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CREDIT AGREEMENT
by and among
THE HOME DEPOT, INC.
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and as a Lender,
WACHOVIA BANK, N.A.,
as Syndication Agent and as a Lender
FIRST UNION NATIONAL BANK
and
THE BANK OF NEW YORK,
as Co-Documentation Agents and as Lenders
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
September 17, 1999
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
<PAGE>
TABLE OF CONTENTS
<PAGE>
ARTICLE I DEFINITIONS
SECTION 1.01. Definitions ..........................................1
SECTION 1.02. Accounting Terms and Determinations..................18
SECTION 1.03. References...........................................18
SECTION 1.04. Use of Defined Terms.................................19
SECTION 1.05. Terminology .........................................19
SECTION 1.06. Alternate Currencies.................................19
SECTION 1.07. Time.................................................19
ARTICLE II THE CREDITS
SECTION 2.01. Commitments to Lend..................................19
SECTION 2.02. Method of Borrowing..................................20
SECTION 2.03. Money Market Loans...................................22
SECTION 2.04. Notes................................................25
SECTION 2.05. Maturity of Loans....................................26
SECTION 2.06. Interest Rates.......................................26
SECTION 2.07. Fees; Calculations...................................27
SECTION 2.08. Optional Termination or Reduction of Commitments.....28
SECTION 2.09. Termination of Commitments...........................29
SECTION 2.10. Optional Prepayments.................................29
SECTION 2.11. Mandatory Prepayment.................................29
SECTION 2.12. General Provisions as to Payments....................29
SECTION 2.13. Computation of Interest and Fees.....................31
SECTION 2.14. Swing Line...........................................31
SECTION 2.15. Utilization of Offshore Currencies...................32
SECTION 2.16. Increase in Total Revolving Credit Commitment........33
ARTICLE III CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing........................34
SECTION 3.02. Conditions to All Borrowings.........................35
ARTICLE IV-A REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 4.01. Corporate Existence and Power........................36
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention.....................................36
SECTION 4.03. Binding Effect.......................................36
SECTION 4.04. Financial Information................................37
SECTION 4.05. No Litigation........................................37
SECTION 4.06. Compliance with ERISA................................37
SECTION 4.07. Compliance with Laws; Payment of Taxes...............37
<PAGE>
SECTION 4.08. Significant Subsidiaries.............................37
SECTION 4.09. Investment Company Act...............................38
SECTION 4.10. Public Utility Holding Company Act...................38
SECTION 4.11. Ownership of Property; Liens.........................38
SECTION 4.12. No Default...........................................38
SECTION 4.13. Full Disclosure......................................38
SECTION 4.14. Environmental Matters................................38
SECTION 4.15. Capital Stock........................................39
SECTION 4.16. Margin Stock.........................................39
SECTION 4.17. Solvency.............................................39
SECTION 4.18. Year 2000 Compliance.................................39
ARTICLE IV-B REPRESENTATIONS AND WARRANTIES OF THE BANKS
AND THE AGENT
SECTION 4.19. Agent and Bank Corporate Existence and Power.........40
SECTION 4.20. Agent and Bank Binding Effect........................40
ARTICLE V COVENANTS
SECTION 5.01. Information..........................................40
SECTION 5.02. Inspection of Property, Books and Records............41
SECTION 5.03. Ratio of Consolidated Funded Debt to Consolidated Total
Tangible Capital.....................................42
SECTION 5.04. Negative Pledge......................................42
SECTION 5.05. Maintenance of Existence.............................43
SECTION 5.06. Dissolution..........................................43
SECTION 5.07. Consolidations, Mergers and Sales of Assets..........43
SECTION 5.08. Use of Proceeds......................................44
SECTION 5.09. Compliance with Laws; Payment of Taxes...............44
SECTION 5.10. Insurance............................................44
SECTION 5.11. Maintenance of Property..............................44
SECTION 5.12. Environmental Notices................................44
SECTION 5.13. Environmental Matters................................45
SECTION 5.14. Environmental Release................................45
SECTION 5.15. Debt of Subsidiaries.................................45
SECTION 5.16. Year 2000 Compliance.................................45
ARTICLE VI DEFAULTS
SECTION 6.01. Events of Default....................................45
SECTION 6.02. Notice of Default....................................47
<PAGE>
ARTICLE VII THE AGENT
SECTION 7.01. Appointment, Powers and Immunities...................48
SECTION 7.02. Reliance by Agent....................................48
SECTION 7.03. Defaults.............................................48
SECTION 7.04. Rights of Agent as a Bank............................49
SECTION 7.05. Indemnification......................................49
SECTION 7.06. CONSEQUENTIAL DAMAGES................................49
SECTION 7.07. Payee of Note Treated as Owner.......................50
SECTION 7.08. Nonreliance on Agent and Other Banks.................50
SECTION 7.09. Failure to Act.......................................50
SECTION 7.10. Resignation or Removal of Agent......................50
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair......................................51
SECTION 8.02. Illegality...........................................51
SECTION 8.03. Increased Cost and Reduced Return....................52
SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar Loans....54
SECTION 8.05. Compensation.........................................54
ARTICLE IX MISCELLANEOUS
SECTION 9.01. Notices..............................................54
SECTION 9.02. No Waivers...........................................55
SECTION 9.03. Expenses; Documentary Taxes..........................55
SECTION 9.04. Indemnification; Limitation of Liability.............55
SECTION 9.05. Sharing of Setoffs...................................58
SECTION 9.06. Amendments and Waivers...............................59
SECTION 9.07. No Margin Stock Collateral...........................59
SECTION 9.08. Successors and Assigns...............................59
SECTION 9.09. Confidentiality......................................61
SECTION 9.10. Representation by Banks..............................62
SECTION 9.11. Obligations Several..................................62
SECTION 9.12. Georgia Law..........................................62
SECTION 9.13. Severability.........................................62
SECTION 9.14. Interest.............................................62
SECTION 9.15. Interpretation.......................................63
SECTION 9.16. Consent to Jurisdiction..............................63
SECTION 9.17. Counterparts.........................................64
<PAGE>
EXHIBITS AND SCHEDULES
EXHIBIT A-1 ...................FORM OF SYNDICATED LOAN NOTE A-1-1
EXHIBIT A-2 .................FORM OF MONEY MARKET LOAN NOTE A-2-1
EXHIBIT A-3 ...................FORM OF SWING LINE LOAN NOTE A-3-1
EXHIBIT B ......FORM OF OPINION OF COUNSEL FOR THE BORROWER B-1
EXHIBIT C ................FORM OF ASSIGNMENT AND ACCEPTANCE C-1
EXHIBIT D-1 ...FORM OF NOTICE OF BORROWING: SYNDICATED LOAN D-1-1
EXHIBIT D-2 ...FORM OF NOTICE OF BORROWING: SWING LINE LOAN D-2-1
EXHIBIT E ...................FORM OF COMPLIANCE CERTIFICATE E-1
EXHIBIT F ......................FORM OF CLOSING CERTIFICATE F-1
EXHIBIT G ...............FORM OF MONEY MARKET QUOTE REQUEST G-1
EXHIBIT H .......................FORM OF MONEY MARKET QUOTE H-1
EXHIBIT I ......................FORM OF AMENDMENT AGREEMENT I-1
EXHIBIT J ......................................COMMITMENTS J-1
Schedule 4.08......................Significant Subsidiaries S-1
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 17, 1999, is made by and
among:
THE HOME DEPOT, INC., a Delaware corporation, as the Borrower,
BANK OF AMERICA, N.A., a national banking association organized and
existing under the laws of the United States, in its capacity as a Bank and as
Administrative Agent for the Banks, and each other financial institution
executing and delivering a signature page hereto and each other financial
institution which may hereafter execute and deliver an instrument of
assignment with respect to this Agreement pursuant to Section 9.08,
WACHOVIA BANK, N.A., a national banking association organized and
existing under the laws of the United States, in its capacity as a Bank and as
Syndication Agent,
FIRST UNION NATIONAL BANK, a national banking association organized and
existing under the laws of the United States, in its capacity as a Bank and as
a Co-Documentation Agent, and
THE BANK OF NEW YORK, a state banking association organized and existing
under the laws of New York, in its capacity as a Bank and as a Co-
Documentation Agent;
The parties hereto agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.01. Definitions . The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" means, for any Interest Period,
with respect to any Euro-Dollar Loan, the rate of interest per annum equal to
the quotient obtained (rounded upwards, if necessary, to the next higher
1/100th of 1%) by dividing (i) the applicable London Interbank Offered Rate
for such Interest Period by (ii) 1.00 minus the Reserve Requirement. The
Adjusted London Interbank Offered Rate shall be adjusted automatically on and
as of the effective date of any change in the Reserve Requirement.
<PAGE>
"Adjusted Offshore Interbank Offered Rate" means, for any Interest Period,
with respect to any Offshore Loans, the rate of interest per annum (rounded
upwards to the nearest 1/100th of 1%) as follows:
Offshore = London Interbank Offered Rate Mandatory
Rate ------------------------------ + Cost
1- Reserve Requirement
The Adjusted Offshore Interbank Rate shall be adjusted automatically as to all
Offshore Loans then outstanding as of the effective date of any change in the
Reserve Requirement.
"Advance Date Exchange Rate" means, with respect to a specified Loan in an
Alternate Currency, the Spot Rate of Exchange determined for the date such
Loan is originally made.
"Affiliate" means (i) any Person that directly, or indirectly through one
or more intermediaries, controls the Borrower (a "Controlling Person"), (ii)
any Person (other than a Borrower or a Subsidiary) which is controlled by or
is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary) of which the Borrower owns, directly or indirectly, 20% or
more of the common stock or equivalent equity interests. As used herein, the
term "control" means possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agent" means Bank of America, N.A., a national banking association
organized under the laws of the United States of America, in its capacity as
agent for the Banks hereunder, and its successors and permitted assigns in
such capacity.
"Agreed Rate" means for any Swing Line Loan the rate per annum quoted
to the Borrower by the Swing Line Lender on the day of, or prior to, any
Swing Line Borrowing and accepted by the Borrower with respect to such Swing
Line Borrowing.
"Agreement" means this Credit Agreement, together with all amendments and
supplements hereto.
"Alternate Currency" means, collectively or individually as the context
may indicate, the Offshore Currencies and the Alternate Offshore Currencies.
"Alternate Currency Equivalent Amount" means (a) with respect to a
specified Alternate Currency, the amount denominated in such Alternate
Currency and (b) with respect to a specified Dollar amount, the amount of
Alternate Currency into which such Dollar amount would be converted based on
the applicable Advance Date Exchange Rate.
"Alternate Currency Loan" means a Loan to be made in an Alternate Currency
as set forth in the applicable Notice of Borrowing or Money Market Quote,
respectively.
<PAGE>
"Alternate Offshore Currency" means any freely available currency other
than Dollars, Euros, British Pounds Sterling or Canadian Dollars, that in the
opinion of the bidding Bank in a Money Market Quote, in its sole discretion,
is at the time of determination thereof freely traded in the offshore
interbank foreign exchange markets and is freely transferable and convertible
into Dollars in the United States currency market.
"Applicable Margin" means (i) with respect to Base Rate Loans, 0%; and
(ii) with respect to Euro_Dollar Loans and Offshore Loans, (w) if the
Borrower's ratio of Consolidated Funded Debt to Consolidated Total Tangible
Capital is equal to or less than 0.25 to 1.0, 0.095%, (x) if the Borrower's
ratio of Consolidated Funded Debt to Consolidated Total Tangible Capital is
greater than 0.25 to 1.0 but equal to or less than 0.35 to 1.0, 0.090%, (y) if
the Borrower's ratio of Consolidated Funded Debt to Consolidated Total
Tangible Capital is greater than 0.35 to 1.0 but equal to or less than 0.45 to
1.0, 0.15%, and (z) if the Borrower's ratio of Consolidated Funded Debt to
Consolidated Total Tangible Capital is greater than 0.45 to 1.0, 0.255%. The
determination of the Applicable Margin from time to time shall be made in
accordance with Section 2.07(b).
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed in
accordance with Section 9.08(c) in the form attached hereto as Exhibit C.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means Bank of America and each other financial institution
executing and delivering a signature page hereto and each other financial
institution which may hereafter become a Bank pursuant to Section 2.16 or
execute anddeliver an instrument of assignment with respect to this Agreement
pursuant to Section 9.08.
"Bank of America" means Bank of America, N.A., a national banking
association organized under the laws of the United States, and its successors.
"Base Rate" means for any Base Rate Loan for any day, the rate per annum
equal to the higher as of such day of (i) the Prime Rate, and (ii) one_half of
one percent (0.50%) above the Federal Funds Rate. For purposes of determining
the Base Rate for any day, changes in the Prime Rate shall be effective on the
date of each such change.
"Base Rate Borrowing" shall have the meaning given to such term in the
definition of "Borrowing".
"Base Rate Loan" means a Loan to be made as a Base Rate Loan pursuant to
the applicable Notice of Borrowing, Section 2.02(g), or Article VIII, as
applicable.
"Borrower" means The Home Depot, Inc., a Delaware corporation, and its
successors and its permitted assigns.
<PAGE>
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower at the same time by the Banks pursuant to Article II. A Borrowing is
a "Base Rate Borrowing" if such Loans are Base Rate Loans, a "Euro_Dollar
Borrowing" if such Loans are Euro_Dollar Loans, an "Offshore Borrowing" if
such Loans are Offshore Loans, and a "Swing Line Borrowing" if such Loans are
Swing Line Loans made pursuant to Section 2.14. A Borrowing is a "Syndicated
Borrowing" if it is made pursuant to Section 2.01, and a "Money Market
Borrowing" if it is made pursuant to Section 2.03.
"Business Day" means, (i) except as expressly provided in clauses (ii),
(iii) and (iv), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York and North Carolina are authorized or obligated
by law, executive order or governmental decree to be closed, (ii) with respect
to the selection, funding, interest rate, payment, and Interest Period of any
Euro-Dollar Loan and any Money Market Loan denominated in Dollars, any day
which is a Business Day, as described above, and on which the relevant
international financial markets are open for the transaction of business
contemplated by this Agreement and foreign exchange transactions in London,
England, New York, New York and Charlotte, North Carolina, (iii) with respect
to the selection, funding, interest rate, payment and Interest Period for any
Offshore Loan or Money Market Loan denominated in Euros, any day which is a
Business Day as described in clause (ii) above, and on which TARGET (Trans-
European Automated Real-time Gross settlement Express Transfer system) or any
successor thereto is scheduled to be open for business, and (iv) with respect
to the selection, funding, interest rate, payment and Interest Period for any
Offshore Loan or Money Market Loan denominated in an Alternate Currency other
than Euros, any day which is a Business Day as described in clause (ii) above,
and on which the relevant Funding Bank is open for the transaction of business
contemplated by this Agreement and on which dealings in the relevant Alternate
Currency are carried on in the applicable offshore foreign exchange interbank
market in which disbursement of or payment in such Alternate Currency will be
made or received hereunder.
"Capital Stock" means any nonredeemable capital stock of the Borrower
or any Consolidated Subsidiary (to the extent issued to a Person other than
the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. section 9601 et seq. and its implementing regulations
and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation and
Liability Inventory System established pursuant to CERCLA.
"Change in Control" means (i) any Person or two or more Persons acting in
concert shall have acquired beneficial ownership (within the meaning of Rule
13d_3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 40.0% or more of the outstanding shares of the voting
<PAGE>
stock of the Borrower; or (ii) as of any date a majority of the Board of
Directors of the Borrower consists of individuals who were not either (A)
directors of the Borrower as of the corresponding date of the previous year,
(B) selected or nominated to become directors by the Board of Directors of the
Borrower of which a majority consisted of individuals described in clause (A),
or (C) selected or nominated to become directors by the Board of Directors of
the Borrower of which a majority consisted of individuals described in clause
(A) and individuals described in clause (B).
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(d).
"Closing Date" means September 17, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor federal tax code.
"Commitment" means, with respect to each Bank, the amount in Dollars set
forth on Exhibit J hereto, as such amount may be increased or decreased from
time to time (a) pursuant to Sections 2.08 and 2.09, (b) to reflect any
assignments to or by such Bank effected in accordance with Section 9.08, or
(c) to reflect any increase in the Total Revolving Credit Commitment pursuant
to Section 2.16.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated Funded Debt" means at any date the Debt of the Borrower and
its Consolidated Subsidiaries consisting of (a) the types of Debt described
in clauses (i), (ii), (iii) and (iv) of the definition of Debt contained in
this Agreement, (b) an amount equal to 800.0% of the aggregate of all
obligations under operating leases for the Fiscal Year following the last
Fiscal Year for which audited financial statements have been supplied to the
Banks as contained in the Borrower's Annual Report on Form 10K, and (c)
Guaranties of Debt of other Persons of the types described in clauses (a) and
(b) above, determined on a consolidated basis as of such date.
"Consolidated Net Worth" means at any time, Stockholders' Equity, as set
forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Consolidated Operating Profits" means, for any period, the Operating
Profits of the Borrower and its Consolidated Subsidiaries.
<PAGE>
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which, in accordance with GAAP, would be consolidated with
those of the Borrower in its consolidated financial statements as of such date.
"Consolidated Tangible Net Worth" means, at any time, Stockholders'
Equity, less the sum of the value, as set forth or reflected on the most recent
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries,
prepared in accordance with GAAP, of:
(A) Any surplus resulting from any write_up of assets subsequent to
February 1, 1998;
(B) All assets which would be treated as intangible assets for balance
sheet presentation purposes under GAAP, including without limitation goodwill
(whether representing the excess of cost over book value of assets acquired,
or otherwise), trademarks, tradenames, copyrights, patents and technologies,
and unamortized debt discount and expense;
(C) To the extent not included in (B) of this definition, any amount at
which shares of Capital Stock of the Borrower appear as an asset on the
balance sheet of the Borrower and its Consolidated Subsidiaries;
(D) Loans or advances to stockholders, directors, officers or employees;
and
(e) To the extent not included in (B) of this definition, deferred
expenses.
"Consolidated Total Assets" means, at any time, the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis, as set forth or reflected on the most recent consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries, prepared in accordance with
GAAP.
"Consolidated Total Tangible Capital" means, at any time, the sum of (i)
Consolidated Tangible Net Worth, and (ii) Consolidated Funded Debt.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common
control which, together with the Borrower, are treated as a single employer
under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) the capitalized lease obligations of such Person as
lessee under capital leases, (v) all obligations of such Person to reimburse
any bank or other Person in respect of amounts payable under a banker's
acceptance, (vi) all Redeemable Preferred Stock of such Person (in the event
such Person is a corporation), (vii) all obligations of such Person to
<PAGE>
reimburse any bank or other Person in respect of amounts that have actually
been paid under a letter of credit or similar instrument, (viii) all Debt of
others secured by a Lien on any asset of such Person, whether or not such Debt
is assumed by such Person (provided, that, for purposes of this clause (viii),
non_recourse Debt in excess of the value of the asset securing such Debt shall
not be counted), and (ix) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the sum of 2%
plus the interest rate (including the Applicable Margin) applicable to such
Loan hereunder.
"Dividends" means for any period the sum of all dividends paid or declared
during such period in respect of any Capital Stock and Redeemable Preferred
Stock (other than dividends paid or payable in the form of additional Capital
Stock).
"Dollar Equivalent Amount" means (a) the amount denominated in Dollars,
and (b) with respect to a specified Alternate Currency amount, the amount of
Dollars into which such Alternate Currency amount would be converted based on
the applicable Advance Date Exchange Rate.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"EMU Legislation" means (a) a Treaty on European Union (the Treaty of Rome
of March 25, 1957, as amended by the Single European Act 1986 and the
Maastricht Treaty (which was signed at Maastricht on February 1, 1992 and came
into force on November 1, 1993)) and (b) legislative measures of the European
Council (including without limitation European Council regulations) for the
introduction of, changeover to or operation of the Euro, in each case as
amended or supplemented from time to time.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower or any Subsidiary required by any Environmental
Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements,whether or not entered upon consent, or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a
judgment, decree or order.
<PAGE>
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority or
by any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation
any complaints, citations, demands or requests from any Environmental
Authority or from any other person or entity for correction of any violation
of any Environmental Requirement or any investigations concerning any
violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under any
applicable state or local environmental law or regulation.
"Environmental Requirements" means any federal, state or local statute,
law, ordinance, code, rule, regulation, order, decree, permit or license
regulating, relating to, or imposing liability or standards of conduct
concerning, health, safety or any environmental matters or conditions,
environmental protection or conservation, including without limitation,
CERCLA; CERCLIS; the Superfund Amendments and Reauthorization Act of 1986, as
amended; the Resource Conservation and Recovery Act, as amended; the Toxic
Substances Control Act, as amended; the Clean Air Act, as amended; the Clean
Water Act, as amended; together with all regulations promulgated thereunder,
and any other "Superfund" or "Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro" and "e" each means the single official non-legacy currency
denominated as the euro and constituting legal tender for the payment of
public and private debts in the Participating Member States.
"Euro_Dollar Borrowing" shall have the meaning given to such term in the
definition of "Borrowing".
"Euro_Dollar Loan" means a Loan to be made as a Euro_Dollar Loan
pursuant to the applicable Notice of Borrowing.
"Event of Default" has the meaning set forth in Section 6.01.
<PAGE>
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
the Agent (in its individual capacity) on such day on such transactions as
determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Funding Bank" means (a) in the case of Syndicated Loans, any banking
institution approved by the Agent located within a country whose currency is
an Offshore Currency and (b) in the case of Money Market Loans, any banking
institution approved by the applicable Bank making such Money Market Loan
located within a country whose currency has been approved by such Bank as an
Alternate Currency for a particular Money Market Loan; provided that in the
case of the Euro, the Funding Bank may be located in any Participating Member
State.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.02, are to be used
in making the calculations for purposes of determining compliance with the
terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and, without limiting the generality of the foregoing,
any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to secure, purchase or pay (or advance or supply funds for the purchase
or payment of) such Debt or other obligation of such other Person (whether
arising by virtue of partnership arrangements, by agreement to keep_well, to
purchase assets, goods, securities or services, to provide collateral
security, to take_or_pay, or to maintain financial statement conditions or
otherwise) or (ii) to the extent that such an arrangement would be considered
to be a guaranty under GAAP, entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole
or in part), provided that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning. For purposes hereof,
the amount of any Guarantee shall be deemed to be equal to the lesser of (i)
any stated amount of the guarantee or (ii) the outstanding amount of the
obligation directly or indirectly guaranteed.
<PAGE>
"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. section 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b) "ha-
zardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by_product, including, crude oil or any fraction thereof,
or (d) pesticides, as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from
time to time.
"Interest Period" means, with respect to each Euro_Dollar Borrowing or
Offshore Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the first, second, third, sixth
or ninth month thereafter, as the Borrower may elect in the applicable Notice
of Borrowing; provided that:
(a) any Interest Period (subject to paragraph (c) below) which would
otherwise end on a day which is not a Business Day, as applicable, shall be
extended to the next succeeding Business Day unless such Business Day falls
in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day;
(b) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the appropriate subsequent calendar month) shall, subject to paragraph (c)
below, end on the last Business Day of the appropriate subsequent calendar
month;
(c) no Interest Period may be selected which begins before the Termination
Date and would otherwise end after the Termination Date; and
(d) no nine-month Interest Period shall be available unless at the time
the applicable Notice of Borrowing is delivered to the Agent every Bank can
obtain funds for such a period in the applicable money markets, and in the
event that any nine-month request cannot be satisfied as a result of this
clause, upon notice to the Borrower, such request shall be deemed to be a
request for a six-month Interest Period; provided that within one (1) hour
of receipt of such notice from the Agent, the Borrower may notify the Agent
that it elects not to make such Borrowing.
"Investment" means any investment in any other Person, by means of
purchase or acquisition of obligations of or securities issued by such Person,
capital contribution to such Person, loan or advance to such Person, making of
a time deposit with such Person, Guarantee or assumption of any obligation of
such Person.
<PAGE>
"Lending Office" means, as to each Bank, its office located at its address
set forth on the signature pages hereof (or identified on the signature pages
hereof as its Lending Office) or such other office as such Bank may hereafter
designate as its Lending Office by notice to the Borrower and the Agent.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For
the purposes of this Agreement, the Borrower or any Subsidiary shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset;
exclusive, however, of (i) any liens for taxes or governmental charges either
not yet delinquent or which are being contested in good faith by appropriate
proceedings, (ii) liens not securing Debt which are created by or relating to
any legal proceeding which at the time are being contested in good faith by
appropriate proceedings or (iii) any other statutory or inchoate lien securing
amounts other than Debt which are not delinquent.
"Loan" means a Base Rate Loan, Euro_Dollar Loan, Offshore Loan, Swing Line
Loan, Syndicated Loan or Money Market Loan, and "Loans" means Base Rate
Loans, Euro_Dollar Loans, Offshore Loans, Swing Line Loans, Syndicated Loans
or Money Market Loans, or any or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, any other document to
which the Borrower is a party evidencing, relating to or securing the Loans,
and any other document or instrument delivered from time to time in connection
with this Agreement, the Notes or the Loans, as such documents and instruments
may be amended or supplemented from time to time.
"London Interbank Offered Rate" means, with respect to any Euro-Dollar
Loan or Offshore Loan, for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary), to the nearest 1/100th of 1%)
appearing on Dow Jones Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits (a) in Dollars, in the case of a
Euro_Dollar Loan, or (b) in the applicable Offshore Currency, in the case of
an Offshore Loan, at approximately 11:00 A.M. (London time) two (2) Business
Days prior to the first day of such Interest Period for a term comparable to
such Interest Period. If for any reason such rate is not available, the term
"London Interbank Offered Rate" shall mean, with respect to any Euro_Dollar
Loan or Offshore Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) appearing
on Reuters Screen LIBO Page as the London interbank offered rate for deposits
(a) in Dollars, in the case of a Euro-Dollar Loan or (b) in the applicable
Offshore Currency, in the case of an Offshore Loan, at approximately 11:00
A.M. (London time) two (2) Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates (rounded
upwards, if necessary, to the nearest 1/100th of 1%).
<PAGE>
"Mandatory Cost" means, with respect to Offshore Loans denominated in
British Pounds Sterling, a percentage rate per annum determined by the Agent
calculated in accordance with the following formula:
BY + S(Y-Z) + (F x 0.01)
Mandatory Cost per annum = ------------------------
100 _ (B+S)
where on the day of application of the formula:
B = The percentage of the Agent's Eligible Liabilities (in excess of any
stated minimum) by reference to which the Bank of England and/or the
Financial Services Authority requires the Agent to hold on a non-
interest bearing deposit account in accordance with its cash ratio
requirements;
Y = The percentage rate per annum at which sterling deposits are offered
by the Agent to leading banks in the London interbank market at or
about 11:00 A.M. (London, England time) on that day for the relevant
period;
F = The rate of charge payable by the Agent to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the Fees
Regulations (but where for this purpose the figure at paragraph 2.02b
or 2.03b shall be deemed to be zero) and expressed in British Pounds
Sterling per 1,000,000 Pounds Sterling of the Fee Base of the Agent;
S = The percentage of the Agent's Eligible Liabilities which the Bank of
England (or other relevant United Kingdom governmental authority or
agency) requires the Agent to place as a Special Deposit; and
Z = The interest rate per annum payable by the Bank of England to the
Agent on Special Deposits.
(a) For the purposes of this definition:
(i) "Eligible Liabilities" and "Special Deposits" shall have the
meanings given to them at the time of application of the above
formula under or pursuant to the Bank of England Act 1998 or
by the Bank of England (as appropriate);
(ii) "Fee Base" has the meaning given to it in the Fees Regulations;
(iii) "Fees Regulations" means any regulations governing the
payment of fees for banking supervision;
<PAGE>
(b) In the application of the above formula, B, Y, S, and Z are included
in the formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%,
BY is calculated as 0.5 x 15 and not as 0.5% x 15%. A negative result
obtained from subtracting Z from Y is to be treated as zero.
(c) (i) The above formula is applied on the first day of each relevant
period comprised in the relevant Interest Period.
(ii) Each rate calculated in accordance with the above formula is,if
necessary, rounded upward to four decimal places.
(d) The Agent may, from time to time, after consultation with the Borrower
and the Banks, determine and notify to the Borrower and the Banks any
amendments or variations which are required to be made to the formula set out
above in order to comply with any requirements from time to time imposed by
any applicable regulatory authority in relation to Advances denominated in
British Pounds Sterling (including, without limitation, any requirements
relating to British Pounds Sterling primary liquidity) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on the Borrower, the Banks and the Agent.
"Margin Stock" means "margin stock" as defined in Regulations T, U or X.
"Material Adverse Effect" means, with respect to any event, act, condition
or occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related,
a material adverse change in, or a material adverse effect upon, any of (a)
the financial condition, operations, business, or properties of the Borrower
and its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or the Banks under the Loan Documents, or the ability
of the Borrower to perform its obligations under the Loan Documents to which
it is a party, as applicable, or (c) the legality, validity or enforceability
of any Loan Document, which, in the case of clauses (b) and (c), would
reasonably be expected to result in either the Agent or any Bank not
obtaining the practical realization of the significant benefits purported to
be provided thereby; provided, however, that in no event shall either the
Borrower's denial of access to the commercial paper market or the consequences
thereof, in and of itself, be deemed to constitute a Material Adverse Effect.
"Money Market Borrowing" shall have the meaning given to such term in the
definition of "Borrowing".
"Money Market Loan Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit A_2, evidencing the obligation of the
Borrower to repay Money Market Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
<PAGE>
"Money Market Loans" means Loans made pursuant to the terms and conditions
set forth in Section 2.03 hereof.
"Money Market Quote" has the meaning specified in Section 2.03.
"Money Market Quote Request" has the meaning specified in Section 2.03.
"Money Market Rate" has the meaning specified in Section 2.03.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period, the aggregate
amount of net income of such Person, after taxes, for such period, as
determined in accordance with GAAP.
"New Banks" has the meaning specified in Section 2.16(a).
"Notes" means, individually and collectively, as the context shall
require, each of the Syndicated Loan Notes, the Money Market Loan Notes and the
Swing Line Loan Note.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Offshore Borrowing" shall have the meaning given to such term in the
definition of "Borrowing".
"Offshore Currency" means Euros, British Pounds Sterling and Canadian
Dollars.
"Offshore Loan" means a Syndicated Loan to be made in an Offshore Currency
as set forth in the applicable Notice of Borrowing. "Operating Profits"
means, as applied to any Person for any period, the operating income of such
Person for such period, as determined in accordance with GAAP.
"Participant" has the meaning set forth in Section 9.08(b).
"Participating Member State" means each country which from time to time
becomes a Participating Member State as described in EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set forth in
Section 2.07(c).
<PAGE>
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding 5 plan years made
contributions.
"Prime Rate" means the per annum rate of interest established from time to
time by Bank of America as its prime rate, which rate may not be the lowest
rate of interest charged by Bank of America to its customers.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary, wherever located.
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person (i) required (by the terms of the governing instruments
or at the option of the holder) to be mandatorily redeemed for cash at any time
prior to the Termination Date (by sinking fund or similar payments or
otherwise) or (ii) redeemable at the option of the holder thereof at any time
prior to the Termination Date.
"Refunding Loan" means a new Loan made on the day on which an outstanding
Loan is maturing, the conversion of a Base Rate Borrowing to a Euro-Dollar
Borrowing, or the conversion of a Euro_Dollar Borrowing to a Base Rate
Borrowing, if and to the extent that the proceeds thereof are used for the
purpose of paying such maturing Loan or Loan being converted, excluding any
difference between the amount of such maturing Loan or Loan being converted
and any greater amount being borrowed on such day and actually either being
made available to the Borrower pursuant to Section 2.02(d) or Section 2.14
or remitted to the Agent as provided in Section 2.12, in each case as con-
templated in Section 2.02(e).
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
<PAGE>
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Required Banks" means at any time Banks having aggregate Commitments
equal in amount to more than 50% of the Total Revolving Credit Commitment or,
if the Commitments are no longer in effect, Banks holding more than 50% of the
aggregate outstanding principal amount of the sum of (i) Syndicated Loans and
(ii) Money Market Loans.
"Reserve Requirement" means, at any time, the maximum rate (expressed as
a percentage) at which reserves (including, without limitation, any marginal,
special, supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) by member banks of the Federal
Reserve System against "Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained by such
member banks with respect to (i) any category of liabilities which includes
deposits by reference to which the Adjusted London Interbank Offered Rate or
the Adjusted Offshore Interbank Offered Rate (as the case may be) is to be
determined, or (ii) any category of extensions of credit or other assets which
include Euro_Dollar Loans or Offshore Loans.
"Significant Subsidiary" means any Subsidiary of the Borrower with respect
to which, as of the most recently completed Fiscal Quarter, either (i) the
Borrower and its other Subsidiaries' investments in and advances to the Sub-
sidiary exceed 10% of Total Assets, or (ii) the Borrower's and its other
Subsidiaries' proportionate share of Total Assets (after intercompany
eliminations) of the Subsidiary exceeds 10% of Total Assets; provided,
however, that if there are two or more Subsidiaries with respect to which, as
of the most recently completed Fiscal Quarter, either (i) the the Borrower's
and its other Subsidiaries' investments in and advances to each such
Subsidiary exceed 5% and are less than 10% of Total Assets, but the aggregate
of such investments in and advances to such Subsidiaries exceeds 15% of Total
Assets, or (ii) the Borrower's and its other Subsidiaries' proportionate share
of Total Assets (after intercompany eliminations) of each such Subsidiary
exceeds 5% and is less than 10% of Total Assets, but the aggregate
proportionate share of Total Assets of such Subsidiaries exceeds 15% of Total
Assets, then in either case, each such Subsidiary shall constitute a
Significant Subsidiary.
"Spot Rate of Exchange" means (i) in determining the Dollar Equivalent
Amount of a specified Alternate Currency amount as of any date, the spot
exchange rate determined by the Agent in accordance with its usual procedures
for the purchase by the Agent of Dollars with such Alternate Currency at
approximately 10:00 A.M. on the Business Day that is two (2) Business Days
<PAGE>
prior to such date, and (ii) in determining the Alternate Currency Equivalent
Amount of a specified Dollar amount on any date, the spot exchange rate
determined by the Agent in accordance with its usual procedures for the
purchase by the Agent of such Alternate Currency with Dollars at approximately
10:00 A.M. on the Business Day that is two (2) Business Days prior to such
date.
"Stated Maturity Date" means, with respect to any Money Market Loan, the
Stated Maturity Date therefor specified by the Bank in the applicable Money
Market Quote.
"Stockholders' Equity" means, at any time, the stockholders' equity of the
Borrower and its Consolidated Subsidiaries, as set forth or reflected on the
most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Stockholders' Equity generally would include, but not be limited to (i) the
par or stated value of all outstanding Capital Stock, (ii) capital surplus,
(iii) retained earnings, and (iv) various deductions such as (A) purchases of
treasury stock, (B) valuation allowances, (C) receivables due from an
employee stock ownership plan, (D) employee stock ownership plan debt
guarantees, and (e) translation adjustments for foreign currency transactions.
"Subsequent Participant" means each country that adopts the Euro as its
lawful currency after January 1, 1999.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions are at
the time directly or indirectly owned by the Borrower.
"Swing Line" means the revolving line of credit established by the Swing
Line Lender in favor of the Borrower pursuant to Section 2.14.
"Swing Line Borrowing" shall have the meaning given to such term in the
definition of "Borrowing".
"Swing Line Commitment" means a principal amount equal to $50,000,000.
"Swing Line Lender" means initially Bank of America as the lender of Swing
Line Loans under Section 2.14 and thereafter any Bank which is successor to
Bank of America as the Lender of Swing Line Loans under Section 2.14.
"Swing Line Loans" means loans made by the Swing Line Lender to the
Borrower pursuant to Section 2.14 and shall be made at the Agreed Rate.
<PAGE>
"Swing Line Loan Note" means the promissory note of the Borrower
evidencing the Swing Line executed and delivered to the Swing Line Lender as
provided in Section 2.04 substantially in the form of Exhibit A_3.
"Swing Line Outstandings" means, as of any date of determination, the
aggregate principal amount of all Swing Line Loans then outstanding.
"Syndicated Borrowing" shall have the meaning given to such term in the
definition of "Borrowing".
"Syndicated Loans" means Base Rate Loans, Euro_Dollar Loans or Offshore
Loans made pursuant to the terms and conditions set forth in Section 2.01.
"Syndicated Loan Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit A_1, evidencing the obligation of the
Borrower to repay Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Termination Date" means September 17, 2004.
"Third Parties" means all lessees, sublessees, licensees and other users
of the Properties, excluding those users of the Properties in the ordinary
course of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.08(d).
"Total Assets" means the total assets of the Borrower and its Consolidated
Subsidiaries, determined as of the most recently completed Fiscal Quarter in
accordance with GAAP.
"Total Alternate Currency Sublimit" means, with respect to the principal
amount of Offshore Loans, the Dollar Equivalent Amount of fifty percent (50%)
of the Total Revolving Credit Commitment then in effect.
"Total Revolving Credit Commitment" means a principal amount equal to
(a) $800,000,000 or (b) at such time as Exhibit J hereto is amended by the
entering into of one or more amendment agreements pursuant to Section 2.16
hereof, an amount equal to up to $1,200,000,000, as such amounts are reduced
from time to time in accordance with Section 2.08 or Section 2.09.
"Unfunded Vested Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the
PBGC or the Plan under Title IV of ERISA.
<PAGE>
"Unused Commitment" means at any date, with respect to any Bank, an amount
equal to its Commitment less the aggregate outstanding principal amount of
its Syndicated Loans and its pro rata share of any Swing Line Outstandings.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
"Year 2000 Compliant" means all computer applications (including those
affected by information received from its suppliers and vendors) that are
material to the Borrower's or any of its Subsidiaries' business and operations
will on a timely basis be able to perform properly date-sensitive functions
involving all dates on and after January 1, 2000;
"Year 2000 Problem" means the risk that computer applications used by the
Borrower or any of its Subsidiaries (including those affected by information
received from its suppliers and vendors) may be unable to recognize and
perform properly date-sensitive functions involving certain dates on and
after January 1, 2000.
SECTION 1.02. Accounting Terms and Determinations . Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries
delivered to the Banks unless with respect to any such change concurred in by
the Borrower's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this Agreement or any of
the other Loan Documents: (i) the Borrower shall have objected to determining
such compliance on such basis at the time of delivery of such financial
statements, or (ii) the Required Banks shall so object in writing within 30
days after the delivery of such financial statements, in either of which
events such calculations shall be made on a basis consistent with those used
in the preparation of the latest financial statements as to which such
objection shall not have been made (which, if objection is made in respect of
the first financial statements delivered under Section 5.01 hereof, shall mean
the financial statements referred to in Section 4.04).
SECTION 1.03. References . Unless otherwise indicated, references in
this Agreement to "Articles", "Exhibits", "Schedules", "Sections" and other
Subdivisions are references to articles, exhibits, schedules, sections and
other subdivisions hereof.
<PAGE>
SECTION 1.04. Use of Defined Terms . All terms defined in this
Agreement shall have the same defined meanings when used in any of the other
Loan Documents, unless otherwise defined therein or unless the context shall
require otherwise.
SECTION 1.05. Terminology . All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the
plural shall include the singular. Titles of Articles and Sections in this
Agreement are for convenience only, and neither limit nor amplify the
provisions of this Agreement.
SECTION 1.06. Alternate Currencies . For all purposes of this
Agreement (but not for purposes of the preparation of any financial statements
delivered pursuant hereto), the equivalent in any Alternate Currency of an
amount in Dollars, and the equivalent in Dollars of an amount in any Alternate
Currency, shall be determined as set forth in the definitions of Dollar
Equivalent Amount and Alternate Currency Equivalent Amount, as applicable.
SECTION 1.07. Time . Except as otherwise expressly provided, all dates
and times of day specified herein shall refer to such dates and times at
Charlotte, North Carolina.
<PAGE>
ARTICLE II THE CREDITS
SECTION 2.01. Commitments to Lend . Each Bank severally agrees, on the
terms and conditions set forth herein, to make Syndicated Loans in Dollars or
Offshore Currencies (as specified in the Notice of Borrowing) to the Borrower
from time to time before the Termination Date; provided that, immediately
after each such Syndicated Loan is made, (i) the Dollar Equivalent Amount of
the aggregate principal amount outstanding of all Syndicated Loans by such
Bank shall not exceed the amount of its Commitment, (ii) the Dollar Equivalent
Amount of the aggregate principal amount of all Syndicated Loans, Money Market
Loans and Swing Line Loans outstanding shall not exceed the Total Revolving
Credit Commitment, and (iii) the Dollar Equivalent Amount of the aggregate
principal amount of all Offshore Loans shall not exceed the Total Alternate
Currency Sublimit. In the event that, at any time, any of the limits set
forth in (i), (ii) or (iii) of the immediately preceding sentence are
exceeded, the Borrower agrees to immediately make such payments and
prepayments as shall be necessary to comply with each such provision. Each
Syndicated Borrowing under this Section 2.01 shall be in the Dollar Equivalent
Amount of an aggregate principal amount of (i) in the case of Base Rate Loans,
$1,000,000 or any larger multiple of $500,000, and (ii) in the case of
Euro_Dollar Loans and Offshore Loans, $5,000,000 (or the Dollar Equivalent
Amount thereof in any Offshore Currency) or any larger multiple of $500,000
(or the Dollar Equivalent Amount thereof in any Offshore Currency), except
that any such Syndicated Borrowing, whether a Base Rate Borrowing, a
Euro_Dollar Borrowing or an Offshore Borrowing, may be in the Dollar
Equivalent Amount of the aggregate principal amount of the Unused Commitments.
Each Syndicated Borrowing under this Section 2.01 shall be made from the
several Banks ratably in proportion to their respective Commitments. Any
Bank's Money Market Loans shall not reduce such Bank's Commitment, or be
included in calculating its Unused Commitment, for purposes of future
Borrowings under this Section 2.01. Within the foregoing limits, the Borrower
may borrow under this Section 2.01, repay or, to the extent permitted by
Section 2.10, prepay Syndicated Loans and reborrow under this Section 2.01 at
any time before the Termination Date.
SECTION 2.02. Method of Borrowing . (a) The Borrower shall give the
Agent notice (a "Notice of Borrowing"), which shall be substantially in the
form of Exhibit D-1, prior to 12:00 P.M. (Noon) on the same day for a Base Rate
Borrowing, prior to 12:00 P.M. (Noon) at least two (2) Business Days prior to
each Euro_Dollar Borrowing, and prior to 10:30 A.M. at least three (3)
Business Days prior to each Offshore Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Business Day,
(ii) the Dollar Equivalent Amount of the aggregate principal amount
of such Borrowing,
(iii) whether the Syndicated Loans comprising such Borrowing are to
be Base Rate Loans, Euro_Dollar Loans or Offshore Loans,
<PAGE>
(iv) in the case of a Euro_Dollar Borrowing or an Offshore
Borrowing, the duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period, and
(v) in the case of an Offshore Borrowing, the Offshore Currency
of such Borrowing.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly notify
each Bank of the contents thereof and of such Bank's ratable share of such
Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
(c) At approximately 11:00 A.M. two (2) Business Days preceding the date
specified for each Offshore Loan, the Agent shall determine the Advance Date
Exchange Rate and the applicable Adjusted Offshore Interbank Offered Rate.
Not later than 11:45 A.M. two (2) Business Days preceding the date specified
for each Offshore Loan, the Agent shall provide the Borrower and each Bank
notice by telefacsimile transmission of the Advance Date Exchange Rate
applicable to such Offshore Loan, and the applicable Alternate Currency
Equivalent Amount and Dollar Equivalent Amount of such Offshore Loan and the
applicable Adjusted Offshore Interbank Offered Rate.
(d) Not later than 2:00 P.M. on the date of each Syndicated Borrowing,
each Bank shall (except as provided in paragraph (d) of this Section) make
available its ratable share of such Syndicated Borrowing, in Dollars or the
Dollar Equivalent Amount (as of two (2) Business Days prior to the date of
such Loan) of the applicable Offshore Currency immediately available in
Charlotte, North Carolina, to the Agent at its address referred to in Section
9.01. Unless any applicable condition specified in Article III has not been
satisfied or waived, the Agent will make the funds so received from the Banks
available to the Borrower at the Agent's aforesaid address not later than 4:30
P.M. on the date of any relevant Syndicated Borrowing. Unless the Agent
receives notice from a Bank, at the Agent's address referred to in or
specified pursuant to Section 9.01, (i) in the case of a Base Rate Borrowing,
no later than 1:30 P.M. on the same day as such Base Rate Borrowing and (ii)
in the case of any other type of Syndicated Borrowing, no later than 4:00 P.M.
on the Business Day before the date of a Syndicated Borrowing, stating that
such Bank will not make a Loan in connection with such Syndicated Borrowing,
the Agent shall, in relation to the Banks, be entitled to assume that such
Bank will make a Loan in connection with such Syndicated Borrowing and, in
reliance on such assumption, the Agent may (but shall not be obligated to)
make available such Bank's ratable share of such Syndicated Borrowing to the
Borrower for the account of such Bank. If the Agent makes any such Bank's
ratable share of a Borrowing available to the Borrower, the Agent shall
promptly notify (which notice may be telephonic) the Borrower of the identity
of the Bank for whom such funds were advanced and the amount of such advance.
The Agent shall promptly notify (which notice may be telephonic) the Borrower
of the details of any notice received from any Bank stating that any such Bank
does not intend to make its ratable share of funds available in connection
<PAGE>
with any relevant Borrowing. If the Agent makes such Bank's ratable share
available to the Borrower and such Bank does not in fact make its ratable
share of such Syndicated Borrowing available on such date, the Agent shall be
entitled to recover such Bank's ratable share from such Bank or the Borrower
(and for such purpose shall be entitled to charge such amount to any account
of the Borrower maintained with the Agent upon prior notice to the Borrower),
together with interest thereon for each day during the period from the date of
such Syndicated Borrowing until such sum shall be paid in full at a rate per
annum equal to the rate at which the Agent reasonably and in good faith
determines that it obtained (or could have obtained) overnight federal funds
to cover such amount for each such day during such period, provided that any
such payment by the Borrower of such Bank's ratable share and interest thereon
shall be without prejudice to any rights that the Borrower may have against
such Bank. If the Agent does not exercise its option to advance funds for the
account of such Bank, it shall forthwith notify the Borrower of such decision.
(e) If any Bank makes a new Syndicated Loan hereunder (or if the
Swing Line Lender makes a Swing Line Loan under Section 2.14) on a day on
which the Borrower is to repay all or any part of an outstanding Syndicated
Loan from such Bank, such Bank shall apply the proceeds of its new Syndicated
Loan (or, in the case of the Swing Line Lender, Swing Line Loan) to make such
repayment as a Refunding Loan and only an amount equal to the difference
(if any) between the amount being borrowed and the amount of such Refunding
Loan shall be made available by such Bank to the Agent as provided in
paragraph (d) of this Section (or, in the case of a Swing Line Loan, by the
Swing Line Lender pursuant to Section 2.14), or remitted by the Borrower to
the Agent as provided in Section 2.12, as the case may be.
(f) Notwithstanding anything to the contrary contained in this Agreement,
including, without limitation Section 2.01 and Section 2.03, no Borrowing may
be made if there shall have occurred a Default or an Event of Default, which
Default or Event of Default shall not have been cured or waived.
(g) In the event that a Notice of Borrowing fails to specify whether the
Syndicated Loans comprising such Syndicated Borrowing are to be Base Rate
Loans, Euro_Dollar Loans or Offshore Loans, such Syndicated Loans shall be
made as Base Rate Loans in Dollars. If the Borrower is otherwise entitled
under this Agreement to repay any Syndicated Loans maturing at the end of an
Interest Period applicable thereto with the proceeds of a new Syndicated
Borrowing, and the Borrower fails to repay such Syndicated Loans using its own
moneys and fails to give a Notice of Borrowing in connection with such new
Syndicated Borrowing, a new Syndicated Borrowing shall be deemed to be made on
the date such Syndicated Loans mature in an amount equal to the Dollar
Equivalent Amount of the principal amount of the Syndicated Loans so maturing
and in the same currencies as the Syndicated Loans so maturing, and the
Syndicated Loans comprising such new Syndicated Borrowing shall be Base Rate
Loans.
(h) Notwithstanding anything to the contrary contained herein, including,
without limitation Section 2.01 and Section 2.03, there shall not be more
than ten (10) Euro_Dollar Loans, Offshore Loans and/or Money Market Loans
outstanding at any given time.
<PAGE>
SECTION 2.03. Money Market Loans . (a) In addition to making Syndicated
Borrowings, the Borrower may, as set forth in this Section 2.03, request the
Banks to make offers to make Money Market Borrowings available to the
Borrower in Dollars or any Alternate Currency. The Banks may, but shall have
no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.03, provided that:
(i) there may be no more than ten (10) Euro_Dollar Loans, Offshore
Loans and/or Money Market Loans outstanding at any given time; and
(ii) the Dollar Equivalent Amount of the aggregate principal
amount of all Money Market Loans, together with the Dollar Equivalent Amount
of the aggregate principal amount of all Syndicated Loans and all Swing Line
Loans, at any one time outstanding shall not exceed the Total Revolving Credit
Commitment at such time.
(b) When the Borrower wishes to request offers to make Money Market Loans,
it shall give the Agent (which shall promptly notify the Banks) notice
substantially in the form of Exhibit G hereto (a "Money Market Quote Request")
so as to be received (x) in the case of Money Market Loans in Dollars, no
later than 12:00 P.M. (Noon) at least one (1) Business Day prior to the date
of the Money Market Borrowing proposed therein, or (y) in the case of Money
Market Loans in an Alternate Currency, no later than 10:30 A.M. at least three
(3) Business Days prior to the date of the Money Market Borrowing proposed
therein, or (z) in either case, such other time and date as the Borrower and
the Agent, with the consent of the Required Banks, may agree, specifying:
(i) the proposed date of such Money Market Borrowing,
which shall be a Business Day (the "Borrowing Date");
(ii) the maturity date (or dates) (each a "Stated Maturity
Date") for repayment of each Money Market Loan to be made as part of such
Money Market Borrowing (which Stated Maturity Date shall be that date
occurring from one (1) day to 270 days from the date of such Money Market
Borrowing); provided, that the Stated Maturity Date for any Money Market Loan
may not extend beyond the Termination Date (as in effect on the date of such
Money Market Quote Request);
(iii) the aggregate amount of principal to be received by
the Borrower as a result of such Money Market Borrowing, which shall be at
least $1,000,000 (or the Dollar Equivalent Amount thereof in any Alternate
Currency), and in larger integral multiples of $500,000 (or the Dollar
Equivalent Amount thereof in any Alternate Currency), but shall not cause
the limits specified in Section 2.03(a) to be violated; and
<PAGE>
(iv) the currency of such Money Market Borrowing.
The Borrower may request offers to make Money Market Loans having up to three
(3) different Stated Maturity Dates in a single Money Market Quote Request;
provided, that the request for each separate Stated Maturity Date shall be
deemed to be a separate Money Market Quote Request for a separate Money Market
Borrowing, and provided further, that each request in a different currency,
whether in Dollars or an Alternate Currency, shall be deemed to be a separate
Money Market Quote Request for a separate Money Market Borrowing.
(c) (i) Each Bank may, but shall have no obligation to, submit
a response containing an offer to make a Money Market Loan substantially in
the form of Exhibit H hereto (a "Money Market Quote") in response to any Money
Market Quote Request; provided, that, if the Borrower's request under Section
2.03(b) specified more than one (1) Stated Maturity Date and/or more than one
(1) currency, such Bank may, but shall have no obligation to, make a single
submission containing a separate offer for each such Stated Maturity Date
and/or each such currency, and each such separate offer shall be deemed to be
a separate Money Market Quote. Each Money Market Quote must be submitted to
the Agent not later than (x) in the case of a proposed Money Market Borrowing
that is in an Alternate Currency, 10:30 A.M. on the day that is at least two
(2) Business Days prior to the Borrowing Date, and (y) in the case of a
proposed Money Market Loan that is in Dollars, 10:30 A.M. on the Borrowing
Date; provided that any Money Market Quote submitted by Bank of America may be
submitted, and may only be submitted, if Bank of America notifies the Borrower
of the terms of the offer contained therein not later than 15 minutes prior to
the time that the other Banks must have submitted their respective Money
Market Quotes. Subject to Section 6.01, any Money Market Quote so made shall
be irrevocable except with the written consent of the Agent given on the
instructions of the Borrower.
(ii) Each Money Market Quote shall specify:
(A) the proposed Borrowing Date and Stated Maturity Date
therefor;
(B) the currency of such Money Market Loan;
(C) the principal amounts of the Money Market Loan which the
quoting Bank is willing to make for the applicable Money Market Quote, which
principal amounts (x) may be greater than or less than the Commitment of the
quoting Bank, (y) shall be at least $1,000,000 (or the Dollar Equivalent Amount
thereof in any Alternate Currency) or a larger integral multiple of $500,000
(or the Dollar Equivalent Amount thereof in any Alternate Currency), and (z)
may not exceed the Dollar Equivalent Amount of the principal amount of the
Money Market Borrowing for which offers were requested;
<PAGE>
(D) the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) offered for each such Money Market
Loan, (such amounts being hereinafter referred to as the "Money Market Rate");
and
(E) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Borrower, no Money Market Quote
shall contain qualifying, conditional or similar language or propose terms
other than or in addition to those set forth in the applicable Money Market
Quote Request (other than setting forth the maximum principal amounts of the
Money Market Loan which the quoting Bank is willing to make for the
applicable Interest Period) and, in particular, no Money Market Quote may be
conditioned upon acceptance by the Borrower of all (or some specified
minimum) of the principal amount of the Money Market Loan for which such
Money Market Quote is being made.
(d) The Agent shall as promptly as practicable after the Money Market
Quote is submitted, but in any event not later than (x) in the case of Money
Market Loans in Dollars, 11:30 A.M. on the Borrowing Date and (y) in the case
of Money Market Loans in an Alternate Currency, 11:30 A.M. on the day that is
at least two (2) Business Days prior to the Borrowing Date, notify the
Borrower of the terms (i) of any Money Market Quote submitted by a Bank that
is in accordance with Section 2.03(c) and (ii) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Agent unless such subsequent Money Market Quote is submitted solely to correct
a manifest error in such former Money Market Quote. The Agent's notice to the
Borrower shall specify (A) the aggregate principal amounts of the Money Market
Borrowing for which Money Market Quotes have been received and (B) the
respective principal amounts and Money Market Rates so offered by each Bank
(identifying the Bank that made each Money Market Quote).
(e) Not later than (i) in the case of Money Market Loans in Dollars,
12:30 P.M. on the Borrowing Date and (ii) in the case of Money Market Loans in
an Alternate Currency, 12:30 P.M. on the day that is at least two (2) Business
Days prior to the Borrowing Date, the Borrower shall notify the Agent of its
acceptance or nonacceptance of the Money Market Quotes so notified to it
pursuant to Section 2.03(d) (and the failure of the Borrower to give such
notice by such time shall constitute nonacceptance) and the Agent shall
promptly notify each affected Bank. In the case of acceptance, such notice
shall specify the aggregate principal amount of Money Market Quotes for each
Stated Maturity Date that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market
Borrowing may not exceed the applicable amount set forth in the related
Money Market Quote Request;
<PAGE>
(ii) the aggregate principal amount of each Money Market Loan
comprising a Money Market Borrowing shall be at least $1,000,000 (or the
Dollar Equivalent Amount thereof in any Offshore Currency) and in larger
multiples of $500,000 (or the Dollar Equivalent Amount thereof in any
Alternate Currency), but shall not cause the limits specified in Section
2.03(a) to be violated;
(iii) acceptance of Money Market Quotes may only be made in
ascending order of Money Market Rates, beginning with the lowest rate so
offered; and
(iv) the Borrower may not accept any Money Market Quote where the
Agent has advised the Borrower that such Money Market Quote fails to
comply with Section 2.03(c)(ii) or otherwise fails to comply with the
requirements of this Agreement (including without limitation,
Section 2.03(a)).
If Money Market Quotes are made by two (2) or more Banks with the same Money
Market Rates for a greater aggregate principal amount than the amount in
respect of which Money Market Quotes are accepted for the related Stated
Maturity Date (after taking into account the acceptance of all Money Market
Quotes with lower Money Market Rates, if any, offered by any Bank for such
related Stated Maturity Date), then the principal amount of Money Market Loans
in respect of which such Money Market Quotes are accepted shall be allocated
by the Borrower among such Banks as nearly as possible in proportion to the
aggregate principal amount of such Money Market Quotes. Determinations by the
Borrower of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
(f) Any Bank whose Money Market Quote has been accepted shall, not
later than 1:30 P.M. on the Borrowing Date, make the appropriate amount of
such Money Market Loan available to the Agent at its address referred to in
Section 9.01 in immediately available funds. The amount so received by the
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the Borrower on such date by depositing the same, in immediately
available funds, not later than 4:30 P.M., in an account of the Borrower
maintained with Bank of America.
SECTION 2.04. Notes . (a) The Syndicated Loans of each Bank shall be
evidenced by a single Syndicated Loan Note payable to the order of such Bank
for the account of its Lending office in an amount equal to the original
principal amount of such Bank's Commitment.
(b) The Money Market Loans made by any Bank to the Borrower shall be
evidenced by a single Money Market Loan Note payable to the order of such Bank
for the account of its Lending Office in an amount equal to the original
principal amount of the aggregate Commitments.
(c) The Swing Line Loans shall be evidenced by a single Swing Line
Loan Note payable to the order of the Swing Line Lender for the account of its
Lending Office in an amount equal to the Swing Line Commitment.
<PAGE>
(d) Upon receipt of each Bank's Notes pursuant to Section 3.01, the
Agent shall deliver such Notes to such Bank. Each Bank shall record, and
prior to any transfer of its Notes shall endorse on the schedules forming a
part thereof appropriate notations to evidence, the date, amount and maturity
of, and effective interest rate for, each Loan made by it, the date and amount
of each payment of principal made by the Borrower with respect thereto, and
such schedules of each such Bank's Notes shall constitute rebuttable
presumptive evidence of the respective principal amounts owing and unpaid on
such Bank's Notes; provided, that the failure of any Bank to make any such
recordation or endorsement shall not affect the obligation of the Borrower
hereunder or under the Notes or the ability of any Bank to assign its Notes.
Each Bank is hereby irrevocably authorized by the Borrower so to endorse its
Notes and to attach to and make a part of any Note a continuation of any such
schedule as and when required. In order to verify the Loans outstanding from
time to time, at the request of the Borrower, the Agent shall furnish the
Borrower with its records of transactions under this Agreement, in reasonable
detail.
SECTION 2.05. Maturity of Loans . (a) Each Syndicated Loan included in
any Syndicated Borrowing shall mature, and the principal amount thereof shall
be due and payable, on the last day of the Interest Period (if any) applicable
to such Borrowing.
(b) Each Money Market Loan included in any Money Market Borrowing
shall mature, and the principal amount thereof shall be due and payable upon
the Stated Maturity Date therefor.
(c) Each Swing Line Loan included in any Swing Line Borrowing shall
mature, and the principal amount thereof shall be due and payable, on the date
that is fourteen (14) days after the date of such Swing Line Borrowing.
(d) Notwithstanding the foregoing, the outstanding principal amount of
the Loans, if any, together with all accrued but unpaid interest thereon, if
any, shall be due and payable on the Termination Date.
SECTION 2.06. Interest Rates . (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum, equal to the
Base Rate for such date plus the Applicable Margin. Such interest shall be
payable quarterly in arrears on the last business day of each March, June,
September and December, commencing on September 30, 1999, until the
Termination Date.
(b) Each Euro_Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a
rate per annum equal to the sum of the Applicable Margin plus the applicable
Adjusted London Interbank Offered Rate for such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of
three months after the first day thereof.
<PAGE>
(c) Each Offshore Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a
rate per annum equal to the sum of the Applicable Margin plus the applicable
Adjusted Offshore Interbank Offered Rate for such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof
and, if such Interest Period is longer than three months, at intervals of
three months after the first day thereof.
(d) Each Swing Line Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until
it becomes due, at a rate per annum equal to the Agreed Rate. Such interest
shall be payable on the maturity date of such Swing Line Loan, but in no event
later than fourteen (14) days after the making of such Swing Line Loan
(e) Each Money Market Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Money Market Loan is
made until it becomes due, at a rate per annum, equal to the applicable Money
Market Rate set forth in the relevant Money Market Quote. Such interest shall
be payable on the Stated Maturity Date thereof, and, if the Stated Maturity
Date occurs more than three months after the date of the relevant Money Market
Loan, at intervals of three months after the first day thereof.
(f) In the event of default in payment of any principal on the Loans,
interest on the overdue principal amount (and, to the extent permitted by
applicable law, all accrued interest thereon) shall automatically and without
notice bear interest at the Default Rate.
SECTION 2.07. Fees; Calculations . (a) The Borrower shall pay to the
Agent for the ratable account of each Bank a facility fee (the "Facility Fee")
on the Total Revolving Credit Commitment in effect for any relevant period,
irrespective of usage, as follows: (i) if the Borrower's ratio of Consolidated
Funded Debt to Consolidated Total Tangible Capital is equal to or less than
0.25 to 1.0, 0.055%, (ii) if the Borrower's ratio of Consolidated Funded Debt
to Consolidated Total Tangible Capital is greater than 0.25 to 1.0 but less
than or equal to 0.35 to 1.0, 0.060%, (iii) if the Borrower's ratio of
Consolidated Funded Debt to Consolidated Total Tangible Capital is greater
than 0.35 to 1.0 but less than or equal to 0.45 to 1.0, 0.075%, and (iv) if
the Borrower's ratio of Consolidated Funded Debt to Consolidated Total
Tangible Capital is greater than 0.45 to 1.0, 0.095%. The Facility Fee shall
accrue at all times from and including the Closing Date to but excluding the
Termination Date and shall be payable, in arrears, on each March 31, June 30,
September 30 and December 31 and on the Termination Date.
(b) On any day on which the Dollar Equivalent Amount of the aggregate
outstanding principal amount of all Loans (including the Syndicated Loans,
Money Market Loans and Swing Line Loans), collectively, exceeds fifty percent
(50%) of the Total Revolving Credit Commitment, the Borrower shall pay to the
Agent for the ratable account of each Bank a utilization fee (the "Utilization
Fee") of 0.10% on the Dollar Equivalent Amount of the aggregate outstanding
<PAGE>
amount of the Syndicated Loans. The Utilization Fee shall accrue on each day
that the Dollar Equivalent Amount of the aggregate outstanding principal
amount of the Loans exceeds fifty percent (50%) of the Total Revolving Credit
Commitment from and including the Closing Date to and including the
Termination Date, and shall be payable, in arrears, on the last Business Day
of each March, June, September and December, and on the Termination Date,
commencing on September 30, 1999.
(c) In determining the amounts to be paid by the Borrower pursuant to
Sections 2.06(b), 2.06(c) and 2.07(a), the Borrower and the Banks shall refer
to the Borrower's most recent financial statements delivered to the Banks
pursuant to Section 5.01(a) (together with the Compliance Certificate
delivered in connection therewith, the "Audited Statements") and Section
5.01(b) (together with the Compliance Certificate delivered in connection
therewith, the "Unaudited Statements"); provided, that, should any relevant
Audited Statements or Unaudited Statements be delivered on a date later than a
Performance Pricing Determination Date, any necessary changes in the
Applicable Margin and fees to be paid shall not be effective, except to the
extent hereinafter provided to the contrary within this Section 2.07(b), until
the next succeeding Performance Pricing Determination Date (as such term is
hereinafter defined); provided, further, that, should the Audited Statements
reflect a ratio of Consolidated Funded Debt to Consolidated Total Tangible
Capital other than the ratio of Consolidated Funded Debt to Consolidated Total
Tangible Capital determined by the Unaudited Statements for the third Fiscal
Quarter, then (i) should the Audited Statements reveal that the Borrower
should have paid interest and fees at a higher rate for the period from the
last Performance Pricing Determination Date to the next Performance Pricing
Determination Date then the Borrower shall immediately pay to the Banks such
amounts as are necessary to cause the Banks to have received the appropriate
return, and (ii) should the Audited Statements reveal that the Borrower should
have paid interest and fees at a lower rate for the period from the last
Performance Pricing Determination Date to the next Performance Pricing
Determination Date, then, so long as no Default shall be in existence, the
Banks shall promptly pay to the Borrower such amounts as are necessary to
cause the Banks to have received the appropriate return. For purposes hereof,
"Performance Pricing Determination Date" shall mean each date that occurs 45
days after the end of each of the first three (3) Fiscal Quarters, and 90 days
after the end of the last Fiscal Quarter, of the Borrower. All determinations
hereunder shall be made by the Agent unless the Required Banks shall object to
any such determination. Notwithstanding the foregoing, for purposes of
determining the amounts to be paid by the Borrower pursuant to Sections
2.06(b), 2.06(c) and 2.07(a) until the Performance Pricing Determination Date
which occurs on or about December 15, 1999, the ratio of Consolidated Funded
Debt to Consolidated Total Tangible Capital shall conclusively be presumed to
be greater than 0.25 to 1.0 but less than 0.35 to 1.0.
(d) The Borrower shall pay to the Agent, for the account and sole
benefit of the Agent, such fees and other amounts at such times as agreed by
the Agent and the Borrower, or either of them.
<PAGE>
SECTION 2.08. Optional Termination or Reduction of Commitments . The
Borrower may, upon at least three (3) Business Days' notice to the Agent
(which notice the Agent shall promptly forward to the Banks), terminate at any
time, or proportionately reduce the Unused Commitments from time to time by an
aggregate amount of at least $5,000,000, or any larger multiple of $1,000,000.
If the Commitments are terminated in their entirety, all accrued fees (as
provided under Section 2.07) shall be due and payable on the effective date of
such termination.
SECTION 2.09. Termination of Commitments . The Commitments shall
terminate on (i) the Termination Date or (ii) upon any earlier date specified
in any notice of termination sent by the Agent (acting at the direction of the
Required Banks) to the Borrower following a Change in Control, and upon any
such termination, the Loans (together with accrued interest thereon and fees
payable with respect thereto) then outstanding shall be due and payable on
such date.
SECTION 2.10. Optional Prepayments . (a) The Borrower may, upon notice
to the Agent (which notice the Agent shall promptly forward to the Banks) and
payment to the Agent, for the ratable benefit of the Banks, of any amounts
required by Section 8.05, prepay any Base Rate Borrowing (to the extent not
precluded by Section 2.10(b)) in whole or in part at any time, in a minimum
amount of at least $500,000, or any larger multiple of $500,000, by paying the
principal amount to be prepaid together with accrued interest thereon to the
date of prepayment. Each such optional prepayment shall be applied to prepay
ratably the Loans of the several Banks included in such relevant Borrowing.
(b) Subject to any and all payments required pursuant to the
provisions of Article VIII hereof, the Borrower may prepay all or any portion
of the principal amount of any Money Market Loan, Euro_Dollar Loan or Offshore
Loan prior to the end of the relevant Stated Maturity Date or Interest Period,
respectively, applicable to such Loan, in a minimum amount of at least
$500,000 (or the Dollar Equivalent Amount thereof in any Alternate Currency),
or any larger multiple of $500,000 (or the Dollar Equivalent Amount thereof in
any Alternate Currency).
(c) Upon receipt of a notice of prepayment pursuant to this Section
2.10, the Agent shall promptly notify each Bank of the contents thereof and of
such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.11. Mandatory Prepayment . On each date on which the
Commitments are reduced pursuant to Section 2.08, the Borrower shall repay or
prepay such principal amount of the outstanding Loans (together with interest
accrued thereon), as may be necessary so that after such payment the aggregate
unpaid principal amount of the Loans does not exceed the amount of the Total
Revolving Credit Commitment, as then reduced.
<PAGE>
SECTION 2.12. General Provisions as to Payments . (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of
fees hereunder, not later than 1:00 P.M. on the date when due, without offset,
in federal funds or other funds immediately available in Charlotte, North
Carolina, to the Agent at its address referred to in Section 9.01. The Agent
will promptly distribute to each Bank (and, following the occurrence and
during the continuance of an Event of Default, for application by such Bank
against amounts owing to such Bank by the Borrower in such order as such Bank
shall elect) its ratable share of each such payment received by the Agent for
the account of the Banks; provided, that, should the Agent actually receive
any relevant payment from the Borrower prior to 1:00 P.M. on the date when
due, the Agent shall initiate the distribution process (by wire or otherwise)
to such Bank of each such Bank's ratable portion of any payment received by
the Agent prior to 5:00 P.M.
(b) Whenever any payment of principal of, or interest on, the Base
Rate Loans, Swing Line Loans or Money Market Loans shall be due on a day which
is not a Business Day, the date for payment thereof shall be extended to the
next succeeding Business Day. Whenever any payment of principal of or
interest on, the Euro_Dollar Loans or Offshore Loans shall be due on a day
which is not a Business Day, the date for payment thereof shall be extended to
the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Business Day.
(c) All payments of principal, interest and fees and all other amounts
to be made by the Borrower pursuant to this Agreement with respect to any Loan
or fee relating thereto shall be paid without deduction for, and free from,
any tax, imposts, levies, duties, deductions, or withholdings of any nature
now or at anytime hereafter imposed by any governmental authority or by any
taxing authority thereof or therein excluding in the case of each Bank, taxes
imposed on or measured by its net income, and franchise taxes imposed on it,
by the jurisdiction under the laws of which such Bank (as the case may be) is
organized or any political subdivision thereof and, in the case of each Bank,
taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's applicable Lending Office or any political
subdivision thereof (all such non_excluded taxes, imposts, levies, duties,
deductions or withholdings of any nature being "Taxes"). In the event that
the Borrower is required by applicable law to make any such withholding or
deduction of Taxes with respect to any Loan or fee or other amount, the
Borrower shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to any Bank in respect of which such
deduction or withholding is made all receipts and other documents evidencing
such payment and shall pay to such Bank additional amounts as may be necessary
in order that the amount received by such Bank after the required withholding
or other payment shall equal the amount such Bank would have received had no
such withholding or other payment been made. If no withholding or deduction
of Taxes are payable in respect to any Loan or fee relating thereto, the
Borrower shall furnish any, at such Bank's request, a certificate from each
applicable taxing authority or an opinion of counsel acceptable to such, in
either case stating that such payments are exempt from or not subject to
withholding or deduction of Taxes. If the Borrower fails to provide such
original or certified copy of a receipt evidencing payment of Taxes or
certificate(s) or opinion of counsel of exemption, the Borrower hereby agrees
to compensate such Bank for, and indemnify them with respect to, the tax
consequences of the Borrower's failure to provide evidence of tax payments or
tax exemption.
<PAGE>
Each Bank agrees, as soon as practicable after request by it of a
request by the Borrower to do so, to file all appropriate forms and take other
appropriate action to obtain a certificate or other appropriate document from
the appropriate governmental authority in the jurisdiction imposing the
relevant taxes, establishing that it is entitled to receive payments of
principal and interest under this Agreement and the Notes without deduction
and free from withholding of any Taxes imposed by such jurisdiction; provided,
that, if it is unable, for any reason, to establish such exemption, or to file
such forms and, in any event, during such period of time as such request for
exemption is pending, the Borrower shall nonetheless remain obligated under
the terms of the immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.12(c), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided, however, if at
any time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower and the Banks
contained in this Section 2.12(c) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by
such provisions (i) shall be made based upon the circumstances of such
Participant, Assignee or other Transferee, and (ii) constitute a continuing
agreement and shall survive the termination of this Agreement and the payment
in full or cancellation of the Notes.
SECTION 2.13. Computation of Interest and Fees . Interest on the Loans
shall be computed on the basis of a year of 365/366 days, as to Base Rate
Loans and Swing Line Loans, and 360 days, as to Euro_Dollar Loans, Offshore
Loans and Money Market Loans, in each case for the actual number of days
elapsed, calculated as to each Interest Period or Stated Maturity Date, as
applicable, from and including the first day thereof to but excluding the last
day thereof. Facility Fees and any other fees payable hereunder from time to
time shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.14. Swing Line . (a) Notwithstanding any other provision
of this Agreement to the contrary, in order to administer the facilities
provided for herein in an efficient manner and to minimize the transfer of
funds between the Agent and the Banks, the Swing Line Lender shall make
available Swing Line Loans in Dollars to the Borrower prior to the Termination
Date. The Swing Line Lender shall not be obligated to make any Swing Line
Loan pursuant hereto (i) if to the actual knowledge of the Swing Line Lender
the Borrower is not in compliance with all the conditions to the making of any
Loans set forth in this Agreement, (ii) if after giving effect to such Swing
Line Loan, the Swing Line Outstandings exceed the Swing Line Commitment, or
(iii) if after giving effect to such Swing Line Loan, the aggregate
outstanding principal amount of all Loans exceeds the Total Revolving Credit
Commitment. The Company may, subject to the conditions set forth in the
preceding sentence, borrow, repay and reborrow under this Section 2.14.
Unless notified to the contrary by the Swing Line Lender, Swing Line
Borrowings shall be made in the minimum amount of $1,000,000 or, if greater,
in amounts which are integral multiples of $500,000, or in the amount
necessary to effect a Refunding Loan, upon written request by telefacsimile
transmission, effective upon receipt, by the Borrower made to the Swing Line
<PAGE>
Lender not later than 12:00 P.M. (Noon) on the Business Day of the requested
Swing Line Borrowing. Each such Notice of Borrowing shall specify the amount
of the Swing Line Borrowing and the date of borrowing, and shall be in the
form of Exhibit D-2, with appropriate insertions. Upon receipt of a Notice of
Borrowing as set forth in this Section 2.14(a), the Swing Line Lender shall
make the funds of such Swing Line Loan available to the Borrower at the
address of the Agent not later than 4:30 P.M. on the day of such Swing Line
Borrowing. Unless notified to the contrary by the Swing Line Lender, each
repayment of a Swing Line Loan shall be in an amount which is an integral
multiple of $1,000,000 or the aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the account
of the Swing Line Lender. Swing Line Loans shall bear interest solely at the
Agreed Rate. Sections 2.06(d) and (f), with respect to the payment of all
accrued and unpaid interest on Swing Line Loans and the accrual of interest at
the Default Rate, shall apply to all Swing Line Loans.
(c) Upon the making of a Swing Line Loan, each Bank shall be deemed to
have purchased from the Swing Line Lender a participation therein in an amount
equal to the pro rata portion of that Bank's Commitment. Upon demand made by
the Swing Line Lender, each Bank shall, according to its pro rata
participation of such Swing Line Loan, promptly provide to the Swing Line
Lender its purchase price therefor in an amount equal to its pro rata
participation therein. Any amount paid by a Bank pursuant to demand of the
Swing Line Lender of the purchase price of its participation in any such Swing
Line Loan shall when made be deemed to be (i) provided that the conditions to
making Syndicated Loans shall be satisfied, a Base Rate Loan, and (ii) in all
other cases, the funding by each Bank of the purchase price of its
participation in such Swing Line Loan. The obligation of each Bank so to
provide its purchase price to the Swing Line Lender shall be absolute and
unconditional and shall not be affected by the occurrence of an Event of
Default or any other occurrence or event.
The Borrower, at its option and subject to the terms hereof, may request
a Borrowing pursuant to Section 2.02 in an amount sufficient to repay Swing
Line Outstandings on any date and the Agent shall provide from the proceeds of
such Borrowing to the Swing Line Lender the amount necessary to repay such
Swing Line Outstandings (which the Swing Line Lender shall then apply to such
repayment) and credit any balance of the Borrowing in immediately available
funds in the manner directed by the Borrower pursuant to Section 2.02(d). The
proceeds of such Borrowings shall be paid to the Swing Line Lender for
application to the Swing Line Outstandings and the Banks shall then be deemed
to have made Loans in the amount of such Borrowings. The Swing Line shall
continue in effect until the Termination Date, at which time all Swing Line
Outstandings and accrued interest thereon shall be due and payable in full.
SECTION 2.15. Utilization of Offshore Currencies . (a) Syndicated Loans
shall be available only in Offshore Currencies and in Dollars.
<PAGE>
(b) Each request for a Syndicated Loan or a Money Market Loan in an
Alternate Currency under a Notice of Borrowing or a Money Market Quote Request
shall constitute the Borrower's request for a Loan of the Dollar Equivalent
Amount of the amount of the Alternate Currency specified in such Notice of
Borrowing or Money Market Quote Request, as the case may be, and for such Loan
to be made available by the Banks to the Borrower in the Alternate Currency
Equivalent Amount of such Dollar Equivalent Amount (determined based on the
Advance Date Exchange Rate applicable to such Loan). The principal amount
outstanding on any Loan in an Alternate Currency shall be recorded in the
Agent's records in Dollars as if the Loan had initially been made in Dollars,
based on the Dollar Equivalent Amount of the Loan in an Alternate Currency, as
reduced from time to time by the Dollar Equivalent Amount (based on the
Advance Date Exchange Rate applicable to such Loan) of any principal payments
with respect to such Loan. For the purposes of determining the maximum
principal amount outstanding hereunder, it is intended by the parties that all
Loans shall be the functional equivalent of Loans made and repaid (based on
the Advance Date Exchange Rate for each Loan) in Dollars. It is recognized
that one or more Banks may elect to record Loans in Alternate Currencies. The
Agent shall maintain records sufficient to identify at any time (i) the
Advance Date Exchange Rate with respect to each Loan in an Alternate Currency
and (ii) the portion of the aggregate principal amount of all Loans
outstanding attributable to each Loan.
(c) Without prejudice and in addition to any method of conversion or
rounding prescribed by any EMU Legislation and without prejudice to (i) the
liabilities for Debt of the Borrower to the Banks for Loans under or pursuant
to this Agreement or (ii) each Bank's Commitment, any reference in this
Agreement to a minimum amount (or an integral multiple thereof) in a national
currency of a Subsequent Participant to be paid to or by the Agent shall
immediately, upon it becoming a Subsequent Participant, be replaced by a
reference to such reasonably comparable amount (or an integral multiple
thereof) in the Euro unit as the Agent may determine based on the applicable
exchange rate of such national currency for the Euro.
(d) The Agent may from time to time further modify the terms of, and
practices contemplated by, this Agreement with respect to the Euro to the
extent the Agent determines, in its reasonable discretion, that such
modifications are necessary or convenient to reflect new laws, regulations,
customs or practices developed in connection with the Euro. The Agent may
effect such modifications, and this Agreement shall be deemed so amended,
without the consent of the Borrower or Banks to the extent such modifications
are not disadvantageous to the Borrower and the Banks, upon notice thereto.
SECTION 2.16. Increase in Total Revolving Credit Commitment . (a) The
Borrower, the Agent and any Bank or any other Person qualifying as an Assignee
but for the absence of an assignment, or any combination of such Banks and
such Persons (collectively, "New Banks"), may (in their sole discretion) enter
into one or more amendment agreements substantially in the form of Exhibit I
attached hereto and incorporated herein by reference without further approval
of the Banks (or any other New Bank) pursuant to which each New Bank agrees to
incur or increase, as the case may be, its Commitment so as to make available
to the Borrower, subject to all conditions herein set forth, Loans in the
maximum aggregate Dollar Equivalent Amount (for all New Banks) of up to
$400,000,000 thereby increasing the Total Revolving Credit Commitment to up to
the Dollar Equivalent Amount of $1,200,000,000; provided that
<PAGE>
(i) there shall not then have occurred and be continuing any
Event of Default;
(ii) each such increase shall be in an amount at least equal to
$50,000,000 or an integral multiple of $10,000,000 in excess thereof; and
(iii) the Borrower shall execute and deliver to the Agent (A) a
Syndicated Loan Note for each New Bank, (B) a Money Market Note for each
Bank, (C) board resolutions of the Borrower certified by its secretary or
assistant secretary approving and adopting such Syndicated Loan Notes and
Money Market Loan Notes and authorizing the execution and delivery thereof,
and (D) the legal opinion of either the general counsel of the Borrower or
special counsel to the Borrower as to the due authorization, execution and
delivery of the Syndicated Loan Notes and Money Market Loan Notes, the
enforceability thereof and no conflict thereof with the articles of
incorporation, bylaws and material agreements of the Borrower, all in form
and substance substantially similar to such opinions delivered on the Closing
Date in satisfaction of Section 3.01(d).
(b) Upon the execution, delivery and acceptance of the documents
required by this Section 2.16, each New Bank shall have all of the rights and
obligations of a Bank under this Agreement. The Agent shall provide the Banks
with notice of the revised Total Revolving Credit Commitment and the
Commitment of each Bank, including the New Banks.
ARTICLE III CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing . The obligation of each
Bank to make a Syndicated Loan, and of the Swing Line Lender to make a Swing
Line Loan, on the occasion of the first Syndicated Borrowing or Swing Line
Borrowing is subject to the satisfaction of the conditions set forth in
Section 3.02 and receipt by the Agent of the following:
(a) from each of the parties hereto of a duly executed counterpart of
this Agreement signed by such party;
(b) a duly executed (i) Syndicated Loan Note and (ii) Money Market
Loan Note for the account of each Bank complying with the provisions of
Section 2.04;
(c) a duly executed Swing Line Loan Note for the account of the Swing
Line Lender complying with the provisions of Section 2.04;
(d) an opinion letter (together with any opinions of local counsel
relied on therein) of Kelly R. Caffarelli, counsel to the Borrower,
substantially in the form of Exhibit B, dated as of the Closing Date, and
covering such additional matters relating to the transactions contemplated
hereby as the Agent or any Bank may reasonably request;
<PAGE>
(e) a certificate (the "Closing Certificate") substantially in the
form of Exhibit F, dated as of the Closing Date, signed by a principal
financial officer of the Borrower, to the effect that (i) no Default has
occurred and is continuing on the date of the first Borrowing and (ii) the
representations and warranties of the Borrower contained in Article IV are
true on and as of the date of the first Borrowing hereunder;
(f) all documents which the Agent or any Bank may reasonably request
relating to the existence of the Borrower, the corporate authority for and the
validity of this Agreement, the Notes, and the other Loan Documents and any
other matters relevant hereto, or thereto, all in form and substance
reasonably satisfactory to the Agent, including, without limitation, a
certificate of incumbency of the Borrower, signed by the Secretary or an
Assistant Secretary of the Borrower, certifying as to the names, true
signatures and incumbency of the officer or officers, respectively, of the
Borrower authorized to execute and deliver the Loan Documents, and certified
copies of the following items, for the Borrower: (i) Certificate/Articles of
Incorporation, (ii) Bylaws, (iii) a certificate of the Secretary of State of
the state of incorporation as to the good standing of the Borrower as a
corporation in that state, and (iv) the action taken by the Board of Directors
authorizing the execution, delivery and performance of this Agreement, the
Notes, and the other Loan Documents;
(g) a Notice of Borrowing or Money Market Quote Request, if applicable;
(h) evidence reasonably satisfactory to the Agent that the Borrower
has in force and effect insurance satisfying the requirements of Section 5.10;
(i) letter agreement whereby the Credit Agreement dated as of December
20, 1995 by and among The Home Depot, Inc. and certain of the Banks is
terminated and evidence of payment of all amounts outstanding thereunder; and
(j) such other certificates or documents as the Agent or any Bank may
reasonably request.
SECTION 3.02. Conditions to All Borrowings . The obligation of each
Bank to make a Syndicated Loan on the occasion of each Syndicated Borrowing
and of the Swing Line Lender to make a Swing Line Loan, other than a Borrowing
which consists solely of a Refunding Loan, is subject to the satisfaction of
the following conditions:
(a) receipt by the Agent (or, in the case of a Swing Line Loan, the
Swing Line Lender) of a Notice of Borrowing;
(b) the fact that, immediately before and after giving effect to such
Borrowing, no Default or Event of Default shall have occurred and be
continuing;
<PAGE>
(c) the fact that the representations and warranties of the Borrower
contained in Article IV-A of this Agreement (other than the representation and
warranty found in Section 4.04(b) and, after June 30, 2000, Section 4.18)
shall be true on and as of the date of such Borrowing;
(d) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Syndicated Loans of each Bank will not
exceed the amount of its Commitment;
(e) the fact that, immediately after such Borrowing, the Swing Line
Outstandings will not exceed the Swing Line Commitment;
(f) the fact that, immediately after such Borrowing, the sum of (i)
the Dollar Equivalent Amount of the aggregate outstanding principal amount of
the Syndicated Loans, and (ii) the Dollar Equivalent Amount of the aggregate
outstanding principal amount of the Money Market Loans, and (iii) the Dollar
Equivalent Amount of the aggregate outstanding principal amount of the Swing
Line Loans will not exceed the Total Revolving Credit Commitment; and
(g) the fact that, immediately after such Borrowing, the Dollar
Equivalent Amount of the aggregate principal amount of all Offshore Loans
shall not exceed the Total Alternate Currency Sublimit.
Each Borrowing (whether a Syndicated Borrowing, a Money Market Borrowing or a
Swing Line Borrowing) hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the truth and
accuracy of the facts specified in paragraphs (b), (c), (d), (e) and (f) of
this Section, except to the extent they relate to a particular date only.
ARTICLE IV_A REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power . The Borrower is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, is duly qualified to transact
business in every jurisdiction where the failure to so qualify would
reasonably be expected to have or cause a Material Adverse Effect, and has all
corporate powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, except where the
failure to possess any such licenses, authorizations, consents, or approvals
would not reasonably be expected to have or cause a Material Adverse Effect.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention . The execution, delivery and performance by the Borrower of
this Agreement, the Notes and the other Loan Documents (i) are within the
Borrower's corporate powers, (ii) have been duly authorized by all necessary
corporate action, (iii) require no action by or in respect of or filing with,
any governmental body, agency or official, (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation or
of the certificate of incorporation or by_laws of the Borrower or of any
material agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or any of its Significant Subsidiaries, and (v) do
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Significant Subsidiaries.
<PAGE>
SECTION 4.03. Binding Effect . This Agreement constitutes a valid and
binding agreement of the Borrower enforceable in accordance with its terms,
and the Notes and the other Loan Documents, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations
of the Borrower enforceable in accordance with their respective terms,
provided that the enforceability hereof and thereof is subject in each case to
general principles of equity and the bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally.
SECTION 4.04. Financial Information . (a) The consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of January 31, 1999
and the related consolidated statements of income, stockholders' equity and
cash flows for the Fiscal Year then ended, reported on by KPMG LLP, copies of
which have been delivered to each of the Banks, and the unaudited consolidated
financial statements of the Borrower for the interim period ended August 1,
1999, copies of which have been delivered to each of the Banks, fairly
present, in conformity with GAAP, the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such dates and their
consolidated results of operations and cash flows for such periods stated,