661572 KREDIETNV
TRT 177789 KREDIETNV
RCA 236777
Base Rate Loan Funding Office, New York:
125 West 55th Street, 10th Floor
New York, New York 10019
<PAGE>
Eurodollar Loan Funding Office, Grand Caymen:
125 West 55th Street, 10th Floor
New York, New York 10019
<PAGE>
UNION BANK OF SWITZERLAND - CHICAGO BRANCH
By:
Name: Walter R. Wolff
Title: First Vice President
30 South Wacker Drive, 40th Floor
Chicago, Illinois 60606
Telephone: (312) 993-5450
Telecopy: (312) 993-5530
Person to whom Negotiated Loan correspondence
should be addressed:
Scott K. Werneburg
Credit Analyst
Telephone: (312) 993-5435
Telecopy: (312) 993-5530
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Scott K. Werneburg
Credit Analyst
Telephone: (312) 993-5435
Telecopy: (312) 993-5530
Base Rate Loan Funding Office:
Union Bank of Switzerland - Chicago Branch
30 South Wacker Drive, 40th Floor
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
Union Bank of Switzerland - Chicago Branch
30 South Wacker Drive, 40th Floor
Chicago, Illinois 60606
<PAGE>
WELLS FARGO BANK, N.A.
By:
Name: John Huber
Title: Vice President
420 Montgomery Street
San Francisco, California 94163
Telephone: (415) 396-2257
Telecopy: (415) 421-1352
Person to whom Negotiated Loan correspondence
should be addressed:
John Huber
Vice President
Telephone: (415) 396-2257
Telecopy: (415) 421-1352
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Gail Landers
Telephone: (415) 396-4915
Telecopy: (415) 989-4319
Base Rate Loan Funding Office:
Wells Fargo Bank, N.A.
420 Montgomery Street
San Francisco, California 94163
Eurodollar Loan Funding Office:
Wells Fargo Bank, N.A.
420 Montgomery Street
San Francisco, California 94163
<PAGE>
BANCA DI ROMA, S.P.A.
By:
Name: Aurora Pensa
Title: Vice President
By:
Name: Joyce Montgomery
Title: Assistant Vice President
225 West Washington Street
Chicago, Illinois 60606
Telephone: (312) 368-8855
Telecopy: (312) 726-3058
Telex: 190190 or 190107
Person to whom Negotiated Loan correspondence
should be addressed:
Aurora Pensa or Margaret Delay
Telephone: (312) 704-2630 or (312) 704-2594
Telecopy: (312) 726-3058
Telex: 190190 or 190107
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Vincenza Geraci
Telephone: (312) 704-2603
Telecopy: (312) 726-3058
Telex: 190190 or 190107
Base Rate Loan Funding Office:
Banca di Roma - Chicago Branch
225 West Washington Street
Chicago, Illinois 60606
Eurodollar Loan Funding Office:
Banca di Roma - Chicago Branch
225 West Washington Street
Chicago, Illinois 60606
<PAGE>
COMERICA BANK
By:
Name: David L. Morrison
Title: Account Officer
500 Woodward Avenue, MC 3279
Detroit, Michigan 48226
Telephone: (313) 222-3808
Telecopy: (313) 222-3330
Person to whom Negotiated Loan correspondence
should be addressed:
Beverly V. Jones
Customer Assistant
Telephone: (313) 222-3805
Telecopy: (313) 222-3330
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Beverly V. Jones
Telephone: (313) 222-3805
Telecopy: (313) 222-3330
Base Rate Loan Funding Office:
Comerica Bank
500 Woodward Avenue, MC 3279
Detroit, Michigan 48226
Eurodollar Loan Funding Office:
Comerica Bank
500 Woodward Avenue, MC 3279
Detroit, Michigan 48226
<PAGE>
BANK OF AMERICA ILLINOIS
By:
Name: M. Kathleen McVay
Title: Authorized Officer
200 West Adams Street, Suite 2800
Chicago, Illinois 60606
Telephone: (312) 269-4644
Telecopy: (312) 269-4540
Person to whom Negotiated Loan correspondence
should be addressed:
M. Kathleen McVay
Senior Vice President
Telephone: (312) 269-4644
Telecopy: (312) 269-4540
Person to whom all Loan Requests (other than
Negotiated Loan Confirmations) should be
addressed:
Pamela Quebbeman
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Telephone: (312) 828-3586
Telecopy: (312) 987-5500
Base Rate Loan Funding Office:
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
Eurodollar Loan Funding Office:
Bank of America Illinois
231 South LaSalle Street
Chicago, Illinois 60697
SCHEDULES AND EXHIBITS
to
SHORT TERM CREDIT AGREEMENT
<PAGE>
SCHEDULE I
BANKS, COMMITMENTS AND TERMINATION DATES
(Sections 1.1, 2.7 and 15.4)
BANK NAME COMMITMENT TERMINATION
DATE
The Bank of New York 19,800,000 September 14, 1995
The Bank of Nova Scotia 19,800,000 September 14, 1995
CIBC Inc. 19,800,000 September 14, 1995
NationsBank of North Carolina 19,800,000 September 14, 1995
The Long-Term Credit Bank of
Japan, Ltd. 18,150,000 September 14, 1995
Credit Lyonnais Chicago Branch
and Credit Lyonnais Cayman
Island Branch 16,500,000 September 14, 1995
The First National Bank of
Chicago 16,500,000 September 14, 1995
Banca Commerciale Italiana,
Chicago Branch 9,900,000 September 14, 1995
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch 9,900,000 September 14, 1995
The Mitsubishi Bank, Limited,
Chicago Branch 9,900,000 September 14, 1995
Bank of America National Trust
and Savings Association 8,250,000 September 14, 1995
Bank of America Illinois 8,250,000 September 14, 1995
The Northern Trust Company 8,250,000 September 14, 1995
The Sakura Bank, Ltd. 8,250,000 September 14, 1995
The Sanwa Bank, Limited,
Chicago Branch 8,250,000 September 14, 1995
Swiss Bank Corporation 8,250,000 September 14, 1995
U.S. National Bank of Oregon 8,250,000 September 14, 1995
The Union Bank 8,250,000 September 14, 1995
ABN AMRO Bank N.V. 6,600,000 September 14, 1995
The First Bank National
Association 6,600,000 September 14, 1995
The First National Bank of
Boston 6,600,000 September 14, 1995
The Fuji Bank, Limited 6,600,000 September 14, 1995
PNC Bank, National Assoociation 6,600,000 September 14, 1995
The Yasuda Trust and Banking
Co., Ltd. 6,600,000 September 14, 1995
The First National Bank of
Maryland 4,950,000 September 14, 1995
Istituto Bancario San Paolo di
Torino, S.p.A., New York Branch 4,950,000 September 14, 1995
Kredietbank N.V. 4,950,000 September 14, 1995
Union Bank of Switzerland,
Chicago Branch 4,950,000 September 14, 1995
Wells Fargo Bank, N.A. 4,950,000 September 14, 1995
Banca di Roma, S.P.A. 3,300,000 September 14, 1995
Comerica Bank 3,300,000 September 14, 1995
297,000,000
<PAGE>
SCHEDULE II
LITIGATION
(Section 10.5)
NONE
<PAGE>
SCHEDULE III
LIENS
(Section 10.7)
Security interests with respect to fixtures (excluding
trade or store fixtures) and documents related to real property
which were granted in connection with a financing of real
property reflected in the financial statements referred to in
Section 10.4.
Security interests with respect to leases which might
be classified for some purposes as conditional sales contracts
but which the Company on its consolidated balance sheets included
in the financial statements referred to in Section 10.4
classified as assets and obligations, respectively, under capital
leases and similar such liens which may have been incurred in
connection with the acquisition of assets after July 2, 1994.
Lien on the Dublin, California retail store property
securing certain indemnities extended by the Company, as
sublessor, and Toys 'R Us, as sublessee, under subleases at
various retail stores where the Company's lessor would not
execute a non-disturbance agreement with Toys 'R Us.
Other liens incurred in the ordinary course of business
which in the aggregate do not exceed $2,000,000.
<PAGE>
SCHEDULE IV
SUBSIDIARIES AND RESTRICTED SUBSIDIARIES
(Section 10.8)
Set forth below is a list of all Subsidiaries of the Company
as of September 15, 1994:
American Delivery Service Company (Del.)
Continental Transportation, Inc. (Del.)
Brandywine DC, Inc. (Fla.)
Brettward Properties Co., Inc. (Md.)
Furniture Investors, Inc. (Del.)
Huga Realty Inc. (Del.)
Jefferson Stores, Inc. (Nev.)
JRI Distributing, Inc. (Del.)
LMR Acquisition Corporation (Mass.)
Lechmere, Inc. (Mass.)
Marcor Housing Systems, Inc. (Del.)
Marinco Insurance U.S.A., Inc. (Vermont)
MF Nevada Investments, Inc. (Nev.)
Michaelward Properties Co., Inc. (Md.)
Montgomery Ward Development Corporation (Del.)
Barretward Properties Co., Inc. (Md.)
First Mont Corporation (Del.)
Gabeward Properties Corporation (Del.)
Garden Grove Development Corporation (Del.)
Joshward Properties Corporation (Del.)
Maryward Properties Corporation (Del.)
Montgomery Ward Land Corporation (Del.)
National Homefinding Service, Inc. (Del.)
Paulward Properties Co., Inc. (Md.)
Robertward Properties Corporation (Del.)
Second Mont Corporation (Del.)
Seventh Mont Corporation (Del.)
618 Corporation (Del.)
619 Corporation (Del.)
The 535 Corporation (Del.)
*University Avenue/Marketplace, Inc. (Del.)
MPI, Inc. (Del.)
*MW Direct General, Inc. (Del.)
*MW Direct Limited, Inc. (Del.)
MW Land Corporation (Del.)
Montgomery Ward Foundation (Ill., not-for-profit)
Montgomery Ward International, Inc. (Del.)
Montgomery Ward Hong Kong, Ltd. (Hong Kong)
Montgomery Ward Commercial Ltda. (Brazil)
Montgomery Ward Properties Corporation (Del.)
Brandywine Properties, Inc. (Del.)
M-W Fairfax Properties, Inc. (Va.)
*2825 Development Corporation (Del.)
Montgomery Ward Realty Corporation (Del.)
Montgomery Ward Securities, Inc. (Del.)
MW-Export, S.A. de C.V. (Mex.)
M-W Prestress, Inc. (Col.)
R M P Development Corporation (N. Mex.)
M-W Properties Corporation (Del.)
Fourth Wycombe Properties, Inc. (Del.)
M-W Restaurants Realty Corporation (Del.)
998 Monroe Corporation (Del.)
Sacward Properties, Inc. (Del.)
7th & Carroll Corporation (Del.)
Signature Financial/Marketing, Inc. (Del.)
Greater California Dental Plan (Calif.)
I.S.S. Agency, Inc. (Del.)
Montgomery Ward Auto Club, Inc. (Del.)
Montgomery Ward Enterprises, Inc. (Del.)
SignatureCard, Inc. (Ind.)
Montgomery Ward Insurance Company (Ill.)
Montgomery Ward Life Insurance Company (Ill.)
Forum Insurance Company (Ill.)
Montgomery Ward Agency, Inc. (Ill.)
Montgomery Ward Clubs, Inc. (Del.)
National Dental Services, Inc. (Del.)
Signature Dental Plan of Florida, Inc. (Fl.)
Signature Investment Advisors, Inc. (Del.)
Signature's Nationwide Auto Club, Inc. (Del.)
Signature Agency, Inc. (Del.)
Signature Agency - Wyoming, Inc. (Wyo.)
The Signature Life Insurance Company of America (Ill.)
Standard T. Chemical Company, Inc. (Del.)
Third Wycombe Properties, Inc. (Del.)
*2825 Realty Corporation (Del.)
Yard-Man Inc. (Del.)
WFL Realty, Inc. (Del.)
Except for those Subsidiaries listed above which are preceded by
an asterisk, the above-listed Subsidiaries are Restricted
Subsidiaries.
<PAGE>
SCHEDULE V
POST-RETIREMENT WELFARE PLAN BENEFITS
(Section 10.9)
The contents of footnote 6, entitled "Retirement Plans," to the
Company's audited consolidated financial statements as at January
1, 1994 are incorporated herein by reference which footnote
addresses the Montgomery Ward & Co., Incorporated Comprehensive
Health Care Plan and certain matters related thereto.
<PAGE>
SCHEDULE VI
SCHEDULE OF TAX SHARING ARRANGEMENTS
AMONG
PARENT AND ITS SUBSIDIARIES
(Section 11.5)
The following principles shall be applied with respect
to the Parent and its Subsidiaries in allocating tax liability
and tax benefits relating to federal, state, local and foreign
taxes:
(a) Payments shall be permitted to be made between
members of an affiliated group filing a federal consolidated
return, within the meaning of the federal income tax laws
and the regulations thereunder, to effectuate an allocation
of the tax liability among members of the affiliated group
in accordance with the principles set forth in 26 C.F.R.
paragraph 1.1552-1 and 26 C.F.R. paragraph 1.1502-33(d) and related
regulations. Similar principles shall apply for state,
local and foreign income and franchise tax purposes where
tax liability is determined on a unitary basis or reportable
on a combined or consolidated return involving more than one
corporation.
(b) The principles described in (a) above may be
modified to the extent necessary to permit allocation of tax
liability to any member on the basis of what would be that
member's stand-alone tax liability, notwithstanding
technical considerations set forth in the regulations.
(c) The determinations of the allocations for tax
liability pursuant to this Schedule shall be made in the
manner determined by the Parent or the Company, without
regard to the actual manner of dealing with the taxing
authorities.
(d) The principles applied pursuant to this Schedule
shall in all material respects be consistently applied from
year to year.
Reference herein to tax liabilities include items of
negative tax liability, i.e., tax benefits.
<PAGE>
SCHEDULE VII
MANAGEMENT INVESTORS
(Section 1.1)
1. Dominic M. Mangone
2. Mary Jo Marando as Trustee of the Joseph Mangone Trust dated
June 19, 1988
3. Mary Jo Marando as Trustee of the Elizabeth Mangone Trust
dated June 19, 1988
4. Mary Jo Marando as Trustee of the Gina Mangone Trust dated
June 19, 1988
5. Mary Jo Marando as Trustee of the Michael Marando Trust
dated June 19, 1988
6. Daniel F. Darr
7. John Bevan
8. William J. McCarthy
9. Henry Goldsmith
10. William Marginson
11. Larry J. Farrar
12. Daniel H. Levy
13. The Alan Mark Levy Irrevocable Trust dated July 11, 1988
14. The Michael Scott Levy Irrevocable Trust dated July 11, 1988
15. Donald L. Docken and Kathleen S. Docken, Trustees or their
successors in trust under the Donald L. Docken Living Trust
dated December 21, 1991
16. Malvin Pavik
17. Alvin Pavik, as Trustee of the Malvin Pavik Family Trust
under Trust Agreement dated September 30, 1988
18. Alvin Pavik, as Trustee of the Alan C. Pavik Trust under
Trust Agreement dated September 30, 1988
19. Alvin Pavik, as Trustee of the James A. Pavik Trust under
Trust Agreement dated September 30, 1988
20. Alvin Pavik, as Trustee of the Paul T. Pavik Trust under
Trust Agreement dated September 30, 1988
21. Alvin Pavik, as Trustee of the Debra L. Porter Trust under
Trust Agreement dated September 30, 1988
22. Alvin Pavik, as Trustee of the Joan L. Geckle Trust under
Trust Agreement dated September 30, 1988
23. Alvin Pavik, as Trustee of the Linda A. Pavik Trust under
Trust Agreement dated September 30, 1988
24. Alvin Pavik, as Trustee of the Douglas T. Pavik Trust under
Trust Agreement dated September 30, 1988
25. Alvin Pavik, as Trustee of the Kimberly S. Pavik Trust under
Trust Agreement dated September 30, 1988
26. Alvin Pavik, as Trustee of Pavik Discretionary Trust under
Trust Agreement dated December 9, 1988
27. Harold D. Kahn
28. Leslie A. Ball
29. Elizabeth Hebb-Sweney
<PAGE>
SCHEDULE VIII
FINDER'S LIST
(Section 1.1)
"Adjusted Commitment" - used in Section 8.2(a)(B).
"Administrative Agent" - used throughout.
"Advisory Agent" - used in the Preamble and in definition of
Agent.
"Affiliate" - used in definition of Funding Office and in
Sections 10.12, 11.2(viii), 14.7, 15.4(a)(iii) and 15.4(d).
"Agent(s)" - used throughout.
"Agent Parties" - used in Section 14.2.
"Aggregate Commitment" - used in definition of Termination Date
and in Sections 2.2(b), 2.6(b), 4.2 and 6.5.
"Agreement" - used throughout.
"Applicable Agent" - used in Sections 8.1(a), 8.4, 9.1(b), 14.4,
15.2(a) and 15.4.
"Assignee(s)" - used in Sections 8.2(c), 14.4(b), 14.6, 15.4(b)
and 15.4(d).
"Assignment" - used in definition of Funding Office and in
Section 15.4(b).
"Authorized Officer" - used in Sections 2.7(e), 11.1(c), 11.1(i),
11.6(iii) and 12.1(a).
"Bank(s)" - used throughout.
"Bank Parties" - used in Section 15.6.
"Base Rate" - used in definition of Base Rate Loan and in
Sections 3.4, 6.1, 6.8 and 14.4.
"Base Rate Loan" - used throughout.
"Business Day" - used throughout.
"Capital Base" - used in definition of Total Capitalization.
"Capitalized Lease Obligations" - used in definition of Debt.
"Change" - used in Section 9.1(b).
"Change of Control" - used in Sections 5, 9.5, 11.1(h), 11.6(vii)
and 13.1(h).
"Class A Common Stock" - used in definitions of Management
Investor and Outstanding Original Shares and in Section 13.1(h).
"Code" - used in definitions of ERISA, ERISA Affiliate and in
Sections 10.9 and 11.8.
"Commitment" - used throughout.
"Company" - used throughout.
"Company Register" - used in Section 8.5.
"Conditional Sale Obligations" - used in definition of
Indebtedness for Borrowed Money.
"Consolidated Net Income" - used in definition of Ratio of
Earnings to Fixed Charges and in Sections 11.3, 11.5(ii) and
15.3(b).
"Consolidated Shareholder's Equity" - used in definition of
Capital Base and in Sections 11.3 and 15.3(b).
"Continue", "Continuation" and "Continued" - used in definition
of Interest Period and in Sections 1.2, 7.2, 9.3, 9.5, 12.2 and
15.2(a).
"Conversion Notice" - used in Sections 6.4(b) and 7.2.
"Convert", "Conversion" and "Converted" - used in definition of
Interest Period and in Sections 1.2, 6.3, 7.2, 9.3, 9.5, 12.2 and
15.2(a).
"Corporate Transactions" - used in Section 11.6.
"Debt" - used in definition of Total Capitalization and in
Sections 11.4, 11.6, 11.17, 11.18 and 15.3(b).
"Debt-Like Preferred Stock" - used in definition of Total
Capitalization and in Sections 11.5, 11.18 and 13.1(h).
"Displaced Loans" - used in Section 6.6.
"Documentary Agent" - used in Preamble and in Sections 12.1,
15.5(a) and 15.11.
"Dollar(s)" and the sign "$" - used throughout.
"Effective Date" - used throughout.
"Equalization Amount" - used in Section 8.4(c).
"ERISA" - used in definitions of ERISA Affiliate, Finance
Obligations, Multiemployer Plan, PBGC, Plan, Reportable Event and
Welfare Plan, and in Sections 10.9 and 11.8.
"ERISA Affiliate" - used in definition of Multiemployer Plan and
Plan and in Sections 10.9 and 11.8.
"Eurocurrency Reserve Percentage" - used in the definition of
Eurodollar Rate (Reserve Adjusted).
"Eurodollar Loan" - used throughout.
"Eurodollar Margin Increment" - used in Sections 6.1(b), 6.2, 6.3
and 6.9.
"Eurodollar Rate" - used in various definitions and in
Sections 6.1(b), 6.4(b), 7.1(a), 7.2, 9.1(a), 9.3 and 9.6(a).
"Eurodollar Rate (Reserve Adjusted)" - used in various
definitions and in Section 9.1.
"Event of Default" - used throughout.
"Existing Credit Agreements" - used in Sections 10.18 and 12.1.
"Existing Termination Date" - used in Section 2.7.
"Extension Banks" - used in Section 2.7.
"Extension Reply" - used in Section 2.7.
"Extension Request" - used in Section 2.7, 4.1 and 15.4(e).
"FAS 106 Capital Base Factor" - used in definition of Capital
Base.
"FAS 106 Minimum Equity Factor" - used in Section 11.3.
"FAS 106 Restricted Payment Factor" - used in Section 11.5.
"Federal Funds Rate" - used in definition of Base Rate and in
Sections 4.3, 7.1(i) and 14.4.
"Fee Increase" - used in Section 6.9.
"Finance Obligations" - used in Section 13.1(c).
"Fiscal Quarter" - used throughout.
"Fiscal Year" - used throughout.
"Fixed Rate Loan(s)" - used in Sections 6.1, 8.1, 9.2, 9.4, 9.5
and 9.6.
"Funding Date" - used in definition of Interest Period and in
Sections 1.2, 4.3, 6.1, 7.1, and 14.4.
"Funding Office" - used in definition of Base Rate and in
Sections 3.3, 3.4, 4.3, 7.1, 8.4, 9.1, 9.2 and 9.6.
"GAAP" - used throughout.
"GE Capital" - used in definitions of MWCC Receivables Purchase
Agreement and Qualified Purchaser.
"Group" - used in Sections 1.2, 2.2, 7.2, 8.1 and 8.5.
"Guaranty" - used in definitions of Debt, Finance Obligations,
Indebtedness for Borrowed Money, MWCC Receivables Purchase
Agreement.
"Indebtedness for Borrowed Money" - used in definitions of Debt
and Finance Obligation and in Section 11.2(xix).
"Indemnified Liabilities" - used in Section 15.6.
"Interest Period" - used throughout.
"Liabilities" - used in definitions of Debt-Like Preferred Stock
and Subordinated Debt and in Sections 5, 8.2, 8.3, 8.4, 11.6(i),
13.2, 14.2, 15.4(e) and 15.6.
"Lien" - used in definition of Indebtedness for Borrowed Money
and in Sections 10.2, 10.6, 10.7, 11.2, 11.6(i) and 13.1(h).
"Litigation" - used in definition of Material Litigation and in
Section 11.1(g).
"Loan Request" - used in Sections 4.3(b), 6.4(b), 7.1 and 15.2.
"Loans" - used throughout.
"Long Term Credit Agreement" - used in Sections 3.2, 11.2(xii),
12.1(a)(i), 12.1(b), 13.1(k), 15.4(b) and 15.4(e).
"Management Investor" - used in definitions of Outstanding
Original Shares and Qualified Purchaser.
"Margin Stock" - used in Sections 10.12, 11.16 and 15.7.
"Master Register" - used in Sections 8.5 and 15.2(a).
"Material Litigation" or "Material Litigation Development" - used
in Section 10.5.
"Maturity Date" - used in definition of Subordinated Debt and in
Sections 2.4, 6.3 and 8.2(c).
"Mobil" - used in Section 10.14(c).
"MWCC" - used in definition of MWCC Receivables Purchase
Agreement and in Sections 13.1(j) and 15.3(c).
"MWCC Receivables Purchase Agreement" - used in definition of
Material Litigation and in Sections 11.1, 11.2, 13.1 and 15.3.
"Multiemployer Plan" - used in Section 11.8.
"Negotiated Loan Agent" - used in Preamble and in definitions of
Applicable Agent and Funding Office and in Sections 4.3, 4.4,
8.2(b), 8.5, 9.3(b) and 9.5.
"Negotiated Loan Confirmation" - used in definitions of Funding
Office, Interest Period and Loan Request and in Sections 4.3,
4.4, 6.8, 8.1(b), 9.3, 9.8 and 15.2.
"Negotiated Loan Register" - used in Section 8.5.
"Negotiated Loans" - used throughout.
"Negotiated Note(s)" - used in definition of Notes and in
Sections 4.5, 12.1(ii) and 15.4(b).
"Non-Restricted Subsidiary" - used throughout.
"Non-United States Person" - used in Sections 8.4(b) and 15.4(b).
"Notes" - used throughout.
"Outstanding Original Shares" - used in definition of Change of
Control.
"Parent" - used in definitions of Change of Control, Class A
Common Stock, Management Investors, Outstanding Original Shares,
Parent Shareholder's Agreement, Qualified Purchaser and Total
Capitalization and in Sections 10.5, 10.12, 10.14(b), 11.1(e),
11.1(g), 11.5, 11.5(vi), 11.5(y), 13.1(c), 13.1(h) and 15.4(c).
"Parent Shareholders' Agreement" - used in the definition of
Outstanding Original Shares.
"Participant(s)" - used in Sections 8.2, 14.6 and 15.4.
"Payment Sharing Notice" - used Sections 8.2 and 8.5(b).
"PBGC" - used in Section 11.8.
"Percentage" - used in Section 2.1, 2.2(a), 7.2(a), 8.1(b) and
8.5(b).
"Permitted Lien" - used throughout.
"Person" - used throughout.
"Plan" - used in Sections 10.9 and 11.8.
"Qualified Purchaser" - used in definition of Change of Control.
"Ratio of Earnings to Fixed Charges" - used in definition of
Ratio Period and in Sections 6.2, 6.5, 6.9, 11.3 and 15.3(b).
"Ratio Period" - used throughout.
"Reference Banks" - used definition of Eurodollar Rate and in
Sections 6.4 and 9.3.
"Regulation D" - used in definition of Eurocurrency Reserve
Percentage and in Sections 9.1 and 9.2.
"Regulation U" - used in definition of Margin Stock and in
Sections 10.12, 11.16 and 15.7.
"Regulation X" - used in definition of Margin Stock and in
Section 10.12.
"Renewed Termination Date" - used in Section 2.7.
"Replacement Agreement" - used in Section 15.4(e).
"Replacement Bank" - used in Section 15.4(d).
"Reply Date" - used in Section 2.7.
"Reportable Event" - used throughout.
"Required Banks" - used in definition of Subordinated Debt and in
Sections 5, 9.3(b), 11, 12.1(a), 12.2, 13.1(j), 13.2, 14.1, 14.3,
14.8, 15.1 and 15.5(a).
"Restricted Payment" - used in definition of Total Capitalization
and in Section 11.5.
"Restricted Subsidiary" - used throughout.
"Revocation Cut-Off Date" - used in Sections 2.7 and 15.4(e).
"Revolving Loans" - used throughout.
"Revolving Loan Request" - used in Section 7.1.
"Revolving Note" - used throughout.
"Risk-Based Capital Guidelines" - used in Section 9.1(b).
"SEC" - used in definition of Change of Control and Section 11.
"Secured Indebtedness" - used in Section 11.2(xix).
"Special Restricted Subsidiary" - used in Section 13.1.
"Subordinated Debt" - used in definitions of Capital Base, Debt
and Total Capitalization and in Section 11.17.
"Subsidiary" - used throughout.
"Successor to Parent" - used in definition of Parent and in
Section 13.1(h).
"Swing Loan(s)" - used throughout.
"Swing Loan Bank" - used in Sections 3.3, 3.4, 3.6 and 8.1.
"Swing Loan Percentage" - used in Section 3.6.
"Swing Loan Request" - used in definition of Loan Request and in
Section 3.3.
"Swing Note(s)" - used in definition of Notes and in Section 3.5,
12.1(a)(ii) and 15.4(b).
"Tax Benefit" - used in Section 8.4(c).
"Taxes" - used in Section 8.4.
"Terminated Bank" - used in Section 15.4(e).
"Termination Date" - used in definitions of Interest Period and
Maturity Date and in Sections 2.1, 2.7, 3.4, 4.1, 6.5, 6.6 and
15.4(e).
"Total Capitalization" - used in Sections 11.4, 11.6 and 15.3(b).
"Type" - used in definition of Funding Office and in Sections
1.2, 6.8, 7.2 and 8.5.
"Unmatured Event of Default" - used in definition of Restricted
Subsidiary and in Sections 2.7(e), 10.15, 11.1, 11.5, 11.6,
11.17, 11.18, 12.1, 12.2(a), 14.5, 14.8(b) and 15.4(e).
"Unused" - used in Sections 2.2(a), 3.2, 6.5 and 6.6.
"Welfare Plan" - used in Section 10.9.<PAGE>
EXHIBIT A
FORM OF REVOLVING NOTE
(Section 2.5)
$ September 15, 1994
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned hereby promises to pay
to the order of
(the "Bank") at the office of the Administrative Agent specified
in the Credit Agreement hereinafter referred to, the principal
amount of DOLLARS ($ ) or, if less, the
aggregate unpaid principal amount of all Revolving Loans made by
the Bank to the undersigned pursuant to the Credit Agreement (as
shown in the records of the Bank or, at the Bank's option, on the
schedule attached hereto and any continuation thereof). The
principal amount of each Revolving Loan evidenced hereby shall be
payable on or before the Bank's Maturity Date.
The undersigned further promises to pay interest on the
unpaid principal amount of each Revolving Loan evidenced by this
Note from the date of such Revolving Loan until such Revolving
Loan is paid in full, payable at such rate(s) and at such time(s)
as provided in the Credit Agreement.
This Note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Short Term Credit
Agreement dated as of September 15, 1994 (as the same may be
amended, modified or supplemented from time to time, the "Credit
Agreement"), among the undersigned, certain banks (including the
Bank) and certain agents (including the Administrative Agent), to
which Credit Agreement reference is hereby made for a statement
of said terms and provisions. Terms used but not otherwise
defined herein are used herein as defined in the Credit
Agreement.
In addition to and not in limitation of the foregoing, but
subject to the provisions of the Credit Agreement, the
undersigned further agrees to pay on demand all attorneys' fees
and legal expenses (including allocated costs of staff counsel)
incurred by the holder of this Note in connection with the
enforcement of this Note, and any and all amendments,
modifications, replacements or restatements relating to this
Note.
This Note is made under and governed by the laws of the
State of Illinois without regard to conflict of laws principles.
MONTGOMERY WARD & CO., INCORPORATED
By
Title
<PAGE>
Schedule attached to Revolving Note dated September 15, 1994 of
MONTGOMERY WARD & CO., INCORPORATED payable to the order of
.
Date of Loan, Interest
Conversion or Interest Amount of Rate Per Amount ofNotation
Continuation Period Loan Annum Payment Made By
<PAGE>
EXHIBIT B
FORM OF EXTENSION REQUEST
(Section 2.7)
[Date]
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Documentary Agent
One First National Plaza
Chicago, Illinois 60670
THE BANK OF NOVA SCOTIA,
individually and as Administrative Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
THE BANK OF NEW YORK,
individually and as Negotiated Loan Agent
One Wall Street
New York, New York 10286
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
individually and as Advisory Agent
600 Peachtree NE, Suite 2700
Atlanta, Georgia 30308
The Banks listed on Schedule I
attached hereto and parties to the
Credit Agreement referred to below
Gentlemen:
This constitutes an Extension Request pursuant to the Short
Term Credit Agreement dated as of September 15, 1994 (as amended,
modified or supplemented, the "Credit Agreement"), among
Montgomery Ward & Co., Incorporated (the "Company"), the banks
named therein and the agents named therein. Terms not otherwise
expressly defined herein shall have the meanings set forth in the
Credit Agreement.
The Company hereby requests that the Termination Date
be extended to ________________, 19__. The Company hereby
further requests that you indicate your consent to this requested
extension by executing both copies of the enclosed Extension
Reply and returning one copy to the Company and one copy to The
Bank of Nova Scotia by not later than _____________, 19___.
Very truly yours,
MONTGOMERY WARD & CO.,
INCORPORATED
By:
Its:
<PAGE>
SCHEDULE I
To Extension Request dated ______________, 19__
<PAGE>
EXHIBIT C
FORM OF EXTENSION REPLY
(Section 2.7)
[Bank's Letterhead]
[Dated on or before the Reply Date]
Montgomery Ward & Co., Incorporated
Montgomery Ward Plaza
844 North Larrabee
Chicago, Illinois 60671
Attention: Treasurer
The Bank of Nova Scotia,
as Administrative Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
Re: Montgomery Ward & Co., Incorporated
Ladies and Gentlemen:
The undersigned, pursuant and subject to the provisions of
that certain Short Term Credit Agreement dated as of September
15, 1994 (as amended, modified or supplemented, the "Credit
Agreement"), among Montgomery Ward & Co., Incorporated (the
"Company"), the banks named therein and the agents named therein
hereby [consents to] [does not consent to] the Extension Request
of the Company dated , 19 .
Very truly yours,
[name of Bank]
By:
Its:
<PAGE>
EXHIBIT D
FORM OF SWING NOTE
(Section 3.5)
$ September 15, 1994
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned hereby promises to pay
to the order of ____________________________ (the "Bank") at the
Bank's office specified in the Credit Agreement hereinafter
referred to, the principal amount of DOLLARS
($__________) or, if less, the aggregate unpaid principal amount
of all Swing Loans made by the Bank to the undersigned pursuant
to the Credit Agreement (as shown in the records of the Bank or,
at the Bank's option, on the schedule attached hereto and any
continuation thereof). The principal amount of each Swing Loan
evidenced hereby shall be payable on the dates specified in the
Credit Agreement and in any event, on or before the Bank's
Termination Date.
The undersigned further promises to pay interest on the
unpaid principal amount of each Swing Loan evidenced by this Note
from the date of such Swing Loan until such Swing Loan is paid in
full, payable at such rate(s) and at such time(s) as provided in
the Credit Agreement.
This Note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Short Term Credit
Agreement dated as of September 15, 1994 (as the same may be
amended, modified or supplemented from time to time, the "Credit
Agreement"), among the undersigned, certain banks (including the
Bank) and certain agents, to which Credit Agreement reference is
hereby made for a statement of said terms and provisions. Terms
used but not otherwise defined herein are used herein as defined
in the Credit Agreement.
In addition to and not in limitation of the foregoing, but
subject to the provisions of the Credit Agreement, the
undersigned further agrees to pay on demand all attorneys' fees
and legal expenses (including allocated costs of staff counsel)
incurred by the holder of this Note in connection with the
enforcement of this Note, and any and all amendments,
modifications, replacements or restatements relating to this
Note.
This Note is made under and governed by the laws of the
State of Illinois without regard to conflict of laws principles.
MONTGOMERY WARD & CO., INCORPORATED
By_________________________________
Title______________________________
<PAGE>
Schedule attached to Swing Note dated September 15, 1994 of
MONTGOMERY WARD & CO., INCORPORATED payable to the order of
___________________________.
Interest
Date of Maturity Amount of Rate Per Amount of Notation
Loan Date Loan Annum Payment Made By
<PAGE>
EXHIBIT E
FORM OF NEGOTIATED NOTE
(Section 4.5)
$__________________________ September 15, 1994
Chicago, Illinois
FOR VALUE RECEIVED, the undersigned hereby promises to pay
to the order of
(the "Bank") at the office of
the Negotiated Loan Agent specified in the Credit Agreement
hereinafter referred to, the principal amount of ______________
MILLION DOLLARS ($________________) or, if less, the aggregate
unpaid principal amount of all Negotiated Loans made by the Bank
to the undersigned pursuant to the Credit Agreement (as shown in
the records of the Bank or, at the Bank's option, on the schedule
attached hereto and any continuation thereof). The principal
amount of each Negotiated Loan evidenced hereby shall be payable
at the expiration of the Interest Period applicable thereto and,
in any event, on or before the Bank's Maturity Date.
The undersigned further promises to pay interest, at the
office of the Bank specified in the Credit Agreement, on the
unpaid principal amount of each Negotiated Loan from the date of
such Negotiated Loan until such Negotiated Loan is paid in full,
payable at such rate(s) and at such time(s) as provided in the
Credit Agreement.
This Note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Short Term Credit
Agreement dated as of September 15, 1994 (as the same may be
amended, modified or supplemented from time to time, the "Credit
Agreement"), among the undersigned, certain banks (including the
Bank) and certain agents (including the Negotiated Loan Agent),
to which Credit Agreement reference is hereby made for a
statement of said terms and provisions. Terms used but not
otherwise defined herein are used herein as defined in the Credit
Agreement.
In addition to and not in limitation of the foregoing, but
subject to the provisions of the Credit Agreement, the
undersigned further agrees to pay on demand all attorneys' fees
and legal expenses (including allocated costs of staff counsel)
incurred by the holder of this Note in connection with the
enforcement of this Note and any and all amendments,
modifications, replacements or restatements relating to this
Note.
This Note is made under and governed by the laws of the
State of Illinois without regard to conflict of laws principles.
MONTGOMERY WARD & CO., INCORPORATED
By_________________________________
Title______________________________
<PAGE>
Schedule attached to Negotiated Loan Note dated September 15,
1994 of MONTGOMERY WARD & CO., INCORPORATED payable to the order
of ______________________________.
Date Interest
of Interest Maturity Amount of Rate Per Amount ofNotation
Loan Period Date Loan Annum Payment Made By
<PAGE>
EXHIBIT F
FORM OF REVOLVING LOAN REQUEST
(Section 7.1)
____________________, 19__
THE BANK OF NOVA SCOTIA,
as Administrative Agent
Atlanta Agency
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
Attention: __________________
Ladies and Gentlemen:
This constitutes a Revolving Loan Request for Revolving
Loans under and as defined by the Short Term Credit Agreement,
dated as of September 15, 1994 (as amended, modified or
supplemented, the "Credit Agreement"), among Montgomery Ward &
Co., Incorporated (the "Company"), the Banks and Agents referred
to therein and The Bank of Nova Scotia, as Administrative Agent.
Terms not otherwise expressly defined herein shall have the
meanings set forth in the Credit Agreement.
The Company hereby requests the following Revolving Loans,
on the terms and subject to the conditions of the Credit
Agreement:
(a) Aggregate Principal Amount: $_______________.
(b) Funding Date:_______________, 19__.
[(d) Interest Period:_______________ months.]
The Company hereby certifies, represents and warrants to the
Agents and the Banks as follows:
(i) no Event of Default or Unmatured Event of Default
has occurred and is continuing as of the date hereof or
shall result from the making of the Loans requested hereby,
(ii) the Company's representations and warranties
contained in Sections 10.1, 10.2, 10.3, 10.4(a), 10.7,
10.10, 10.11, 10.12, 10.15, and 10.18 of the Credit
Agreement shall be true and correct as of the Funding Date
of the Loans requested hereby with the same effect as though
made on such date, and
(iii) all conditions to the making of the Loans
requested herein will be satisfied as of the Funding Date of
such requested Loans.
Very truly yours,
MONTGOMERY WARD & CO., INCORPORATED
By:___________________________
Its:_______________________________
cc: The Bank of Nova Scotia
Chicago Representative Office
181 West Madison Street, Suite 3700
Chicago, Illinois 60602
<PAGE>
EXHIBIT G
FORM OF SWING LOAN REQUEST
(Section 3.3)
, 19__
THE BANK OF NOVA SCOTIA,
as Administrative Agent
Atlanta Agency
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
Attention:
______________________, as
Swing Loan Bank
[Address]
Ladies and Gentlemen:
This constitutes a Swing Loan Request under that certain
Short Term Credit Agreement, dated as of September 15, 1994 (as
amended, modified or supplemented, the "Credit Agreement"), among
Montgomery Ward & Co., Incorporated (the "Company"), and the
Banks and Agents referred to therein. Terms not otherwise
expressly defined herein shall have the meanings set forth in the
Credit Agreement.
The Company hereby requests a Swing Loan, subject to the
terms of the Credit Agreement, as follows:
(a) Funding Date: , 19__.
(b) Aggregate principal amount of Loan requested:
$
(c) Interest Period ending date: ,
19__.
The Company hereby certifies, represents and warrants to the
Agents and the Banks as follows:
(i) no Event of Default or Unmatured Event of Default
has occurred and is continuing as of the date hereof or
shall result from the making of the Swing Loan requested
hereby,
(ii) the Company's representations and warranties
contained in Sections 10.1, 10.2, 10.3, 10.4(a), 10.7,
10.10, 10.11, 10.12, 10.15, and 10.18 of the Credit
Agreement shall be true and correct as of the date of the
making of the Swing Loan requested hereby with the same
effect as though made on such date, and
(iii) all conditions to the making of the Swing Loan
requested hereby will be satisfied as of the Funding Date of
such requested Swing Loan.
Very truly yours,
MONTGOMERY WARD & CO., INCORPORATED
By:
Its:
cc: The Bank of Nova Scotia
Chicago Representative Office
181 West Madison Street, Suite 3700
Chicago, Illinois 60602
<PAGE>
EXHIBIT H
FORM OF NEGOTIATED LOAN CONFIRMATION
(Section 4.3)
, 19__
_____________________,
as Negotiated Loan Bank
_____________________
_____________________
Ladies and Gentlemen:
This constitutes a Negotiated Loan Confirmation under that
certain Short Term Credit Agreement, dated as of September 15,
1994 (as amended, modified or supplemented, the "Credit
Agreement"), among Montgomery Ward & Co., Incorporated (the
"Company") and the Banks and Agents referred to therein. Terms
not otherwise expressly defined herein shall have the meanings
set forth in the Credit Agreement.
The Company hereby confirms its request for a Negotiated
Loan, subject to the terms of the Credit Agreement, as follows:
(a) Funding Date: , 19__.
(b) Principal amount of Negotiated Loan requested:
$__________________.
(c) Interest Period ending date: , 19__.
(d) Interest Rate: ______________; payable on
_____________.
(e) Interest calculated on a 360 day year or 365
day year .
(f) [The Negotiated Loan may be prepaid at any time
without premium or penalty]. [Upon the prepayment
of the Negotiated Loan prior to maturity, the
Company shall also pay the following prepayment
premium ____________.]
(g) Funding office: ________________________________.
(h) Sections 9.1 through 9.6 apply to the Negotiated
Loan requested hereby [ ].
(i) Other terms: ____________________________________
_________________________________________________.
The Company hereby reaffirms that all provisions of the
Credit Agreement, including without limitation Sections 11 and 13
thereof, apply to the Negotiated Loan requested hereby and
certifies, represents and warrants to the Agents and the Banks as
follows:
(i) no Event of Default or Unmatured Event of Default
has occurred and is continuing as of the date hereof or
shall result from the making of the Negotiated Loan
requested hereby,
(ii) the Company's representations and warranties
contained in Sections 10.1, 10.2, 10.3, 10.4(a), 10.7,
10.10, 10.11, 10.12, 10.15, and 10.18 of the Credit
Agreement shall be true and correct as of the date of the
making of the Negotiated Loan requested hereby with the same
effect as though made on such date, and
(iii) all conditions to the making of the Negotiated
Loan requested herein have been or will be satisfied as of
the Funding Date of such requested Negotiated Loan.
Very truly yours,
MONTGOMERY WARD & CO., INCORPORATED
By:
Its:
Acknowledged and Agreed this
____ day of ___________ 19__.
[Name of Bank]
By:__________________________
Its:_________________________<PAGE>
EXHIBIT I
FORM OF OFFICER'S CERTIFICATE
(Section 11.1(c))
To: The Banks and the Agents
parties to the Credit Agreement
referred to below
This Certificate is furnished pursuant to Section 11.1(c) of
the Short Term Credit Agreement, dated as of September 15, 1994
(the "Credit Agreement") among Montgomery Ward & Co.,
Incorporated, an Illinois corporation (the "Company"), the banks
named therein (the "Banks") and the agents named therein (the
"Agents"). Capitalized terms used herein but not otherwise
defined herein shall have the same meanings as those assigned to
them in the Credit Agreement.
I hereby certify to the Banks and the Agents, on behalf of
the Company, as follows:
1. Since _______________, 19__, I have been the duly
qualified and acting ____________ of the Company, and I am
familiar with the financial statements and financial affairs of
the Company. I am authorized to execute this Certificate on
behalf of the Company.
2. A true and correct copy of the [annual audit report]
[quarterly unaudited consolidated financial statement] of the
Company and its Subsidiaries for the [Fiscal Year] [Fiscal
Quarter] ended on _______________, 19__, is attached hereto as
Annex A.
3. To the best of my knowledge, as of the date of this
Certificate, no Event of Default or Unmatured Event of Default
has occurred and is continuing [except as follows: [include
description of any such event and the steps being taken, if any,
with respect thereto]].
4. Attached hereto as Annex B is a true and correct
computation, to the best of my knowledge, as of the dates
referred to therein of the financial ratios and/or financial
restrictions contained in Sections 11.3, 11.4 and 11.5 of the
Credit Agreement and of the Ratio of Earnings to Fixed Charges.
5. Attached hereto as Annex C is a complete description (to
the extent such disclosure would be required to be made by the
Company if the Company were a public reporting company under the
Securities Exchange Act of 1934, as amended) to the best of my
knowledge, as of the date of this Certificate of any Material
Litigation which has been instituted or any Material Litigation
Development which has occurred since the date of the most recent
Officer's Certificate of the Company [or, in the case of the
first Officer's Certificate, since the Effective Date].
6. Attached hereto as Annex D is a true, correct and
complete list, to the best of my knowledge, as of the date of
this Certificate of any [changes in the list of Restricted
Subsidiaries (excluding Special Restricted Subsidiaries) which
have occurred since the date of the most recent Officer's
Certificate [or, in the case of the first Officer's Certificate,
since the Effective Date]] [changes in the list of the
Company's Subsidiaries or in the list of Restricted Subsidiaries
which have occurred since the date of the Officer's Certificate
of the Company dated as of the close of the Company's immediately
preceding Fiscal Year [or, in the case of the first Officer's
Certificate dated as of the close of the Fiscal Year containing
the Effective Date, since the Effective Date]].
IN WITNESS WHEREOF, I have hereunto set my hand this ____
day of _______________, 19__.
___________________________
Name:_________________________
Title:________________________
of Montgomery Ward
& Co., Incorporated
<PAGE>
ANNEX A
TO OFFICER'S CERTIFICATE DATED AS OF , 19
[Attach copy of annual audit report or quarterly unaudited
consolidated financial statement, as appropriate]
<PAGE>
ANNEX B TO
EXHIBIT I
TO OFFICER'S CERTIFICATE DATED AS OF , 19
1. Section 11.3 - Minimum Consolidated Shareholder's Equity as
of the end of Fiscal Year ended as of the date of this
Officer's Certificate.
(a) 25% of Consolidated Net Income for each
complete Fiscal Year ended after
January 1, 1994 in which there
was income. $______
(b) FAS 106 Minimum Equity Factor $______
(c) $441,000,000 plus Item 1(a) less
Item 1(b). $______
(d) The lesser of (i) $800,000,000 less
the FAS 106 Minimum Equity Factor or
(ii) Item 1(c) is the Minimum
Consolidated Shareholder's Equity
for the Fiscal Year ended as of the
date of this Officer's Certificate. $______
(e) Actual Consolidated Shareholder's Equity
of the Company for Fiscal Year ended as
of the date of this Officer's Certificate
(such amount to be equal to or
greater than the amount shown in
Item 1(d)). $______
2. Section 11.3 - Minimum Consolidated Shareholder's Equity at
the end of Fiscal Quarter ended as of the date of this
Officer's Certificate.
(a) 50% of the Consolidated Net Income for
each complete Fiscal Year ended after
January 1, 1994 in which there was income,
and for the period commencing immediately
following the close of the last complete
Fiscal Year and ending as of the date of
this Officer's Certificate. $______
(b) $537,000,000 plus the amount in Item 2(a). $______
(c) The lesser of $1,000,000,000 and Item 2(b)
is the Minimum Consolidated Shareholder's
Equity for the Fiscal Quarter ended as of
the date of this Officer's Certificate. $______
(d) Actual Consolidated Shareholder's Equity
of the Company for Fiscal [Year] [Quarter]
ended as of the date of this Officer's
Certificate (such amount to be equal to
or greater than the amount shown in
Item 2(c)). $______
3. Section 11.4 - Debt to Total Capitalization
(a) Debt of the Company and Restricted
Subsidiaries as of the date of this
Officer's Certificate:
(i) Indebtedness for Borrowed Money. $______
(ii) Capitalized Lease Obligations. $______
(iii) Without double counting for items
covered in (i) and (ii),
Capitalized Lease Obligations of
Non-Restricted Subsidiaries for
which the Company or a Restricted
Subsidiary is liable directly or
indirectly under a Guaranty. $______
(iv) Subordinated Debt. $______
(v) Items (i) plus (ii) plus
(iii) less Item (iv) equals Debt. $______
(b) Capital Base as of the date of this
Officer's Certificate:
(i) Subordinated Debt. $______
(ii) Consolidated Shareholder's Equity. $______
(iii) FAS 106 Capital Base Factor. $______
(iv) All outstanding advances by the
Company to, and investment of the
Company in, Non-Restricted Sub-
sidiaries. $______
(v) Value of all treasury stock of the
Company carried as an asset. $______
(vi) The aggregate amount of all general
intangibles of the Company and its
Restricted Subsidiaries. $______
(vii) Item 3(b)(i) plus Item 3(b)(ii) plus
Item 3(b)(iii) less Items 3(b)(iv),
3(b)(v) and 3(b)(vi) equals the
Capital Base. $______
(c) Debt-Like Preferred Stock. $______
(d) Total Capitalization as of the date of
this Officer's Certificate - the sum of
Debt (Item 3(a)(v)) plus Capital Base
(Item 3(b)(vii)) plus Debt-Like Preferred
Stock (Item 3(c)) equals Total
Capitalization. $______
(e) Debt to Total Capitalization. Divide
Debt of Company and Restricted Subsidiaries
(Item 3(a)(v)) by Total Capitalization
of the Company and Restricted Subsidiaries
(Item 3(d)), and express result as a
percentage (such percentage is not to
exceed (i) 60% as of last day of any
Fiscal Quarter or (ii) 50% as of the last
day of any Fiscal Year). ______%
4. Ratio of Earnings to Fixed Charges for the Ratio Period
ended as of the date of this Officer's Certificate
(a) Each of the following items to be for
the Company and its Subsidiaries for
the Ratio Period ended as of the date
of this Officer's Certificate:
(i) Net income. $______
(ii) Interest income. $______
(iii) Income taxes. $______
(iv) Interest expense. $______
(v) Depreciation and amortization. $______
(vi) Rental expense. $______
(b) Item 4(a)(i) less Item 4(a)(ii) and
plus Items 4(a)(iii), 4(a)(iv), 4(a)(v)
and 4(a)(vi). $______
(c) Sum of the excess of all interest expense
over interest income plus all rental
expense for the Company and its Subsidiaries
and capital expenditures (other
than asset additions under capital leases
determined in accordance with GAAP,
(except as set forth in Section 15.3)) of
the Company and its Subsidiaries payable
with respect to the Ratio Period ended
as of the date of this Officer's
Certificate. $______
(d) Ratio of Earnings to Fixed Charges
(ratio of Item 4(b) to Item 4(c)). ___:___
5. Section 11.5 - Purchase, Redemption, Dividends, etc.
(a) The sum of all of the following which have
been paid or made subsequent to January 1,
1994 on or before the date of this
Officer's Certificate (but excluding any
dividends, distributions, purchases,
redemptions and other acquisitions or
retirements of Debt-Like Preferred Stock
of the Company):
(i) dividends or distributions on
any capital stock of the
Company (other than stock
dividends or splits), $______
(ii) increase in outstanding loans and
advances to the Parent since
January 1, 1994, $______
(iii)purchases, redemptions or other
acquisitions of any shares of
capital stock of the Company
by the Company (other than for
Debt-Like Preferred Stock), and $______
(iv) purchases, redemptions or other
acquisitions of any shares of
capital stock of the Company (other
than for Debt-Like Preferred Stock)
by a Subsidiary. $______
(v) Total Restricted Payments. $______
deficit) of Consolidated Net Income of
the Company and its Subsidiaries for the
period, taken as one accounting period,
from and including January 2, 1994, to
the end of the Company's Fiscal Quarter
ended as of the date of this Officer's
Certificate. $______
(c) Decrease in outstanding loans and
advances to the Parent since January 1,
1994. $______
(d) Any capital contributions received by the
Company after January 1, 1994. $______
(e) The net proceeds to the Company (in cash
or, if the consideration is other then
cash, the fair value thereof as determined
by the Board of Directors of the Company)
of the issue or sale after January 1,
1994 of capital stock, including treasury
stock but excluding Debt-Like Preferred
Stock, of the Company. $______
(f) An amount equal to the net proceeds to the
Company (in cash or, if the consideration
is other than cash, the fair value thereof
as determined by the Board of Directors)
from the issue or sale at any time of any
indebtedness of the Company or a
Subsidiary which, after January 1, 1994,
is converted into shares of capital stock
(but excluding Debt-Like Preferred Stock)
of the Company or the Parent. $______
(g) FAS 106 Restricted Payment Factor $______
(h) $63,000,000 plus the sum of Items 5(b),
5(c), 5(d), 5(e), 5(f) and 5(g). The amount
of this Item 5(h) must be greater than
the amount of Item 5(a)(v). $______
<PAGE>
ANNEX C
TO OFFICER'S CERTIFICATE DATED AS OF , 19
[Description of any Material Litigation or Material
Litigation Development to the extent such disclosure would be
required to be made by the Company if the Company were a
reporting company under the Securities Exchange Act of 1934.]
See the [Annual Report on Form 10-K] [Quarterly Report on
Form 10-Q] of the [Company] [Parent] for the period ended as of
the date of this Officer's Certificate.
<PAGE>
ANNEX D
TO OFFICER'S CERTIFICATE DATED AS OF , 19
Changes in the list of [Restricted Subsidiaries (excluding
Special Restricted Subsidiaries)] [Subsidiaries and Restricted
Subsidiaries] since the Officer's Certificate dated as of the
close of the immediately preceding Fiscal [Quarter*/] [Year**/]:
<PAGE>
EXHIBIT J
FORM OF OPINION OF COUNSEL FOR THE COMPANY
(Section 12.1(a)(vi))
[Letterhead of Counsel to the Company]
September 15, 1994
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Documentary Agent
One First National Plaza
Chicago, Illinois 60670
THE BANK OF NOVA SCOTIA,
individually and as Administrative Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
THE BANK OF NEW YORK,
individually and as Negotiated Loan Agent
One Wall Street
New York, New York 10286
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
individually and as Advisory Agent
600 Peachtree NE, Suite 2700
Atlanta, Georgia 30308
The Banks listed on Schedule I
attached hereto and parties to the
Credit Agreement referred to below
Gentlemen:
We have acted as special counsel to Montgomery Ward & Co.,
Incorporated, an Illinois corporation (the "Company"), in
connection with the negotiation, execution and delivery by the
Company of (i) that certain Long Term Credit Agreement (the "Long
Term Credit Agreement") dated as of September 15, 1994, among the
Company, the banks named therein and listed on Schedule I
attached hereto and the agents named therein and listed above,
and in connection with the transactions and other documents and
instruments described therein or consummated or executed and
delivered in connection therewith and (ii) that certain Short
Term Credit Agreement (the "Short Term Credit Agreement") dated
as of September 15, 1994, among the Company, the banks named
therein and listed on Schedule I attached hereto and the agents
named therein and listed above, and in connection with the
transactions and other documents and instruments described
therein or executed and delivered in connection therewith. When
terms are capitalized and used herein and are not otherwise
defined herein, such terms are used herein and shall have the
meanings ascribed to such terms in the Long Term Credit
Agreement.
In connection with this opinion, we have examined a
counterpart of the Long Term Credit Agreement executed by the
Company, a counterpart of the Short Term Credit Agreement
executed by the Company and executed copies of the notes (the
"Notes") being delivered by the Company pursuant to both such
agreements. Except as provided below, we have also investigated
such questions of law, have made such factual inquiries and have
examined the original, certified, conformed or photostatic copies
of all such records of the Company and all such documents,
certificates of public officials, certificates of officers and
representatives of the Company and others, and such other
documents, and relied on the same, all as we deem relevant,
necessary or appropriate for the opinions hereinafter expressed.
As to indicated matters, our opinions as expressed below are
based solely upon conclusions as to such matters set forth in the
opinion of G. T. Morgan, Esq., Senior Associate General Counsel
to the Company, a copy of which is attached hereto as Exhibit A
and we have assumed, with your permission, the correctness of the
matters set forth therein, except for paragraph 3 of such
opinion. Our opinion is, except as otherwise specifically
indicated in the preceding sentence, in every respect based upon
and subject to the assumptions, qualifications, limitations and
matters set forth in said opinion (and the exhibits thereto)
attached hereto as Exhibit A, and as otherwise provided herein.
On the basis of all of the foregoing, and subject to the
additional qualifications, assumptions and limitations set forth
below, we are of the opinion that:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Illinois.
2. The execution, delivery and performance by the Company
of the Long Term Credit Agreement, the Short Term Credit
Agreement and the Notes (a) are within the Company's corporate
powers, (b) have been duly authorized by all necessary corporate
and other action, (c) do not require any governmental approval
which has not been previously obtained (and each such
governmental approval that has been previously obtained remains
effective), (d) do not conflict with any provision of law, or of
any judgment, decree or order, or of the Company's charter or
by-laws, and (e) to our knowledge, do not and will not contravene
or conflict with, or cause any Lien to arise under, any provision
of any agreement binding upon the Company, any material
Subsidiary or any of their respective properties.
3. The Long Term Credit Agreement, the Short Term Credit
Agreement and the Notes have been duly executed and delivered by
the Company and are the legal, valid and binding obligations of
the Company enforceable against the Company in accordance with
their respective terms except as such enforcement may be limited
by the application of bankruptcy, moratorium, reorganization or
other laws or legal principles affecting the rights of creditors
generally or by general principles of equity (whether or not a
proceeding is brought in a court of law or equity).
4. The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of
the Investment Company Act of 1940, as amended.
5. Neither the Company nor any material Subsidiary is a
"holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
6. Except as set forth in Schedule II to the Long Term
Credit Agreement, in the annual report on form 10-K of the Parent
for the fiscal year ended January 1, 1994 or in the quarterly
report on form 10-Q of the Parent for the fiscal quarter ended
July 2, 1994, no Material Litigation is pending or threatened
against the Company.
The opinions set forth above are subject to the following
additional qualifications:
(a) We have assumed, with your permission, the genuineness
of all signatures, the authenticity of all documents submitted to
us as originals, the conformity to the originals of all documents
submitted to us as copies and the authenticity of the originals
of all such latter documents. We have also assumed the accuracy
of the factual matters contained in the documents we have
examined, and as related to us by officers and representatives of
the Company.
(b) We have assumed, with your permission, the due
execution and delivery of the Long Term Credit Agreement and the
Short Term Credit Agreement by the Banks and all other documents
and instruments delivered in connection therewith by each of the
parties thereto, other than the Company.
(c) With your permission, we have relied solely on the
aforesaid opinion of G. T. Morgan, Esq., Senior Associate General
Counsel to the Company with respect to matters referred to or set
forth in paragraphs 1, 2 (except as to that part of paragraph
2(d) which deals with "conflict with any provision of law" (with
respect to which we partially relied on said opinion of Mr.
Morgan)) and 6 of this letter. As indicated above, said opinion
is attached hereto as Exhibit A.
(d) We are qualified to practice law in the State of
Illinois and we do not purport to be experts in any law other
than the law of the State of Illinois and the federal law of the
United States. Accordingly, we express no opinion as to the laws
of any states, or as to any matter subject to such laws, other
than the laws of the State of Illinois. We also do not render
any opinion as to whether any state, other than the State of
Illinois, would uphold the choice of law provisions in the Long
Term Credit Agreement and the Short Term Credit Agreement.
(e) Our opinions are limited to the matters expressly set
forth herein and no opinion is to be implied or inferred beyond
the matters expressly so stated.
(f) Myron Lieberman, a member of this firm, is the sole
general partner of Lieberman Investment Limited Partnership, a
partnership in which one or more other members of this firm are
also partners. Lieberman Investment Limited Partnership is a
shareholder of Montgomery Ward Holding Corp., a Delaware
corporation (the "Parent"), which owns all of the issued and
outstanding shares of the Company. Mr. Lieberman individually is
also a shareholder of the Parent and a director of the Company
and the Parent.
This opinion is delivered pursuant to the Long Term Credit
Agreement and the Short Term Credit Agreement and is furnished
only to the Agents and the Banks and their Assignees and
Participants and their respective counsel, and is solely for
their benefit in connection with the above transactions.
Very truly yours,
<PAGE>
SCHEDULE I
To Opinion Dated September 15, 1994
of Counsel to the Company
<PAGE>
EXHIBIT A
To Opinion Dated September 15, 1994
of Counsel to the Company
[MONTGOMERY WARD & CO., INCORPORATED LETTERHEAD]
September 15, 1994
Gentlemen:
As Senior Associate General Counsel to Montgomery Ward &
Co., Incorporated, an Illinois corporation (the "Company"), I
hereby render this opinion to induce and permit you to render
your opinion ("Loan Opinion") to the Banks in connection with the
transactions contemplated by (i) that certain Long Term Credit
Agreement ("Long Term Credit Agreement") dated as of September
15, 1994, among the Company, the banks named therein and listed
on Schedule I attached hereto and the agents named therein and
listed on Schedule II attached hereto, and (ii) that certain
Short Term Credit Agreement ("Short Term Credit Agreement")
dated as of September 15, 1994, among the Company, the banks
named therein and listed on Schedule I hereto and the agents
named therein and listed on Schedule II hereto. In connection
with this opinion, I have examined a counterpart of the Long Term
Credit Agreement executed by the Company, a counterpart of the
Short Term Credit Agreement executed by the Company and executed
copies of each of the notes (the "Notes") being delivered by the
Company pursuant to both such Agreements. Except as provided
below, I have also investigated such questions of law, have made
such factual inquiries and have examined the original, certified,
conformed or photostatic copies of all such records of the
Company and all such documents, certificates of public officials,
certificates of officers and representatives of the Company and
others, and such other documents, all as I deem relevant,
necessary or appropriate for the opinions hereinafter expressed.
When terms are capitalized and used herein and are not otherwise
defined herein, such terms are used herein and shall have the
meaning ascribed to such terms in the Long Term Credit Agreement.
On the basis of all the foregoing, and subject to the
additional qualifications, assumptions and limitations set forth
below, I am of the opinion that:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Illinois.
2. The execution, delivery and performance by the Company
of the Long Term Credit Agreement, the Short Term Credit
Agreement and the Notes (a) are within the Company's corporate
powers, (b) have been duly authorized by all necessary corporate
and other action, (c) do not require any government approval
which has not been previously obtained, (d) do not conflict with
any provision of law, or of any judgment, decree or order, or of
the Company's charter or by-laws, and (e) to my knowledge, do not
and will not contravene or conflict with, or cause any Lien to
arise under, any provision of any agreement binding upon the
Company, any Subsidiary or any of their respective properties.
3. The Long Term Credit Agreement, the Short Term Credit
Agreement and the Notes have been duly executed and delivered by
the Company and the Long Term Credit Agreement and the Short Term
Credit Agreement are, and any Negotiated Note evidencing an
outstanding Negotiated Loan, any Term Note evidencing an
outstanding Term Loan and any Swing Note evidencing an
outstanding Swing Loan made pursuant to the provisions of the
Long Term Credit Agreement or the Short Term Credit Agreement
during the period such Loan remains outstanding will be the
legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their respective terms
except as such enforcement may be limited by the application of
bankruptcy, moratorium, reorganization or other laws or legal
principles affecting the rights of creditors generally or by
general principles of equity (whether or not a proceeding is
brought in a court of law or equity).
4. Except as set forth in Schedule II to the Long Term
Credit Agreement, in the annual report on form 10-K of the Parent
for the fiscal year ended January 1, 1994 or in the quarterly
report on form 10-Q of the Parent for the fiscal quarter ended
July 2, 1994, no Material Litigation is pending or threatened
against the Company.
The opinions set forth above are subject to the following
additional qualifications:
(a) I have assumed, with your permission, the genuineness
of all signatures, the authenticity of all documents submitted to
me as originals, the conformity to the originals of all documents
submitted to me as copies and the authenticity of the originals
of all such latter documents. I have also assumed the accuracy
of the factual matters contained in the documents I have
examined, and as related to me by officers and representatives of
the Company.
(b) I have assumed, with your permission, the due execution
and delivery of the Long Term Credit Agreement and the Short Term
Credit Agreement by the Banks and all other documents and
instruments delivered in connection therewith by each of the
parties thereto, other than the Company.
(c) I am qualified to practice law in the State of Illinois
and I do not purport to be an expert in any law other than the
law of the State of Illinois and the federal law of the United
States. Accordingly, I express no opinion as to the laws of any
states, or as to any matter subject to such laws, other than the
laws of the State of Illinois. I also do not render any opinion
as to whether any state, other than the State of Illinois, would
uphold the choice of law provisions in the Long Term Credit
Agreement and the Short Term Credit Agreement Documents.
(d) I am a shareholder of Montgomery Ward Holding Corp., a
Delaware corporation (the "Parent"), which owns all of the issued
and outstanding shares of the Company, and I am the holder of
options to purchase shares of Class A Common Stock of the Parent.
(e) My opinion is limited to the matters expressly set
forth herein and no opinion is to be implied or inferred beyond
the matters expressly so stated.
You, the Banks and the Agents (and their Assignees and
Participants) and their respective counsel are entitled to rely
on the opinion hereinbefore set forth and you are hereby
authorized to attach this letter of opinion as an exhibit to the
Loan Opinion delivered pursuant to Section 12.1(a)(vi) of the
Long Term Credit Agreement and the Short Term Credit Agreement.
Very truly yours,
G. T. Morgan, Esq.,
Senior Associate General Counsel
Montgomery Ward & Co., Incorporated
<PAGE>
SCHEDULE I
To Opinion Dated September 15, 1994
of G. T. Morgan, Esq.
<PAGE>
SCHEDULE II
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Documentary Agent
One First National Plaza
Chicago, Illinois 60670
THE BANK OF NOVA SCOTIA,
individually and as Administrative Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
THE BANK OF NEW YORK,
individually and as Negotiated Loan Agent
One Wall Street
New York, New York 10286
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
individually and as Advisory Agent
600 Peachtree Street NE, Suite 2700
Atlanta, Georgia 30308
<PAGE>
EXHIBIT K
FORM OF CERTIFICATE AS TO SATISFACTION OF CONDITIONS
(Section 12.1(a)(vii))
To: The Banks and the Agents
parties to the Credit Agreement
referred to below.
This Certificate is furnished pursuant to Section
12.1(a)(vii) of the Short Term Credit Agreement, dated as of
September 15, 1994 (the "Credit Agreement"), among Montgomery
Ward & Co., Incorporated, an Illinois corporation (the
"Company"), the banks named therein (the "Banks") and the agents
named therein (the "Agents"). Capitalized terms used herein but
not otherwise defined herein shall have the same meanings as
those assigned to them in the Credit Agreement.
I hereby certify to the Banks and the Agents, on behalf of
the Company that, I am the duly qualified and acting __________
of the Company, and I am authorized to execute this Certificate
on behalf of the Company and I further certify as follows:
1. As of the date hereof no Event of Default or Unmatured
Event of Default has occurred and is continuing or shall result
from the making of any Loan on the date hereof.
2. The Company's representations and warranties contained
in Sections 10.1 through 10.18 are true and correct as of the
date hereof.
3. All of the conditions precedent to the Credit Agreement
becoming effective, which conditions are set forth in Section
12.1 of the Credit Agreement, have been satisfied as of the date
of this Certificate.
IN WITNESS WHEREOF, I have hereunto set my hand this 15th
day of September, 1994.
Name:
Title:
of Montgomery Ward & Co.,
Incorporated
<PAGE>
EXHIBIT L
FORM OF ASSIGNMENT AND ACCEPTANCE
(Section 15.4(b))
Reference is made to the Short Term Credit Agreement,
dated as of September 15, 1994 (herein, as heretofore amended,
modified or supplemented, called the "Credit Agreement"), among
Montgomery Ward & Co., Incorporated, an Illinois corporation (the
"Company"), and the Banks and Agents parties thereto. Terms used
but not otherwise defined herein are used herein as defined in
the Credit Agreement.
(the "Assignor")
and (the "Assignee") hereby agree as
follows:
1. The Assignee hereby purchases and assumes from the
Assignor, and the Assignor hereby sells and assigns and delegates
to the Assignee, without recourse and without representation or
warranty except as specifically set forth in paragraph 2 below,
a ______%1/ interest in and to all of the Assignor's rights,
benefits and obligations under the Credit Agreement, including,
without limitation, rights of setoff pursuant to Section 8.3 of
the Credit Agreement, and obligations to share pursuant to
Section 8.2 of the Credit Agreement, which (after giving effect
to any other assignments thereof made prior to the date hereof,
whether or not such assignments have become effective, but
without giving effect to any other assignments thereof also made
on the date hereof) is $__________, and also including, without
limitation, the same _____% 1/interest in:
(a) the aggregate outstanding principal amount of the
Revolving Loans, Swing Loans [and Negotiated Loans]
owing to the Assignor, which (after giving effect to
any other assignments thereof made prior to the date
hereof, whether or not such assignments have become
effective, but without giving effect to any other
assignments thereof also made on the date hereof) is
$____________; and
(b) the Revolving Note, Swing Note [and Negotiated
Note] held by the Assignor.
2. (a) The Assignor represents and warrants that the
Assignor has received the Company's consent to this
Assignment and Acceptance (a true and correct copy of
the letter from the Company evidencing such consent
being attached hereto as Annex A).
(b) The Assignor represents and warrants that it is the
legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free
and clear of any adverse claim.
(c) The Assignee acknowledges and agrees that neither the
Assignor nor any Agent nor any other Bank makes any
representation or warranty or assumes any responsibility
with respect to any statements, warranties or
representations made in or in connection with the Credit
Agreement or any other instrument or document furnished
pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the
Credit Agreement or any other instrument or document
furnished pursuant thereto.
(d) The Assignee acknowledges and agrees that neither the
Assignor nor any Agent nor any other Bank makes any
representation or warranty or assumes any responsibility
with respect to the financial condition or
creditworthiness of the Company or the performance or
observance by the Company of any of its obligations under
the Credit Agreement or any other instrument or document
furnished pursuant thereto. The Assignee acknowledges
and agrees that (i) the Assignee has made and will
continue to make such inquiries and has taken and will
continue to take such care on its own behalf as would
have been the case had it made Loans directly to the
Company without the intervention of the Assignor, any
Agent or any other Person, and (ii) the Assignee has made
and will continue to make its own credit analysis and
decisions relating to the Credit Agreement independently
and without reliance upon the Assignor, any Agent or any
other Person, and based on such documents and information
as it has deemed appropriate.
(e) The Assignor represents and warrants that on the
date hereof it is assigning an equal percentage amount
of its commitment to make revolving loans and swing
loans under the Long Term Credit Agreement as well as
the revolving note and swing note evidencing such loans
respectively.
(f) The Assignor attaches the Revolving Note and Swing
Note referred to in paragraph 1(b) above and requests
that (i) the Applicable Agent exchange such Notes for
new Notes as follows: a Revolving Note dated
______________, 19___ in the principal amount of
$___________ payable to the order of the Assignee, a
Swing Note dated __________, 19___ in the principal
amount of $__________ payable to the order of the
Assignee [, a Revolving Note dated __________, 19__ in
the principal amount of $__________ payable to the
order of the Assignor and a Swing Note dated
__________, 19__ in the principal amount of $__________
payable to the order of the Assignor] and (ii) a
Negotiated Note dated __________, 19__ in the principal
amount of $__________ payable to the order of the
Assignee].
(g) No Negotiated Loans are currently owing to the
Assignor [except in the outstanding principal amount of
$__________].
[(h) The Assignor and the Assignee agree and
acknowledge that the assignment made herein shall be
supplemented by an assignment supplement of even date
herewith with regard to the payment of interest and
certain fees between the Assignor and the Assignee
which shall include the amount of commitment fees on
Loans currently outstanding.]
3. The effective date for this Assignment and
Acceptance shall be __________________, 19__ (the "Assignment
Date").2/ Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, it will be delivered
to the Applicable Agent for acceptance by the Applicable Agent.
At such time, if the Assignee is a Non-United States Person, it
shall also deliver to the Applicable Agent a written
representation and warranty substantially similar to that
contained in Section 8.4(b) of the Credit Agreement. Following
such acceptance by the Applicable Agent of this Assignment and
Acceptance, a photostatic copy hereof shall be delivered to the
Company, together with the representation and warranty described
above. The Applicable Agent shall deliver the new Notes executed
by the Company to the payees thereof and shall mark the Notes
referred to in paragraph 1(b) above as "replaced" and shall
deliver the same to the Company.
4. Upon such acceptance by the Applicable Agent, as
of the Assignment Date,
(a) the Assignee shall, in addition to any rights,
benefits and obligations under the Credit Agreement
held by it immediately prior to the Assignment Date,
have the rights, benefits and obligations under the
Credit Agreement that have been assigned to it pursuant
to this Assignment and Acceptance, and
(b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and
benefits and be released from its obligations under the
Credit Agreement, except that the Assignor shall remain
entitled to the rights and benefits arising under
Sections 6, 8.4, 9 and 15.6 of the Credit Agreement,
and shall remain liable with respect to any of its
obligations arising under Sections 6.9, 8.4(c), 14.2
and 15.5 of the Credit Agreement, with respect to any
matters arising prior to the Assignment Date.
5. Upon such acceptance by the Applicable Agent,
from and after the Assignment Date, the Applicable Agent shall
make all payments under the Credit Agreement and the Revolving
Note and Swing Note in respect of the interest assigned hereby
(including, without limitation, all payments of principal,
interest and commitment and other fees with respect thereto) to
the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments under the Credit Agreement
and the Revolving Note, Swing Note [and Negotiated Note] for
periods prior to (and, if agreed to, in the case of commitment
fees or interest, after) the Assignment Date directly between
themselves.
6. After acceptance by the Applicable Agent, the
Assignor and the Assignee agree to give written notice of this
Assignment and Acceptance to each Bank and each Agent, which
written notice shall include the addresses and related
information with respect to the Assignee.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
Illinois without regard to conflict of laws principles.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
Accepted this __ day Copies of all notices, etc,
of ____________, 19__. should be sent to:
[NAME OF APPLICABLE AGENT],
as Applicable Agent
Attention:
By: Telephone:
Title: Telecopy:
Telex:
Base Rate Loan Funding Office:
Eurodollar Loan Funding
Office:
<PAGE>
1/ Specify percentage in no more than 4 decimal points.
2/ See Section 15.4(b). Such date shall be at least five (5)
Business Days after the execution of this Assignment and
Acceptance.
<PAGE>
ANNEX A
TO ASSIGNMENT AND ACCEPTANCE
[Attach a copy of the letter from the Company
consenting to this Assignment and Acceptance]
<PAGE>
EXHIBIT M
FORM OF REPLACEMENT AGREEMENT
(Section 15.4(e))
This Agreement, dated as of ___________, 19__, constitutes a
Replacement Agreement pursuant to Section 15.4(e) of the Short
Term Credit Agreement dated September 15, 1994 (as amended,
modified or supplemented, the "Credit Agreement"), among
Montgomery Ward & Co., Incorporated (the "Company"), the banks
named therein and the agents named therein. Terms not otherwise
expressly defined herein shall have the meanings set forth in the
Credit Agreement.
1. The Company hereby (a) represents and warrants that no
Event of Default or Unmatured Event of Default has occurred and
is continuing, and (b) concurrently herewith agrees to pay all
Liabilities of the Company now outstanding to ___________________
(the "Terminated Bank") (including without limitation all such
amounts due the Terminated Bank under Sections 6, 8.4, 9, 15.5
and 15.6 of the Credit Agreement), which Liabilities on the date
hereof are $ .
2. All obligations of the Terminated Bank (excluding any
obligations arising under Sections 6.9, 8.4(c), 14.2 and 15.5 of
the Credit Agreement with respect to any matters arising prior to
the effective date of such termination) are hereby terminated and
the Terminated Bank is hereby released therefrom and the
Terminated Bank hereby ceases to be a party to the Credit
Agreement and a Bank thereunder.
3. _________________ (the "Replacement Bank") hereby
becomes a party to the Credit Agreement and a Bank thereunder and
agrees to be bound thereby with the same effect as if the
Replacement Bank were the Terminated Bank immediately prior to
such substitution. The Commitment of the Replacement Bank shall
be $ and the Termination Date for such Bank shall be
________________, 19__.
This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Illinois.
This Agreement may be executed in any number of counterparts
and by the different parties on separate counterparts and each
such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
Agreement.
MONTGOMERY WARD & CO.,
INCORPORATED
By:
Title:
[REPLACEMENT BANK]
By:
Title:
THE BANK OF NOVA SCOTIA, in
its capacity as Administrative
Agent
By:
Title:
EXHIBIT 10.(iv)(A)(iii)
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED
MONTGOMERY WARD & CO., INCORPORATED
STOCK OWNERSHIP PLAN
This Amendment No. 1 to the amended and restated
Montgomery Ward & Co., Incorporated Stock Ownership Plan (the
"Plan") is made as of the 20th day of October, 1994.
WHEREAS, MONTGOMERY HOLDING CORP., a Delaware
corporation, (the "Company") has previously amended and restated
the Plan; and
WHEREAS, pursuant to Section 16 of the Plan the Company
has reserved the right to amend the Plan; and
WHEREAS, the Company desires to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended in the
following manner:
1. The second sentence of Section 1 is deleted in
its entirety and the following is inserted in lieu
thereof: "The purpose of the Associate Plan of the
Program is to attract and retain outstanding individuals
as associates, advisors and consultants of Montgomery
Ward Holding Corp. ("Company"), Montgomery Ward & Co.,
Incorporated ("Ward"), and their subsidiaries and
affiliates (Company, Ward and their subsidiaries and
affiliates, collectively or individually, "Ward Group"),
excluding associates, advisors and consultants who are
also directors of the Company, and to provide incentives
for such associates, advisors and consultants to expand
and improve the profits and achieve the objectives of the
Ward Group by providing to such individuals opportunities
to acquire shares of Class A Common Stock, Series 1 (par
value $.01 per share) ("Series 1 Shares"), Class A Common
Stock, Series 2 (par value $.01 per share) ("Series 2
Shares") and Class A Common Stock, Series 3 (par value
$.01 per share) ("Series 3 Shares") of the Company (the
Series 1 Shares, the Series 2 Shares and the Series 3
Shares being hereinafter collectively referred to as
"Shares") and thereby provide such individuals with a
greater proprietary interest in and closer identity with
the Ward Group and its financial success."
<PAGE>
2. The first sentence of Section 7 is deleted in
its entirety and the following is inserted in lieu
thereof: "The total number of Shares allocated to this
Program and available to designated Participants under
this Program is One Million (1,000,000) Series 1 Shares,
Five Million Four Hundred Twelve Thousand (5,412,000)
Series 2 Shares and Two Million (2,000,000) Series 3
Shares, except as such numbers of Shares shall be
adjusted in accordance with the provisions of Section
11."
3. The following sentence is inserted as the first
sentence of Section 12: "Notwithstanding anything herein
to the contrary, no Awards, Purchase Rights or Options
shall be granted to any person who is not an associate of
the Company or of one of its direct or indirect
subsidiaries unless the applicable Committee, by
resolution, determines that such grant of an Award,
Purchase Right or Option would not be contrary to the
securities laws of any applicable jurisdictions at the
time of such grant."
EXHIBIT 10.(iv)(A)(5)
AMENDMENT NO. 10 TO
MONTGOMERY WARD & CO., INCORPORATED STOCK OWNERSHIP PLAN
TERMS AND CONDITIONS
This Amendment No. 10 to the Montgomery Ward & Co.,
Incorporated Stock Ownership Plan Terms and Conditions ("Amendment
No. 10") is consented to and made as of the 22nd day of September,
1994 by and among MONTGOMERY WARD HOLDING CORP., a Delaware
corporation (the "Company"), and Bernard F. Brennan, individually
and as attorney-in-fact for the other parties to those certain
Montgomery Ward & Co., Incorporated Stock Ownership Plan Terms and
Conditions as heretofore amended and restated (the "Terms and
Conditions").
WHEREAS, it is desired that the number of directorships
of the Company be increased to eleven;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged the
parties hereto hereby agree as follows:
1. Section 5.2 of the Terms and Conditions is hereby
amended and restated as of the date hereof as set forth on Exhibit
A hereto.
2. This Amendment No. 10 is adopted by the Company with
the consent of the holders of not less than 66 2/3 % of the
outstanding Shares, as provided in Section 7.2 of the Terms and
Conditions.
IN WITNESS WHEREOF, the undersigned hereby consent to and
execute this Amendment No. 10 as of the day and year first above
written.
MONTGOMERY WARD HOLDING CORP.
By: /s/ Bernard F. Brennan
Bernard F. Brennan,
Chairman and Chief Executive Officer
/s/ Bernard F. Brennan,
individually, and as attorney-in-fact for the
beneficial owners of all Shares (as defined
in the Terms and Conditions) held by him as
Voting Trustee under that certain Voting Trust
Agreement dated as of June 21, 1988.
<PAGE>
EXHIBIT A
5.2 Election of Directors. Subject to the limitations
set forth herein, and in addition to any provisions relating to the
election of directors by the holders of Preferred Stock which are
contained in the Certificate of Incorporation and By-laws of the
Company, at all times in which this Article V is in effect, the By-
laws of the Company shall provide, and the participants agree to
vote, for the election of a Board of Directors consisting of eleven
members, six to be designated by the Designator and five to be
designated by GE Capital. The By-laws shall further provide, and
the Participants agree, that, disregarding any directors which may
be elected by the holders of Preferred Stock pursuant to the
provisions of the Company's Certificate of Incorporation:
(a) Intentionally omitted;
(b) at such time, if any, as GE Capital and the GE
Capital Affiliates shall cease to own, in the aggregate, more
than 50% of the shares of Common Stock which GE Capital and
the GE Capital Affiliates purchased on June 22, 1988, the
number of members of the Board of Directors which the
Designator shall have the right to designate shall be
increased by one and the number of members of the Board of
Directors which GE Capital shall have the right to designate
shall be reduced by one; and
(c) at such time, if any, as GE Capital and the GE
Capital Affiliates shall cease to own, in the aggregate, 20%
or more of the shares of Common Stock which GE Capital and the
GE Capital Affiliates purchased on June 22, 1988, GE Capital
shall no longer have the right to designate members of the
Board of Directors in accordance with the foregoing provisions
of this Section 5.2; and the number of directors to be elected
shall be reduced to nine, seven to be elected by the holders
of Class A Shares, voting as a class, and two to be elected by
the holders of Class B Common Stock, voting as a class;
provided, however, that as long as that certain Account
Purchase Agreement, dated as of June 24, 1988, between Ward
and Montgomery Ward Credit Corporation shall be in effect and
GE Capital or any GE Capital Affiliate shall own any shares of
Class B Common Stock, GE Capital shall have the right to elect
one of the two directors to be elected by the holders of Class
B Common Stock.
In the event of a vacancy on the Board of Directors, the party who
had the right to designate the director whose seat is vacant shall
have the right to designate the party who shall fill the vacancy.
The party who had the right to designate a director shall also have
the right to cause that director to be removed.
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<S> <C>
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<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-END> OCT-1-1994
<CASH> 37
<SECURITIES> 330
<RECEIVABLES> 108
<ALLOWANCES> 0
<INVENTORY> 1630
<CURRENT-ASSETS> 0
<PP&E> 1966
<DEPRECIATION> 603
<TOTAL-ASSETS> 4488
<CURRENT-LIABILITIES> 0
<BONDS> 0
<COMMON> 0
75
0
<OTHER-SE> 632
<TOTAL-LIABILITY-AND-EQUITY> 4488
<SALES> 4310
<TOTAL-REVENUES> 4649
<CGS> 3347
<TOTAL-COSTS> 3347
<OTHER-EXPENSES> 1182
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 41
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