EXHIBIT 10.01
CREDIT AGREEMENT
dated as of
May 6, 2016,
among
MACYS, INC.,
MACYS RETAIL
HOLDINGS, INC.
The Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.
and
BANK OF AMERICA, N.A.,
as Administrative Agents
and
JPMORGAN CHASE BANK, N.A.,
as Paying Agent
___________________________
CREDIT SUISSE
SECURITIES (USA) LLC, U.S. BANK NATIONAL ASSOCIATION AND WELLS FARGO BANK,
NATIONAL ASSOCIATION,
as Syndication Agents
JPMORGAN CHASE BANK, N.A.,
MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED, CREDIT SUISSE
SECURITIES (USA) LLC, U.S. BANK NATIONAL ASSOCIATION, AND WELLS FARGO
SECURITIES, LLC,
as Joint Bookrunners and Lead Arrangers
|
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01....... Defined
Terms........................................................................................
1
SECTION 1.02....... Classification of Loans and Borrowings............................................... 22
SECTION 1.03....... Terms
Generally...................................................................................
22
SECTION 1.04....... Accounting Terms;
GAAP.................................................................... 23
ARTICLE II
The Credits
SECTION 2.01.......
Commitments.......................................................................................
23
SECTION 2.02....... Loans and
Borrowings.........................................................................
23
SECTION 2.03....... Requests for Revolving
Borrowings.................................................... 24
SECTION 2.04....... Competitive Bid
Procedure.................................................................. 25
SECTION 2.05....... Letters of
Credit...................................................................................
27
SECTION 2.06....... Funding of
Borrowings........................................................................
35
SECTION 2.07....... Interest
Elections.................................................................................
35
SECTION 2.08....... Termination and Reduction of
Commitments..................................... 37
SECTION 2.09....... Repayment of Loans; Evidence of
Debt............................................. 37
SECTION 2.10....... Prepayment of
Loans..........................................................................
38
SECTION 2.11.......
Fees.....................................................................................................
39
SECTION 2.12.......
Interest................................................................................................
40
SECTION 2.13....... Alternate Rate of
Interest....................................................................
40
SECTION 2.14....... Increased
Costs...................................................................................
41
SECTION 2.15....... Break Funding
Payments....................................................................
42
SECTION 2.16....... Withholding of Taxes;
Gross-Up........................................................ 43
SECTION 2.17....... Payments Generally; Pro Rata Treatment; Sharing of
Set‑offs.......... 47
SECTION 2.18....... Mitigation Obligations; Replacement of
Lenders............................... 49
SECTION 2.19....... Increase in
Commitments....................................................................
50
SECTION 2.20....... Currency Fluctuations.........................................................................
51
SECTION 2.21....... Extension of Maturity
Date................................................................. 51
SECTION 2.22....... Defaulting Lenders..............................................................................
52
ARTICLE III
Representations and Warranties
SECTION 3.01.......
Organization........................................................................................
54
SECTION 3.02....... Powers; Authorization; No Conflicts;
Enforceability......................... 54
SECTION 3.03.......
Approvals............................................................................................
55
SECTION 3.04....... Financial Condition; No Material Adverse
Change............................ 55
SECTION 3.05.......
Litigation.............................................................................................
55
SECTION 3.06....... Investment Company
Status................................................................ 55
SECTION 3.07.......
ERISA.................................................................................................
55
SECTION 3.08....... Compliance with
Laws........................................................................ 55
SECTION 3.09....... Anti-Corruption Laws and
Sanctions.................................................. 56
SECTION 3.10....... Federal Reserve
Regulations............................................................... 56
ARTICLE IV
Conditions
SECTION 4.01....... Effective
Date......................................................................................
56
SECTION 4.02....... Each Credit
Event................................................................................
58
ARTICLE V
Affirmative Covenants
SECTION 5.01....... Financial Statements; Ratings Change and Other
Information........... 58
SECTION 5.02.......
Existence..............................................................................................
60
SECTION 5.03....... Payment of
Obligations........................................................................
60
SECTION 5.04....... Maintenance of Properties;
Insurance.................................................. 60
SECTION 5.05....... Books and Records; Inspection
Rights................................................. 61
SECTION 5.06....... Compliance with
Laws......................................................................... 61
SECTION 5.07....... Use of Proceeds and Letters of Credit..................................................
61
ARTICLE VI
Negative Covenants
SECTION 6.01....... Subsidiary
Indebtedness.......................................................................
63
SECTION 6.02.......
Liens.....................................................................................................
63
SECTION 6.03....... Fundamental Changes; Conduct of
Business....................................... 65
SECTION 6.04....... Sale and Leaseback
Transactions......................................................... 65
SECTION 6.05....... Leverage
Ratio.....................................................................................
66
SECTION 6.06....... Interest Coverage Ratio........................................................................
66
ARTICLE VII
Events of Default
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01.......
Notices............................................................................................................
71
SECTION 9.02....... Waivers;
Amendments....................................................................................
72
SECTION 9.03....... Expenses; Indemnity; Damage
Waiver........................................................... 73
SECTION 9.04....... Successors and
Assigns...................................................................................
75
SECTION 9.05.......
Survival...........................................................................................................
78
SECTION 9.06....... Counterparts; Integration;
Effectiveness........................................................ 79
SECTION 9.07.......
Severability.....................................................................................................
79
SECTION 9.08....... Right of Setoff................................................................................................
79
SECTION 9.09....... Governing Law; Jurisdiction; Consent to Service of
Process......................... 80
SECTION 9.10....... WAIVER OF JURY
TRIAL........................................................................... 80
SECTION 9.11.......
Headings..........................................................................................................
81
SECTION 9.12.......
Confidentiality.................................................................................................
81
SECTION 9.13....... Interest Rate
Limitation...................................................................................
81
SECTION 9.14....... Patriot
Act........................................................................................................
82
SECTION 9.15....... Conversion of
Currencies.................................................................................
82
SECTION 9.16....... No Fiduciary
Duty............................................................................................
82
SECTION 9.17....... Non-Public
Information...................................................................................
83
SECTION 9.18....... Acknowledgement and Consent to Bail-In of EEA
Financial Institutions...... 83
SECTION 9.19....... Waiver of Notice of Termination Under Existing
Credit Agreement.............. 84
SECTION 9.20....... Conflict with Loan
Documents........................................................................ 84
SCHEDULES:
Schedule 2.01 Commitments and LC Commitments
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
EXHIBITS
:
Exhibit A -- Form of Assignment and
Assumption.
Exhibit B -- Form of Guarantee Agreement
Exhibit C -- Form of U.S. Tax Certificate
CREDIT AGREEMENT dated as of May 6, 2016, among MACYS, INC.;
MACYS RETAIL HOLDINGS, INC.; the LENDERS party hereto; JPMORGAN CHASE BANK,
N.A. and BANK OF AMERICA, N.A. as Administrative Agents; and JPMORGAN CHASE
BANK, N.A., as Paying Agent.
The parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION
1.01.
Defined
Terms.
As used in this Agreement, the following terms have the
meanings specified below:
ABR
, when used in reference to any
Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
Acquisition
means the Parents
previously completed acquisition of May.
Adjusted LIBO Rate
means, with respect
to any Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1.0%) equal to (a) the
LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve
Rate.
Administrative Agent
means each of
JPMorgan Chase Bank, N.A. and Bank of America, N.A., each in its capacity as
administrative agent for the Lenders hereunder and under the other Loan
Documents.
Administrative Questionnaire
means an
Administrative Questionnaire in a form supplied by the Paying Agent.
Affiliate
means, with respect to a
specified Person, another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified.
Agents
means the Paying Agent and each
Administrative Agent.
Alternate Base Rate
means, for any
day, a rate per annum equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the NYFRB Rate on such day plus 1/2 of 1.0% per
annum and (c) the Adjusted LIBO Rate for a one month Interest Period on
such day (or if such day is not a Business Day, the immediately preceding
Business Day) plus 1.0% per annum;
provided
that, for the avoidance of
doubt, for purposes of calculating the Alternate Base Rate, the Adjusted LIBO
Rate for any day shall be based on the LIBO Rate determined at approximately
11:00 a.m. London time on such day. Any change in the Alternate Base
Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively.
Alternate Currency
means any currency
other than dollars as to which a Spot Exchange Rate may be calculated.
Alternate Currency Letter of Credit
means any Letter of Credit which provides for the payment of drawings in an Alternate
Currency.
Anti-Corruption Laws
means all laws, rules, and regulations of any
jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to
bribery or corruption.
Applicable Percentage
means, with
respect to any Lender, the percentage of the Total Commitments represented by
such Lenders Commitment;
provided
that if any Defaulting Lender exists
at such time, the Applicable Percentages shall be calculated disregarding such
Defaulting Lenders Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments and to
any Lenders status as a Defaulting Lender at the time of determination.
Applicable Rate
means, for any day,
with respect to any Eurodollar Revolving Loan or ABR Loan, or with respect
to the facility fees payable hereunder, as the case may be, the applicable rate
per annum set forth below under the caption Adjusted LIBOR Spread,
ABR Spread or Facility Fee Rate, as the case may be, based upon either
the Public Debt Ratings or the Leverage Ratio in effect on such date, with the
Applicable Rate being determined by reference to the Level more favorable to
the Borrower;
provided
that the Applicable Rate may never be based upon
a Level that is more favorable to the Borrower than the Level that is two
Levels above that of the Public Debt Ratings:
Level
|
Public Debt Rating
S&P/Moodys
|
Leverage Ratio
|
Adjusted LIBOR Spread
|
ABR Spread
|
Facility Fee Rate
|
1
|
A-/A3
|
<
1.0
to 1.0
|
0.90%
|
0.00%
|
0.100%
|
2
|
BBB+/Baa1
|
<
1.5
to 1.0
|
1.00%
|
0.00%
|
0.125%
|
3
|
BBB/Baa2
|
<
2.0
to 1.0
|
1.10%
|
0.10%
|
0.150%
|
4
|
BBB-/Baa3
|
<
2.5 to 1.0
|
1.30%
|
0.30%
|
0.200%
|
5
|
Lower
|
> 2.5 to
1.0
|
1.50%
|
0.50%
|
0.250%
|
For purposes of the
foregoing, (i) the Leverage Ratio shall be determined
as of the end of the fiscal quarter for Parent for which consolidated financial
statements have theretofore been most recently delivered pursuant to Section
5.01(a) or 5.01(b) (or, prior to any such delivery, Section 5.01(a) or 5.01(b)
of the Existing Credit Agreement), (ii) if Parent and the Borrower fail to
deliver the consolidated financial statements required to be delivered pursuant
to Section 5.01(a) or 5.01(b) within the time period specified herein for such
delivery then, during the period commencing on and including the date such
financial statements were required to have been delivered and until the
delivery thereof, the Applicable Rate shall be determined by reference to the
Public Debt Ratings, (iii) if either Moodys or S&P shall not have in
effect a Public Debt Rating (other than by reason of the circumstances referred
to in the last sentence of this definition), then the Level established based
on the Public Debt Rating shall be determined by reference to the remaining
Public Debt Rating and the rating assigned to the Parents senior unsecured
debt obligations by Fitch if Fitch is then rating the Parents senior unsecured
debt obligations, and if neither Moodys nor S&P has in effect a Public
Debt Rating (other than by reason of the circumstances referred to in the last
sentence of this definition), then the Applicable Rate shall be determined by
reference to the Leverage Ratio and/or the rating assigned to the Parents
senior unsecured debt obligations by Fitch if Fitch is then rating the Parents
senior unsecured debt obligations; (iv) if the Public Debt Ratings established
or deemed to have been established by Moodys and S&P shall fall within
different Levels, then the Level established based on the Public Debt Rating
shall be based on the higher of the two Public Debt Ratings unless one of the
two Public Debt Ratings is two or more Levels lower than the other, in which
case the Level established based on the Public Debt Rating shall be determined
by reference to the Level next below that of the higher of the two Public Debt
Ratings; and (v) if the Public Debt Ratings established or deemed to have been
established by Moodys, S&P and Fitch shall be changed (other than as a
result of a change in the ratings system of Moodys, S&P or Fitch), such
change shall be effective as of the date on which it is first announced by the
applicable rating agency, irrespective of when notice of such change shall have
been furnished pursuant to Section 5.01 or otherwise. Each change in the
Applicable Rate (a) resulting from a change in the Leverage Ratio shall apply
during the period commencing on and including the Business Day following the
date of delivery pursuant to Section 5.01(a) or 5.01(b) of the consolidated
financial statements indicating such change and (b) resulting from a change in
the Public Debt Ratings shall apply during the period commencing on the
effective date of such change and, in each case, ending on the date immediately
preceding the effective date of the next such change. If the rating
system of Moodys, S&P or Fitch shall change, or if any such rating agency
shall cease to be in the business of rating corporate debt obligations, the
Borrower and the Lenders shall negotiate in good faith to amend this definition
to reflect such changed rating system or the unavailability of ratings from
such rating agency and, pending the effectiveness of any such amendment (unless
two of such rating agencies are unaffected by the foregoing), the Applicable
Rate shall be determined by reference to the Leverage Ratio.
Assignment and Assumption
means an
assignment and assumption entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 9.04), and
accepted by the Paying Agent, in the form of Exhibit A or any other form
approved by the Paying Agent.
Augmenting Lender
has the meaning set
forth in Section 2.19(a).
Auto-Extension Letter of Credit
has
the meaning set forth in Section 2.05(o).
Availability Period
means the period from
and including the Effective Date to but excluding the earlier of the Maturity
Date and the date of termination of the Commitments.
Bail-In
Action
means the exercise of any Write-Down and Conversion Powers by the
applicable EEA Resolution Authority in respect of any liability of such EEA
Financial Institution.
Bail-In
Legislation
means, with respect to any EEA Member Country implementing
Article 55 of Directive 2014/59/EU of the European Parliament and of the
Council of the European Union, the implementing law for such EEA Member Country
from time to time which is described in the EU Bail-In Legislation Schedule.
Board
means the Board of Governors of
the Federal Reserve System of the United States of America.
Borrower
means Macys Retail Holdings,
Inc., a New York corporation.
Borrowing
means (a) Revolving
Loans of the same Type, made, converted or continued on the same date and, in
the case of Eurodollar Loans, as to which a single Interest Period is in effect
or (b) a Competitive Loan or group of Competitive Loans of the same Type
made on the same date and as to which a single Interest Period is in effect.
Borrowing Request
means a request by
the Borrower for a Revolving Borrowing in accordance with Section 2.03.
Business Day
means any day that is not
a Saturday, Sunday or other day on which commercial banks in New York City
are authorized or required by law to remain closed;
provided
that,
(a) when used in connection with a Eurodollar Loan, the term
Business
Day
shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market and (b) when used in
connection with an Alternate Currency Letter of Credit, the term Business Day
shall also exclude any day on which commercial banks in the principal financial
center (as determined by the Paying Agent) of such Alternate Currency are
authorized or required by law to remain closed.
Calculation Date
means the last
Business Day of March, June, September and December of each year.
Capital Lease Obligations
of any
Person means the obligations of such Person to pay rent or other amounts under
any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be classified
and accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
Change in Control
means (a) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or group (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in effect
on the date hereof), of Equity Interests representing more than 50% of the
aggregate ordinary voting power represented by the issued and outstanding
Equity Interests of Parent; (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of Parent by Persons who were
not (i) nominated by the board of directors of
Parent (ii) appointed by directors so nominated or (iii) approved by the
board of directors of Parent as director candidates prior to their election; or
(c) after the Effective Date the Borrower ceases to be a direct, wholly
owned subsidiary of Parent.
Change in Law
means the occurrence,
after the date of this Agreement, of any of the following: (a) the
adoption of any rule, regulation, treaty or other law, (b) any change in
any rule, regulation, treaty or other law or in the administration,
interpretation, implementation, or application thereof by any Governmental
Authority or (c) the making or issuance of any request, rule, guideline or
directive (whether or not having the force of law) of any Governmental
Authority;
provided
that, notwithstanding anything herein to the
contrary, (i) the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith and (ii) all requests, rules,
guidelines or directives promulgated by the Bank for International Settlements,
the Basel Committee on Banking Supervision (or any successor or similar
authority) or the United States regulatory authorities, in each case pursuant
to Basel III, shall in each case be deemed to be a Change in Law, regardless
of the date enacted, adopted, promulgated or issued.
Class
, when used in reference to any
Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans or Competitive Loans.
Code
means the Internal Revenue Code
of 1986, as amended.
Commitment
means, with respect to each
Lender, the commitment of such Lender to make Revolving Loans and to acquire participations
in Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lenders Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lenders Commitment is set forth on Schedule 2.01,
or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial aggregate amount of
the Lenders Commitments is $1,500,000,000.
Commitment Increase
has the meaning
set forth in Section 2.19(b).
Competitive Bid
means an offer by a
Lender to make a Competitive Loan in accordance with Section 2.04.
Competitive Bid Rate
means, with respect to any Competitive Bid, the Margin or the Fixed Rate, as
applicable, offered by the Lender making such Competitive Bid.
Competitive Bid Request
means a
request by the Borrower for Competitive Bids in accordance with
Section 2.04.
Competitive Loan
means a Loan made
pursuant to Section 2.04.
Consenting Lenders
has the meaning set
forth in Section 2.21(b).
Consolidated EBITDA
means, for any
period, (a) the sum of (without duplication and in the case of clauses
(ii) through (viii) to the extent deducted in calculating Consolidated Net
Income) (i) Consolidated Net Income (or net
loss), (ii) interest expense, (iii) income tax expense,
(iv) depreciation expense, (v) amortization expense (including
amortization of (A) excess of cost over net assets acquired,
(B) reorganization value in excess of amounts allocable to identifiable
assets and (C) unearned restricted stock), (vi) non-cash charges for
such period arising from impairment of goodwill, impairment of intangibles or
impairments/write downs of real estate or other long-term assets, (vii)
extraordinary losses and (viii) non-recurring cash charges in an aggregate
amount for all periods commencing on or after February 1, 2015, not to exceed
$300,000,000 (and not more than 20% of which shall be inventory valuation
adjustments pursuant to clause (D) below), in respect of (A) store,
corporate office and support function closings, eliminations, relocations and
divisional realignments, (B) employee severance costs, (C) fees,
costs and expenses resulting from, or incurred in connection with, any of the
foregoing and (D) inventory valuation adjustments resulting from, or incurred
in connection with, any of the foregoing, less (b) the sum of (i) non-recurring or extraordinary gains,
(ii) interest income and (iii) any payments made during such period
that were added as a non-cash charge in a previous period pursuant to clause
(a)(vi) above, in each case in clauses (a) and (b) of Parent and the
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
Consolidated Net Income
means, for any
period, the net income or loss of Parent and the Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
Consolidated Net Interest Expense
means, for any period, the amount (if any) by which (a) interest payable on all
Indebtedness (including the interest component of Capitalized Lease
Obligations, but excluding tender and open market repurchase premiums) and
amortization of deferred financing fees and debt discount in respect of all
Indebtedness exceeds (b) interest income, in each case in clauses (a) and (b),
of Parent and the Subsidiaries, determined on a consolidated basis in
accordance with GAAP;
provided
that any write-ups or write-downs of
long-term Indebtedness of May (including current portions) or its subsidiaries
as a result of the Acquisition, and any related amortization expense resulting
therefrom, shall be disregarded for purposes of determining Consolidated Net
Interest Expense.
Consolidated Net Tangible Assets
means, at any date of determination, (a) the
aggregate amount of assets (less applicable reserves and other properly
deductible items), minus (b) all current liabilities, minus (c) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles, in each case in clauses (a), (b) and (c) of Parent and
the Subsidiaries, determined on a consolidated basis in accordance with GAAP.
Control
means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ability to exercise voting power,
by contract or otherwise.
Controlling
and
Controlled
have meanings correlative thereto.
Declining Lender
has the meaning set
forth in Section 2.21(b).
Default
means any event or condition
which constitutes an Event of Default or which upon notice, lapse of time or
both would, unless cured or waived, become an Event of Default.
Defaulting Lender
means any Lender, as
determined by the Administrative Agents, that has (a) failed to fund any
portion of its Loans or participations in Letters of Credit within three
Business Days of the date required to be funded by it hereunder unless such
Lender notifies the Administrative Agents, the Parent and the Borrower in
writing that such failure is the result of such Lenders determination that one
or more conditions precedent to funding (each of which conditions precedent,
together with any applicable default, shall be specifically identified in such
writing) has not been satisfied, (b) notified Parent, the Borrower, the
Administrative Agents, an Issuing Bank or any Lender in writing that it does
not intend to comply with any of its funding obligations under this Agreement
or has made a public statement to the effect that it does not intend to comply
with its funding obligations under this Agreement or under other agreements in
which it commits to extend credit (unless such writing or public statement
relates to such Lenders obligation to fund a Loan hereunder and states that
such position is based on such Lenders determination that a condition
precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be
satisfied), (c) failed, within three Business Days after request by the
Administrative Agents, to confirm that it will comply with the terms of this
Agreement relating to its obligations to fund prospective Loans and
participations in then outstanding Letters of Credit;
provided
that
confirmation received by the Administrative Agents beyond three Business Days
shall remedy the default under this clause (c), (d) otherwise failed to
pay over to the Administrative Agents or any other Lender any other amount
required to be paid by it hereunder within three Business Days of the date when
due, unless the subject of a good faith dispute, (e)(i)
been adjudicated as, or determined by any Governmental Authority having
regulatory authority over such Person or its assets to be, insolvent or has a
parent company that has been adjudicated as, or determined by any Governmental
Authority having regulatory authority over such Person or its assets to be,
insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding,
or has had a receiver, conservator, trustee or custodian appointed for it, or
has taken any action in furtherance of, or indicating its consent to, approval
of or acquiescence in any such proceeding or appointment or has a direct
or indirect parent company that has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee or custodian
appointed for it, or has taken any action in furtherance of, or indicating its
consent to, approval of or acquiescence in any such proceeding or appointment
(the events described in this clause (e) each, a
Bankruptcy Event
);
provided
that a Bankruptcy Event shall not result solely by virtue of any ownership
interest, or the acquisition of any ownership interest, in such Person by a
Governmental Authority;
provided
,
however
, that such ownership
interest does not result in or provide such Person with immunity from the
jurisdiction of courts within the United States of America or from the
enforcement of judgments or writs of attachment on its assets or permit such
Person (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any agreements made by such Person, or (f) become the subject of a
Bail-In Action, or has a direct or indirect parent company that has, become the
subject of a Bail-In Action.
Documentary LC
means any letter of
credit (other than a Letter of Credit) that is issued by a Person that is not
an Affiliate of Parent for the benefit of a supplier of inventory to Parent or
any Subsidiary to effect payment for such inventory.
dollars
or
$
refers to lawful money of the United States of America.
Dollar Amount
means, with respect to
any Alternate Currency Letter of Credit or LC Disbursement in respect thereof,
the amount determined pursuant to Section 2.05(m).
Dollar Equivalent
means, on any date
of determination, (a) with respect to any amount in dollars, such amount,
and (b) with respect to any amount in any Alternate Currency, the
equivalent in dollars of such amount, determined by the Paying Agent pursuant
to Section 2.20(a) using the relevant Dollar Amount.
Economic Development Transaction
means
a conveyance of real property (which may include improvements thereon and
related assets) made by the Parent or a Subsidiary to a Governmental Authority
(or related industrial development agency) in order to obtain tax exemptions or
other inducements or accommodations in connection with economic development activity;
provided
that (a) the Parent or applicable Subsidiary retains possession
and control of the applicable property pursuant to a lease or similar
arrangement, (b) payments due by the Parent or applicable Subsidiary in connection
therewith are made in order to obtain reduced obligations Parent or such
Subsidiary would otherwise incur or other economic benefits, or offset by
corresponding payments owed by the transferee and (c) title to the applicable
property reverts to the Parent or applicable Subsidiary upon termination of
such lease or similar arrangement.
EEA
Financial Institution
means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an
EEA Resolution Authority, (b) any entity established in an EEA Member Country
which is a parent of an institution described in clause (a) of this definition,
or (c) any financial institution established in an EEA Member Country which is
a subsidiary of an institution described in clause (a) or (b) of this
definition and is subject to consolidated supervision with its parent.
EEA
Member Country
means any member state of the European Union, Iceland,
Liechtenstein and Norway.
EEA
Resolution Authority
means any public administrative authority or any
person entrusted with public administrative authority of any EEA Member Country
(including any delegee) having responsibility for the
resolution of any EEA Financial Institution.
Effective Date
means May 6, 2016.
Equity Interests
means shares of
capital stock, partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the
holder thereof to purchase or acquire any such equity interest.
ERISA
means the Employee Retirement
Income Security Act of 1974, as amended from time to time.
ERISA Affiliate
means any trade or
business (whether or not incorporated) that, together with Parent, is treated
as a single employer under Section 414(b) or (c) of the Code or, solely
for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
ERISA Event
means (a) any reportable
event, as defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for which the 30‑day
notice period is waived); (b) failure by any Plan to meet the minimum
funding standards (as defined in Section 412 of the Code or
Section 302 of ERISA) applicable to such Plan, in each case, whether or
not waived; (c) the filing pursuant to Section 412(c) of the Code or
Section 302(c) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by Parent or
any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by Parent or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by Parent or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by Parent or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from
Parent or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
EU Bail-In Legislation Schedule
means
the EU Bail-In Legislation Schedule published by the Loan Market Association (or
any successor person), as in effect from time to time.
Eurodollar
, when used in reference to
any Loan or Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate (or, in the case of a Competitive Loan, the LIBO Rate).
Event of Default
has the meaning
assigned to such term in Article VII.
Excluded Taxes
means, with respect to
any payment made by any Loan Party under any Loan Document, any of the following
Taxes imposed on or with respect to a Recipient: (a) income or
franchise Taxes imposed on (or measured by) its net income (i)
that are imposed by the United States of America, or by the jurisdiction under
the laws of which such Recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending
office is located, or (ii) that are Other Connection Taxes, (b) any branch
profits Taxes imposed by the United States of America or any similar Taxes
imposed by any other jurisdiction in which the Borrower is located, (c) in
the case of a Non-U.S. Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.18(b)), any U.S. Federal withholding Taxes
resulting from any law in effect on the date such Non-U.S. Lender becomes a
party to this Agreement (or designates a new lending office), except to the
extent that such Non-U.S. Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding Taxes
pursuant to Section 2.16(a), (d) Taxes attributable to such Recipients
failure to comply with Section 2.16(f) and (e) any withholding Taxes imposed
under FATCA.
Existing Credit Agreement
means the
Credit Agreement dated as of May 10, 2013, as amended on May 30, 2013, among
Parent, the Borrower, the lenders party thereto, JPMorgan Chase Bank, N.A. and
Bank of America, N.A., as administrative agents and JPMorgan Chase Bank, N.A.,
as paying agent.
Existing Indebtedness
has the meaning
assigned to such term in Section 6.01(b).
Existing Letter of Credit
means any
letter of credit issued for the account of Parent or the Borrower and
outstanding on the Effective Date under the Existing Credit Agreement;
provided
that the issuer of such letter of credit is a Lender and such Lender becomes an
Issuing Bank under this Agreement pursuant to Section 2.05.
Existing Maturity Date
has the meaning
set forth in Section 2.21(c).
Extension Date
has the meaning set
forth in Section 2.21(b).
FATCA
means Sections 1471 through 1474
of the Code, as of the date of this Agreement (or any amended or successor
version that is substantively comparable and not materially more onerous to
comply with), any regulations or official interpretations thereof, any
agreements entered into pursuant to Section 1471(b) of the Code, any
intergovernmental agreement entered into in connection with the implementation
of such sections of the Code and any official interpretation of any such
intergovernmental agreement.
Federal Funds Effective Rate
means,
for any day, the weighted average (rounded upwards, if necessary, to the next
1/100 of 1.0%) of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the NYFRB as the Federal Funds
Effective Rate.
Financial Officer
means the chief
financial officer, principal accounting officer, treasurer or controller of
Parent or the Borrower, as applicable.
Fitch
means Fitch Ratings Inc. or any
successor thereto.
Fixed Rate
means, with respect to any
Competitive Loan (other than a Eurodollar Competitive Loan), the fixed rate of
interest per annum specified by the Lender making such Competitive Loan in its
related Competitive Bid.
Fixed Rate Loan
means a Competitive
Loan bearing interest at a Fixed Rate.
GAAP
means generally accepted
accounting principles in the United States of America.
Governmental Authority
means the
government of the United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
Guarantee
of or by any Person (the
guarantor
)
means any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the
primary obligor
) in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct
or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security for the
payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Indebtedness or other obligation
or (d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation;
provided
,
that the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business.
Guarantee Agreement
means the
Guarantee Agreement among the Parent, the Borrower and the Paying Agent
substantially in the form of Exhibit B.
Indebtedness
of any Person means,
without duplication, (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments (other than performance, surety and appeals bonds
arising in the ordinary course of business), (c) all obligations of such
Person upon which interest charges are customarily paid, (d) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations
of such Person in respect of the deferred purchase price of property or
services (other than obligations for property (excluding real property, capital
stock and property subject to capital leases) and services purchased, and
expense accruals and deferred compensation items arising in the ordinary course
of business), (f) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers
acceptances. The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such Person is a
general partner) to the extent such Person is liable therefor under applicable
law as a result of such Persons ownership interest in or other relationship
with such entity, except to the extent the terms of such Indebtedness provide
that such Person is not liable therefor.
Indemnified Taxes
means
(a) Taxes, other than Excluded Taxes, imposed on or with respect to any
payment made by or on account of any obligation of any Loan Party under any
Loan Document and (b) to the extent not otherwise described in clause (a),
Other Taxes.
Initial Loans
has the meaning set
forth in Section 2.19(b).
Interest Coverage Ratio
means, at any
date of determination, the ratio of (a) Consolidated EBITDA for the
Measurement Period then most recently ended to (b) Consolidated Net
Interest Expense for such Measurement Period.
Interest Election Request
means a
request by the Borrower to convert or continue a Revolving Borrowing in
accordance with Section 2.07.
Interest Payment Date
means
(a) with respect to any ABR Loan, the last day of each March, June,
September and December, (b) with respect to any Eurodollar Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months duration after the first day
of such Interest Period and (c) with respect to any Fixed Rate Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Fixed Rate Borrowing with an Interest Period of
more than 90 days duration (unless otherwise specified in the applicable
Competitive Bid Request), each day prior to the last day of such Interest
Period that occurs at intervals of 90 days duration after the first day
of such Interest Period, and any other dates that are specified in the applicable
Competitive Bid Request as Interest Payment Dates with respect to such
Borrowing.
Interest Period
means (a) with
respect to any Eurodollar Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the calendar month
that is seven days or one, two, three or six months thereafter, as the
Borrower may elect and (b) with respect to any Fixed Rate Borrowing, the
period (which shall not be less than seven days or more than
180 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request;
provided
, that (i) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day
and (ii) any Interest Period pertaining to a Eurodollar Borrowing that
commences on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last calendar month
of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the case of
a Revolving Borrowing, thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
Interpolated Screen Rate
means, with
respect to any Eurodollar Loan for any Interest Period, the rate per annum that
results from interpolating on a linear basis between (a) the applicable
Screen Rate for the longest maturity for which a Screen Rate is available that
is shorter than such Interest Period and (b) the applicable Screen Rate
for the shortest maturity for which a Screen Rate is available that is longer
than such Interest Period, in each case as of 11:00 a.m., London time two
Business Days prior to the first day of such Interest Period.
IRS
means the United States Internal
Revenue Service.
ISP 98
means, with respect to any
Letter of Credit, the International Standby Practices 1998 published by the
Institute of International Banking Law & Practice, Inc. (or such later
version thereof as may be in effect at the time of issuance).
Issuing Bank
means, as the context may
require, (a) JPMorgan Chase Bank, N.A., (b) Bank of America, N.A., (c)
U.S. Bank National Association, (d) Wells Fargo Bank, National Association, (e)
solely in respect of any Existing Letter of Credit, the Person that is the
issuer thereof and (f) any other Lender that becomes an Issuing Bank
pursuant to Section 2.05(k), in each case, in its capacity as an issuer of
Letters of Credit hereunder, and each such Persons successors in such capacity
as provided in Section 2.05(i). Any
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of such Issuing Bank, in which case the term
Issuing Bank shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
Issuing Bank Agreement
means an
agreement referred to in Section 2.05(k) under which a Lender becomes an
Issuing Bank.
LC Commitment
means, as to any Issuing
Bank, the maximum permitted amount of the LC Exposure that may be attributable
to Letters of Credit issued by such Issuing Bank. The initial amount of
each Issuing Banks LC Commitment is set forth in Schedule 2.01 or in the
agreement referred to in such Issuing Banks Issuing Bank Agreement. The
LC Commitment of any Issuing Bank may be increased or decreased by an agreement
between the Borrower and such Issuing Bank.
LC Disbursement
means a payment made
by an Issuing Bank pursuant to a Letter of Credit.
LC Exposure
means, at any time, the
sum of (a) the aggregate undrawn amount of all outstanding Letters of
Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such
time. In the case of any Alternate Currency Letters of Credit or any LC
Disbursement in respect thereof, the LC Exposure attributable thereto shall be
the Dollar Amount thereof. The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.
Lender Parent
means, with respect to
any Lender, any Person in respect of which such Lender is a Subsidiary.
Lenders
means the Persons listed on
Schedule 2.01 and any other Person that shall have become a party hereto
pursuant to an Assignment and Assumption, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Assumption.
Letter of Credit
means each Existing
Letter of Credit and any letter of credit issued pursuant to this Agreement.
Letter of Credit Expiration Date
has
the meaning set forth in Section 2.05(c).
Leverage Ratio
means, at any date of
determination, the ratio of (a) Total Indebtedness as of such date to
(b) Consolidated EBITDA for the Measurement Period (or, if such date is
not the last day of a fiscal quarter, ended on the last day of the fiscal
quarter of Parent most recently ended prior to such date).
LIBO Rate
means, with respect to any
Eurodollar Loan for any Interest Period, the Screen Rate as of 11:00 a.m.,
London time two Business Days prior to the first day of such Interest Period.
Lien
means, with respect to any asset,
(a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or of such asset, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset and (c) in
the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.
Loan Documents
means this Agreement,
the Guarantee Agreement and any promissory notes delivered pursuant to Section
2.09(e).
Loan Parties
means Parent and the
Borrower.
Loans
means the loans made by the
Lenders to the Borrower pursuant to this Agreement.
Margin
means, with respect to any
Competitive Loan bearing interest at a rate based on the LIBO Rate, the
marginal rate of interest, if any, to be added to or subtracted from the LIBO
Rate to determine the rate of interest applicable to such Loan, as specified by
the Lender making such Loan in its related Competitive Bid.
Material Adverse Effect
means an
effect that causes or results in or has a reasonable likelihood of causing or
resulting in any material adverse change in (a) the business, condition
(financial or otherwise), operations, performance or properties of Parent and
the Subsidiaries, taken as a whole, (b) the rights and remedies of any Agent or
any Lender under any Loan Document, (c) the ability of the Loan Parties, taken
as a whole, to perform their obligations under any Loan Document or (d) the
legality, validity or enforceability of any Loan Document.
Material Indebtedness
means
Indebtedness (other than the Loans and Letters of Credit), or obligations in
respect of one or more Swap Agreements, of any one or more of Parent and its
Subsidiaries in an aggregate principal amount exceeding $150,000,000. For
purposes of determining Material Indebtedness, the principal amount of the
obligations of Parent or any Subsidiary in respect of any Swap Agreement at any
time shall be the maximum aggregate amount (giving effect to any netting
agreements) that Parent or such Subsidiary would be required to pay if such
Swap Agreement were terminated at such time.
Material Subsidiary
means, as of any
date of determination, (a) the Borrower and (b) any other Subsidiary
having (i) assets with a value of not less than
5.0% of the total value of the assets of Parent and its consolidated
subsidiaries, taken as a whole, or (ii) Consolidated EBITDA of not less
than 5.0% of the Consolidated EBITDA of Parent and its consolidated
subsidiaries, taken as a whole, in each case as of the end of or for the most
recently completed fiscal year of Parent.
Maturity Date
means the date that is
five years after the Effective Date, as such date may be extended pursuant to
Section 2.21;
provided
that, if such date is not a Business Day, then
the Maturity Date shall be the next succeeding Business Day.
Maturity Date Extension Request
has
the meaning set forth in Section 2.21(a).
May
means The May Department Stores
Company, a Delaware corporation.
Measurement Period
means, as of any
date of determination, the period of four fiscal quarters of Parent most
recently ended on or prior to such date of determination.
Minor Subsidiary
means any Subsidiary
that is not a Material Subsidiary.
MNPI
means material information
concerning Parent, the Borrower and the Subsidiaries and their securities that has not been disseminated in a manner making it available to
investors generally, within the meaning of Regulation FD under the Securities
Act of 1933 and the Securities Exchange Act of 1934.
Moodys
means Moodys Investors
Service, Inc. or any successor thereto.
Multiemployer Plan
means a
multiemployer plan as defined in Section 4001(a)(3)
of ERISA.
Non-Defaulting Lender
means, at any
time, any Lender that is not a Defaulting Lender at such time.
Non-Extension Notice Date
has the
meaning set forth in Section 2.05(o).
Non-U.S. Lender
means a Lender that is
not a U.S. Person.
NYFRB
means the Federal Reserve Bank
of New York.
NYFRB Rate
means, for any day, the
greater of (a) the Federal Funds Effective Rate in effect on such day and (b)
the Overnight Bank Funding Rate in effect on such day (or for any day that is
not a Business Day, on the immediately preceding Business Day); provided that
if none of such rates is published for any day that is a Business Day, the term
NYFRB Rate shall mean the rate for a federal funds transaction quoted at
11:00 a.m. (New York City time) on such day received by the Paying Agent from a
Federal funds broker of recognized standing selected by it; provided further,
that if the NYFRB Rate, determined as provided above, would be less than zero,
the NYFRB Rate shall for all purposes of this Agreement be zero.
Obligations
has the meaning assigned
to such term in the Guarantee Agreement.
OFAC
means the United States Treasury
Department Office of Foreign Assets Control.
Other Connection Taxes
means, with
respect to any Recipient, Taxes imposed as a result of a present or former
connection between such Recipient and the jurisdiction imposing such Taxes
(other than a connection arising from such Recipient having executed,
delivered, become a party to, performed its obligations under, received
payments under, received or perfected a security interest under, or engaged in
any other transaction pursuant to, or enforced, any Loan Document, or sold or
assigned an interest in any Loan or Loan Document).
Other Taxes
means any and all present
or future stamp or documentary taxes or any other excise or property Taxes
arising from any payment made under any Loan Document or from the execution,
delivery or enforcement of, or otherwise with respect to, any Loan Document,
except any such Taxes that are Other Connection Taxes imposed with respect to
an assignment (other than an assignment under Section 2.18(b)).
Overnight Bank
Funding Rate
means, for any day, the rate comprised of both overnight
federal funds and overnight Eurodollar borrowings by US-managed banking offices
of depository institutions (as such composite rate shall be determined by the
NYFRB as set forth on its public website from time to time) and published on
the next succeeding Business Day by the NYFRB as an Overnight Bank Funding Rate
(from and after such date as the NYFRB shall commence to publish such composite
rate).
Parent
means Macys, Inc., a Delaware
corporation.
Participant
has the meaning set forth
in Section 9.04.
Participant Register
has the meaning
set forth in Section 9.04(c).
Patriot Act
means the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107‑56
(signed into law October 26, 2001)).
Paying Agent
means JPMorgan Chase
Bank, N.A., in its capacity as paying agent for the Lenders hereunder and under
the other Loan Documents.
PBGC
means the Pension Benefit
Guaranty Corporation referred to and defined in ERISA and any successor entity
performing similar functions.
Permitted
Encumbrances
means:
(a) Liens imposed by law for taxes that are not yet
due or are being contested in compliance with Section 5.03;
(b) carriers, warehousemens, mechanics, materialmens, repairmens and other like Liens imposed by
law, arising in the ordinary course of business and securing obligations that
are not overdue by more than 30 days or are being contested in good faith
by proper proceedings;
(c) Liens (if any) arising by operation of law and
pledges and deposits made in the ordinary course of business in compliance with
workers compensation, unemployment insurance, old-age pensions and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of
judgments that do not constitute an Event of Default under clause (k) of
Article VII; and
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the ordinary
course of business that do not materially detract from the value of the
affected property to Parent or any Subsidiary or interfere with the ordinary
conduct of business of Parent or any Subsidiary;
provided
that the
term Permitted Encumbrances shall not include any Lien securing Indebtedness.
Person
means any natural person,
corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other
entity.
Plan
means any employee pension
benefit plan (other than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, sponsored, maintained or contributed to by the Borrower or any ERISA
Affiliate.
Platform
has the meaning set forth in
Section 9.17(b).
Prime Rate
means the rate of interest
per annum publicly announced from time to time by JPMorgan Chase Bank, N.A., as
its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
Private Side Lender Representatives
means, with respect to any Lender, representatives of such Lender that are not
Public Side Lender Representatives.
Public Debt Ratings
means, as of any
date of determination, (a) Parents Senior Unsecured Rating most
recently announced by Moodys and (b) Parents Corporate Credit Rating
most recently announced by S&P. If Moodys or S&P shall change
the basis on which such ratings are established, then the foregoing references
shall be to the then equivalent rating by Moodys or S&P, as the case may
be, as determined by the Paying Agent.
Public Side Lender Representatives
means, with respect to any Lender, representatives of such Lender that do not
wish to receive MNPI.
Recipient
means, as applicable,
(a) the Agents, (b) any Lender and (c) any Issuing Bank.
Register
has the meaning set forth in
Section 9.04.
Related Parties
means, with respect to
any specified Person, such Persons Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such Persons
Affiliates.
Required Lenders
means, at any time,
Lenders having Revolving Credit Exposures and unused Commitments representing
more than 50% of the sum of the total Revolving Credit Exposures and unused
Commitments at such time;
provided
that, for purposes of declaring the
Loans to be due and payable pursuant to Article VII, and for all purposes
after the Loans become due and payable pursuant to Article VII and the
Commitments expire or terminate, the outstanding Competitive Loans of the
Lenders shall be included in their respective Revolving Credit Exposures in
determining the Required Lenders.
Reset Date
has the meaning set forth
in Section 2.20(a).
Responsible Officer
means any
executive officer of Parent or any Subsidiary or any other officer of Parent or
any Subsidiary responsible for overseeing or reviewing compliance with this
Agreement or any other Loan Document.
Revolving Credit Exposure
means, with
respect to any Lender at any time, the sum of the outstanding principal amount
of such Lenders Revolving Loans and its LC Exposure at such time.
Revolving Loan
means a Loan made
pursuant to Section 2.03.
S&P
means Standard &
Poors Ratings Service or any successor thereto.
Sanctions
means all economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (a) the U.S. government,
including those administered by OFAC or the U.S. Department of State, (b) the
United Nations Security Council, the European Union, any European Union member
state, Her Majestys Treasury of the United Kingdom or other relevant sanctions
authority.
Sanctioned
Country
means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time
of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
Sanctioned
Person
means, at any time, (a) any Person
listed
in any Sanctions-related list of designated Persons maintained by OFAC, the
U.S. Department of State, the United Nations Security Council, the European
Union, any European Union member state, Her Majestys Treasury of the United
Kingdom or other relevant sanctions authority, (b) any
Person operating, organized or resident in a Sanctioned Country or (c) any
Person owned or controlled by any such Person or Persons described in the
foregoing clauses (a) or (b).
Screen Rate
means, in respect of the
LIBO Rate for any Interest Period, a rate per annum equal to the London
interbank offered rate as administered by the ICE Benchmark Administration (or
any other Person that takes over the administration of such rate) for deposits
in dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period as displayed on the Reuters screen page that
displays such rate (currently LIBOR01) (or, in the event such rate does not
appear on a page of the Reuters screen, on the appropriate page of such other
information service that publishes such rate as shall be selected by the Paying
Agent from time to time in its reasonable discretion). If no Screen Rate
shall be available for a particular Interest Period but Screen Rates shall be
available for maturities both longer and shorter than such Interest Period,
then the Screen Rate for such Interest Period shall be the Interpolated Screen
Rate. Notwithstanding the foregoing, if the Screen Rate, determined as provided
above in this definition, would be less than zero, the Screen Rate shall for
all purposes of this Agreement be zero.
Spot Exchange Rate
means, on any day,
with respect to any Alternate Currency in which an Alternate Currency Letter of
Credit (or LC Disbursement thereunder) is denominated, the spot rate at which
dollars are offered on such day by the applicable Issuing Bank (or the Paying
Agent, in the case of determinations made by it) in London (or, in its
discretion, any other city in which it conducts its foreign exchange activities
in such Alternate Currency) for such Alternate Currency at approximately
11:00 a.m. (local time in London or such other city).
Statutory Reserve Rate
means a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the Paying
Agent is subject for eurocurrency funding (currently
referred to as Eurocurrency Liabilities in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
subsidiary
means, with respect to any
Person (the
parent
) at any date, any corporation, limited liability
company, partnership, association or other entity of which securities or
other ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power or, in the case of a partnership, more than
50% of the general partnership interests are, as of such date, owned,
controlled or held by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
Subsidiary
means any subsidiary of
Parent.
Swap Agreement
means any agreement
with respect to any swap, forward, future or derivative transaction or option
or similar agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value or any similar transaction or any combination of these transactions;
provided
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of Parent or the Subsidiaries shall be a Swap Agreement.
Syndication Agents
means each of
Credit Suisse Securities (USA) LLC, U.S. Bank National Association and Wells
Fargo Bank, National Association, each in its capacity as syndication agent
hereunder.
Taxes
means any and all present or
future taxes, levies, imposts, duties, deductions, withholdings, assessments,
fees or other charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.
Total Commitments
means, at any time,
the aggregate amount of the Lenders Commitments at such time.
Total Indebtedness
means, as of any
date, the aggregate principal amount of Indebtedness of Parent and the
Subsidiaries outstanding as of such date, in the amount that would be reflected
on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP;
provided
that any write-ups or write‑downs
of long-term Indebtedness (including current portions) of May and its
subsidiaries as a result of the Acquisition shall be disregarded.
Trade Letter of Credit
means any
Letter of Credit that is issued for the benefit of a supplier of inventory to
Parent or any Subsidiary to effect payment for such inventory, the conditions
to drawing under which include the presentation to the applicable Issuing Bank
of negotiable bills of lading, invoices and related documents sufficient, in
the judgment of such Issuing Bank, to create a valid and perfected lien on or
security interest in such inventory, bills of lading, invoices and related
documents in favor of such Issuing Bank.
Transactions
means the execution,
delivery and performance by each Loan Party of the Loan Documents to which it
is to be a party, the borrowing of Loans, the use of the proceeds thereof and
the issuance of Letters of Credit hereunder.
Type
, when used in reference to any
Loan or Borrowing, refers to whether the rate of interest on such Loan, or on
the Loans comprising such Borrowing, is determined by reference to the Adjusted
LIBO Rate, the Alternate Base Rate or, in the case of a Competitive Loan or
Borrowing, the LIBO Rate or a Fixed Rate.
U.S. Person
means a United States person within the meaning of Section 7701(a)(30) of the Code.
U.S. Tax Certificate
has the
meaning assigned to such term in Section 2.16(f)(ii)(D)(2).
Withdrawal Liability
means liability to a Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA.
Write-Down and Conversion Powers
means, with respect to any EEA Resolution Authority, the write-down and
conversion powers of such EEA Resolution Authority from time to time under the
Bail-In Legislation for the applicable EEA Member Country, which write-down and
conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02.
Classification of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to by Class
(
e.g.
, a Revolving Loan) or by Type (
e.g.
, a Eurodollar Loan)
or by Class and Type (
e.g.
, a Eurodollar Revolving Loan).
Borrowings also may be classified and referred to by Class (
e.g.
, a
Revolving Borrowing) or by Type (
e.g.
, a Eurodollar Borrowing) or by
Class and Type (
e.g.
, a Eurodollar Revolving Borrowing).
SECTION 1.03.
Terms Generally.
The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words include,
includes and including shall be deemed to be followed by the phrase
without limitation. The word will shall be
construed to have the same meaning and effect as the word shall. Unless
the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any
reference herein to any Person shall be construed to include such Persons
successors and assigns, (c) the words herein, hereof and hereunder,
and words of similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words asset and property shall be construed
to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04.
Accounting Terms; GAAP.
Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time;
provided
that (a) for purposes of determining compliance with
any provision of this Agreement, the determination of whether a lease is to be
treated as an operating lease or capital lease shall be made without giving
effect to any change in accounting for leases pursuant to GAAP resulting from
the implementation of Financial Accounting Standards Board ASU
No. 2016-02, Leases (Topic 842), to the extent such adoption would
require treating any lease (or similar arrangement conveying the right to use)
as a capital lease where such lease (or similar arrangement) would not have
been required to be so treated under GAAP as in effect on December 31,
2015, (b) if the Borrower notifies the Paying Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Paying Agent notifies the Borrower
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith and
(c) notwithstanding any other provision contained herein, all terms of an
accounting or financial nature used herein shall be construed, and all
computations of amounts and ratios referred to herein shall be made, without
giving effect to any election under Financial Accounting Standards Board
Accounting Standards Codification Topic 825, or any successor thereto, to
value any Indebtedness of Parent or any Subsidiary at fair value, as defined
therein.
ARTICLE II
The Credits
SECTION 2.01.
Commitments.
Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving Loans to the
Borrower in dollars from time to time during the Availability Period in an
aggregate principal amount that will not result in (a) such Lenders
Revolving Credit Exposure exceeding such Lenders Commitment or (b) the
sum of the total Revolving Credit Exposures plus the aggregate principal amount
of outstanding Competitive Loans exceeding the Total Commitments. Within
the foregoing limits and subject to the terms and conditions set forth herein,
the Borrower may borrow, prepay and reborrow
Revolving Loans.
SECTION 2.02.
Loans and Borrowings.
(a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Commitments. Each
Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.04. The failure of any Lender to make any Loan required to
be made by it shall not relieve any other Lender of its obligations hereunder;
provided
that the Commitments and Competitive Bids of the Lenders are several and no
Lender shall be responsible for any other Lenders failure to make Loans as
required.
(b) Subject
to Section 2.13, (i) each Revolving
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith, and (ii) each Competitive
Borrowing shall be comprised entirely of Eurodollar Loans or Fixed Rate Loans
as the Borrower may request in accordance herewith. Each Lender at its
option may make any Eurodollar Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan;
provided
that any
exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement.
(c) At the
commencement of each Interest Period for any Eurodollar Revolving Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple of
$5,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of $5,000,000 and not less than $5,000,000;
provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the Total Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e). Each request for a Competitive Borrowing shall be
in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $10,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time;
provided
that there shall not at any time
be more than a total of 10 Eurodollar Revolving Borrowings outstanding.
(d)
Notwithstanding any other provision of this Agreement, the Borrower shall not
be entitled to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.03.
Requests for Revolving Borrowings.
To
request a Revolving Borrowing, the Borrower shall notify the Paying Agent of
such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, three Business Days
before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 12:00 noon, New York City time on the
date of the proposed Borrowing;
provided
that any such notice of an ABR
Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated
by Section 2.05(e) may be given not later than 10:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Paying Agent of a written Borrowing Request in a
form approved by the Paying Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the
requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of
a Eurodollar Borrowing, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term Interest
Period; and
(v) the location and number of the Borrowers account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Revolving Borrowing
is specified, then the requested Revolving Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to
have selected an Interest Period of one months duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Paying Agent shall advise each Lender of the details thereof and of the amount
of such Lenders Loan to be made as part of the requested Borrowing.
SECTION 2.04.
Competitive Bid Procedure.
(a) Subject to the
terms and conditions set forth herein, from time to time during the
Availability Period the Borrower may request Competitive Bids and may (but
shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans;
provided
that the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive Loans
at any time shall not exceed the Total Commitments. To request
Competitive Bids, the Borrower shall notify the Paying Agent of such request by
telephone, in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, four Business Days before the date of
the proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before the date
of the proposed Borrowing;
provided
that the Borrower may submit up to
(but not more than) three Competitive Bid Requests on the same day, but a
Competitive Bid Request shall not be made within five Business Days after the
date of any previous Competitive Bid Request, unless any and all such previous
Competitive Bid Requests shall have been withdrawn or all Competitive Bids
received in response thereto rejected. Each such telephonic Competitive
Bid Request shall be confirmed promptly by hand delivery or telecopy to the
Paying Agent of a written Competitive Bid Request in a form approved by the
Paying Agent and signed by the Borrower. Each such telephonic and written
Competitive Bid Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the
requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term Interest
Period; and
(v) the location and number of the Borrowers account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
Promptly following receipt of a Competitive Bid
Request in accordance with this Section, the Paying Agent shall notify the
Lenders of the details thereof by telecopy, inviting the Lenders to submit
Competitive Bids.
(b) Each
Lender may (but shall not have any obligation to) make one or more irrevocable
Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be in a form approved by the Paying Agent
and must be received by the Paying Agent by telecopy, in the case of a
Eurodollar Competitive Borrowing, not later than 9:30 a.m., New York
City time, three Business Days before the proposed date of such Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such
Competitive Borrowing. Competitive Bids that do not conform substantially
to the form approved by the Paying Agent may be rejected by the Paying Agent,
and the Paying Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competitive Borrowing requested by the Borrower) of the Competitive Loan or
Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or
Rates at which the Lender is prepared to make such Loan or Loans (expressed as
a percentage rate per annum in the form of a decimal to no more than four
decimal places) and (iii) the Interest Period applicable to each such Loan
and the last day thereof.
(c) The
Paying Agent shall notify the Borrower by telecopy of the Competitive Bid Rate
and the principal amount specified in each Competitive Bid and the identity of
the Lender that shall have made such Competitive Bid, in the case of a
Eurodollar Competitive Borrowing, not later than 10:00 a.m., New York City
time, three Business Days before the proposed date of such Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 10:00
a.m., New York City time, on the proposed date of such Competitive Borrowing.
(d) Subject
only to the provisions of this paragraph, the Borrower may accept or reject any
Competitive Bid. The Borrower shall notify the Paying Agent by telephone,
confirmed by telecopy in a form approved by the Paying Agent, whether and to
what extent it has decided to accept or reject each Competitive Bid, in the
case of a Eurodollar Competitive Borrowing, not later than 1:00 p.m.,
New York City time, three Business Days before the date of the proposed
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later
than 10:30 a.m., New York City time, on the proposed date of the
Competitive Borrowing;
provided
that (i) the
failure of the Borrower to give such notice shall be deemed to be a rejection
of each Competitive Bid, (ii) the Borrower shall not accept a Competitive
Bid made at a particular Competitive Bid Rate if the Borrower rejects a
Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate
amount of the Competitive Bids accepted by the Borrower shall not exceed the
aggregate amount of the requested Competitive Borrowing specified in the
related Competitive Bid Request, (iv) to the extent necessary to comply
with clause (iii) above, the Borrower may accept Competitive Bids at the same
Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000;
provided further
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a
minimum of $1,000,000 or any integral multiple thereof, and in calculating the
pro rata allocation of acceptances of portions of multiple Competitive Bids at
a particular Competitive Bid Rate pursuant to clause (iv) the amounts
shall be rounded to integral multiples of $1,000,000 in a manner determined by
the Borrower. A notice given by the Borrower pursuant to this paragraph
shall be irrevocable.
(e) The
Paying Agent shall promptly notify each bidding Lender by telecopy whether or
not its Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will thereupon
become bound, subject to the terms and conditions hereof, to make the
Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the
Paying Agent shall elect to submit a Competitive Bid in its capacity as a
Lender, it shall submit such Competitive Bid directly to the Borrower at least
one quarter of an hour earlier than the time by which the other Lenders are
required to submit their Competitive Bids to the Paying Agent pursuant to
paragraph (b) of this Section.
SECTION
2.05.
Letters
of Credit.
(a)
General.
Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters
of Credit for its own account, in a form reasonably acceptable to the Paying
Agent and the applicable Issuing Bank, at any time and from time to time during
the Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower
to, or entered into by the Borrower with, any Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall
control. On the Effective Date, each Existing Letter of Credit shall be
deemed to be a Letter of Credit for all purposes hereof and shall be deemed to
have been issued hereunder on the Effective Date. All Letters of Credit
shall provide for drawings thereunder to be denominated in dollars except as
provided for Alternate Currency Letters of Credit pursuant to
Section 2.05(m). An Issuing Bank shall not be under any obligation
to issue any Letter of Credit if (i) any order,
judgment or decree of any Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain such Issuing Bank from issuing the Letter
of Credit, or any law applicable to such Issuing Bank or any request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such Issuing Bank shall prohibit, or request
that such Issuing Bank refrain from, the issuance of letters of credit generally
or the Letter of Credit in particular or shall impose upon such Issuing Bank
with respect to the Letter of Credit any restriction, reserve or capital
requirement (for which such Issuing Bank is not compensated hereunder) not in
effect on the Effective Date, or shall impose upon such Issuing Bank any
unreimbursed loss, cost or expense which was not applicable on the Effective
Date and which such Issuing Bank in good faith deems material to it or (ii) the
issuance of the Letter of Credit would violate one or more policies of such
Issuing Bank applicable to letters of credit generally.
(b)
Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the relevant Issuing Bank) to the relevant Issuing
Bank (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit, and such Issuing Bank shall promptly deliver a copy of such
notice by telecopy to the Paying Agent. If requested by the applicable
Issuing Bank, the Borrower also shall submit a letter of credit application on
such Issuing Banks standard form in connection with any request for a Letter
of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed $400,000,000, (ii)
the portion of the LC Exposure attributable to Letters of Credit issued by any
Issuing Bank shall not exceed the LC Commitment of such Issuing Bank; (iii) the
portion of the LC Exposure attributable to Alternate Currency Letters of Credit
shall not exceed $100,000,000 and (iv) the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive Loans
shall not exceed the Total Commitments.
(c)
Expiration
Date.
Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Maturity Date (the
Letter
of Credit Expiration Date
).
(d)
Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit
increasing the amount thereof) and without any further action on the part of
the applicable Issuing Bank or the Lenders, the Issuing Bank in respect of such
Letter of Credit hereby grants to each Lender, and each Lender hereby acquires
from such Issuing Bank, a participation in such Letter of Credit equal to such
Lenders Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Paying Agent, for the account of the applicable Issuing Bank, such Lenders
Applicable Percentage of each LC Disbursement made by such Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason (subject to Section 2.05(m), in the case of Alternate
Currency Letters of Credit). Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit, the occurrence and continuance of a Default, the
reduction or termination of the Commitments or any
force majeure
or
other event that under any rule of law or uniform practices to which any Letter
of Credit is subject (including Section 3.14 of ISP 98 or any successor
publication of the International Chamber of Commerce) permits a drawing to be
made under such Letter of Credit after the expiration thereof or of the
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. On the Effective Date and
without any further action by any party hereto, each Issuing Bank that has
issued an Existing Letter of Credit shall be deemed to have granted to each
Lender, and each Lender shall be deemed to have acquired from such Issuing
Bank, a participation in each such Existing Letter of Credit in accordance with
the foregoing provisions of this paragraph (d).
(e)
Reimbursement.
If an Issuing Bank shall make any LC Disbursement in respect of a Letter of
Credit, the Borrower shall reimburse such LC Disbursement by paying to the
Paying Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement
is made, if the Borrower shall have received notice of such LC Disbursement
prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date,
then not later than 12:00 noon, New York City time, on (i) the Business Day that the Borrower receives such
notice, if such notice is received prior to 10:00 a.m., New York City
time, on the day of receipt, or (ii) the Business Day immediately following
the day that the Borrower receives such notice, if such notice is not received
prior to such time on the day of receipt;
provided
that in the case of
an LC Disbursement in respect of an Alternate Currency Letter of Credit, the
times of day referred to above in this clause (e) shall be deemed to be the
local time at the place of payment;
provided
further
that, if
such LC Disbursement is denominated in dollars, the Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with
Section 2.03 that such payment be financed with an ABR Revolving Borrowing
in an equivalent amount and, to the extent so financed, the Borrowers
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing. If the Borrower fails to make such
payment when due, the Paying Agent shall notify each Lender of the applicable
LC Disbursement, the payment then due from the Borrower in respect thereof and
such Lenders Applicable Percentage thereof. Promptly following receipt
of such notice (but subject to Section 2.05(m), in the case of Alternate
Currency Letters of Credit), each Lender shall pay to the Paying Agent its
Applicable Percentage of the payment then due from the Borrower, in the same
manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply,
mutatis
mutandis
, to
the payment obligations of the Lenders), and the Paying Agent shall promptly
pay to the applicable Issuing Bank the amounts so received by it from the
Lenders. Promptly following receipt by the Paying Agent of any payment
from the Borrower pursuant to this paragraph, the Paying Agent shall distribute
such payment to the applicable Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse such Issuing Bank, then
to such Lenders and such Issuing Bank as their interests may appear. Any
payment made by a Lender pursuant to this paragraph to reimburse an Issuing
Bank for any LC Disbursement (other than the funding of ABR Revolving Loans as
contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f)
Obligations
Absolute.
The Borrowers obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms
of this Agreement under any and all circumstances whatsoever and irrespective
of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein,
(ii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect, (iii) payment by an Issuing
Bank under a Letter of Credit against presentation of a draft or other document
that does not comply with the terms of such Letter of Credit, (iv) any
force
majeure
or other event that under any rule of law or uniform practices to
which any Letter of Credit is subject (including Section 3.14 of ISP 98 or any
successor publication of the International Chamber of Commerce) permits a
drawing to be made under such Letter of Credit after the expiration thereof or
of the Commitments or (v) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrowers obligations hereunder.
None of the Paying Agent, the Lenders or any Issuing Bank, or any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of
any Issuing Bank;
provided
that the foregoing shall not be construed to
excuse an Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by such Issuing Banks failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. Unless otherwise
separately agreed in writing between the Borrower and the applicable Issuing
Bank, (A) the parties hereto expressly agree that, in the absence of gross
negligence or wilful misconduct on the part of such
Issuing Bank (as finally determined by a court of competent jurisdiction), such
Issuing Bank shall be deemed to have exercised care in each such determination,
and (B) in furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented which
appear on their face to be in substantial compliance with the terms of a Letter
of Credit, such Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g)
Disbursement
Procedures.
The applicable Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. Such Issuing Bank shall promptly notify
the Paying Agent and the Borrower by telephone (confirmed by telecopy) of such demand
for payment and whether such Issuing Bank has made an LC Disbursement
thereunder;
provided
that any failure to give or delay in giving such
notice shall not relieve the Borrower of its obligation to reimburse such
Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h)
Interim
Interest.
If an Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest,
for each day from and including the date such LC Disbursement is made to but
excluding the date that the Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to ABR Revolving Loans (or, in the case of an
Alternate Currency Letter of Credit, at (i) until the
Lenders shall have paid the amounts owed by them in respect of such LC
Disbursement as provided in paragraph (e) above and paragraph (m) below, a rate
of interest reasonably determined by the applicable Issuing Bank to be the cost
to such Issuing Bank of funding such LC Disbursement plus the Applicable Rate
applicable to Eurodollar Revolving Loans and (ii) thereafter, the rate of
interest applicable to ABR Loans at such time;
provided
that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.12(d) shall
apply. Interest accrued pursuant to this paragraph shall be for the
account of the applicable Issuing Bank, except that interest accrued on and
after the date of payment by any Lender pursuant to paragraph (e) of this
Section to reimburse the applicable Issuing Bank shall be for the account of
such Lender to the extent of such payment.
(i)
Replacement of an Issuing Bank.
An
Issuing Bank may be replaced at any time by written agreement among the
Borrower, the Paying Agent, the replaced Issuing Bank and the successor Issuing
Bank. An Issuing Banks obligations to issue additional Letters of Credit
hereunder may be terminated at any time by written agreement among the
Borrower, the Paying Agent and such Issuing Bank;
provided
that after
giving effect thereto there is at least one remaining Issuing Bank obligated to
issue Letters of Credit. The Paying Agent shall notify the Lenders of any
such replacement or termination of an Issuing Bank. At the time any such
replacement or termination shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced or
terminated Issuing Bank pursuant to Section 2.11(b). From and after
the effective date of any such replacement, the successor Issuing Bank shall
have all the rights and obligations of the replaced Issuing Bank under this
Agreement with respect to Letters of Credit to be issued thereafter.
After the replacement or termination of an Issuing Bank hereunder, the replaced
or terminated Issuing Bank shall remain a party hereto and shall continue to
have all the rights and obligations of an Issuing Bank under this Agreement
with respect to Letters of Credit issued by it prior to such replacement or
termination, but shall not be required to issue additional Letters of Credit.
(j)
Cash
Collateralization.
If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Paying Agent or the Required Lenders (or, if the maturity of the Loans has been
accelerated, Lenders with LC Exposure representing greater than 50% of the
total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Paying Agent, in
the name of the Paying Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon;
provided
that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to either Loan Party
described in clause (h) or (i) of
Article VII. The Borrower shall also deposit cash collateral in
accordance with this paragraph as and to the extent required by Section 2.10(b)
or Section 2.22. Each such deposit shall be held by the Paying Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Paying Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the Paying Agent
and at the Borrowers risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate
in such account. Moneys in such account shall be applied by the Paying
Agent to reimburse any Issuing Bank for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Lenders with LC Exposure representing greater
than 50% of the total LC Exposure), be applied to satisfy other obligations of
the Borrower under this Agreement. If the Borrower is required to provide
an amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all Events of Default
have been cured or waived. If the Borrower is required to provide an
amount of cash collateral hereunder pursuant to Section 2.10(b), such amount
(to the extent not applied as aforesaid) shall be returned to the Borrower as
and to the extent that, after giving effect to such return, the Borrower would
remain in compliance with Section 2.10(b) and no Default shall have occurred
and be continuing.
(k)
Additional
Issuing Banks.
Any Lender may at any time become an Issuing Bank
hereunder by written agreement between the Borrower and such Lender subject to
notice to the Paying Agent. From and after the effective date of any such
Lender becoming an Issuing Bank, such Lender shall have the rights and
obligations of an Issuing Bank under this Agreement. Any Lender that
becomes an Issuing Bank shall not cease to be an Issuing Bank hereunder if it
later ceases to be a Lender hereunder.
(l)
Certain
Notices by Issuing Banks.
Each Issuing Bank that is not the same
Person as the Person serving as the Paying Agent shall notify the Paying Agent
of (i) the currency, amount (including the
Dollar Amount in the case of Alternate Currency Letters of Credit) and
expiration date of each Letter of Credit issued by such Issuing Bank at or
prior to the time of issuance thereof (or in the case of an Existing Letter of
Credit, such notice shall be provided on the Effective Date), (ii) any
amendment or modification to, or LC Disbursement under, any such Letter of Credit
at or prior to the time of such amendment, modification or LC Disbursement and
(iii) any termination, surrender, cancellation or expiry of any such
Letter of Credit at or prior to the time of such termination, surrender,
cancellation or expiration.
(m)
Alternate
Currency Letters of Credit.
Subject to the terms and conditions set
forth herein, the other conditions applicable to the issuance of Letters of
Credit hereunder and the approval of the applicable Issuing Bank, the Borrower
may request the issuance of Alternate Currency Letters of Credit. Upon
the issuance of any Alternate Currency Letter of Credit, and so long as any
Alternate Currency Letter of Credit remains outstanding, the following
provisions shall apply:
(i) For purposes of determining the total LC Exposure at any
time and for purposes of calculating fees payable under Sections 2.11(b)
and (c), the amount of any Alternate Currency Letter of Credit and of any LC
Disbursements in respect thereof shall be deemed to be, as of any date of determination,
the Dollar Amount thereof at such date. The initial Dollar Amount of any
Alternate Currency Letter of Credit shall be determined by the applicable
Issuing Bank on the date of issuance thereof and adjusted from time to time
thereafter, in each case, as provided below. The Dollar Amount of each
Alternate Currency Letter of Credit outstanding shall be adjusted by the
applicable Issuing Bank on each Calculation Date as provided in
Section 2.20(a). If an LC Disbursement is made by the Issuing Bank
under any Alternate Currency Letter of Credit, the Dollar Amount of such LC
Disbursement shall be determined by such Issuing Bank on the date that such LC
Disbursement is made. The applicable Issuing Bank shall make each such
determination to be made by it by calculating the amount in dollars that would
be required in order for such Issuing Bank to purchase an amount of the
applicable Alternate Currency equal to the amount of the relevant Alternate
Currency Letter of Credit or unpaid LC Disbursement, as the case may be, on the
date of determination at the Spot Exchange Rate with respect to such Alternate
Currency on such date of determination. Each applicable Issuing Bank
shall notify the Paying Agent and the Borrower promptly of each such Dollar
Amount determined by it, on the date that such determination is required to be
made.
(ii) Subject to
paragraph (iv) below, the obligation of the Borrower to reimburse the
applicable Issuing Bank for any LC Disbursement under any Alternate Currency
Letter of Credit, and to pay interest thereon, shall be payable only in the
Alternate Currency in which such LC Disbursement is made, and shall not be
discharged by paying an amount in dollars or any other currency;
provided
that the applicable Issuing Bank may agree, in its sole discretion, to accept
reimbursement in another currency, but any such agreement shall not affect the
obligations of the Lenders or the Borrower under paragraphs (iii) and (iv)
below if such reimbursement is not actually made to the applicable Issuing Bank
when due.
(iii) The
obligation of each Lender under paragraphs (d) and (e) of this Section to pay
its Applicable Percentage of any unpaid LC Disbursement under any Alternate
Currency Letter of Credit shall be payable only in dollars and shall be in an
amount equal to such Applicable Percentage of the Dollar Amount of such unpaid
drawing determined as provided in paragraph (i)
above. Under no circumstances shall the provisions hereof permitting the
issuance of Letters of Credit in an Alternate Currency be construed, by
implication or otherwise, as imposing any obligation upon any Lender to make
any Loan or other payment under the Loan Documents, or to accept any payment
from the Borrower in respect of any unreimbursed LC Disbursement, in any currency
other than dollars, it being understood that the parties intend all payments of
Indebtedness created under the Loan Documents to be denominated and payable
only in dollars except as expressly provided in paragraph (ii) above and
in Section 2.17(a).
(iv) If and to the
extent that any Lender pays its Applicable Percentage of any unreimbursed LC
Disbursement under any Alternate Currency Letter of Credit, then,
notwithstanding clause (ii) above, the obligation of the Borrower to reimburse
the portion of such unreimbursed LC Disbursement funded by such Lender shall be
converted to, and shall be payable only in, dollars (in an amount equal to the
dollar amount funded by such Lender as provided above) and shall not be
discharged by paying an amount in any other currency. Interest accrued on
such unreimbursed LC Disbursement to and excluding the date of such payment by
such Lender shall be for the account of the applicable Issuing Bank and be
payable in the applicable Alternate Currency, but interest thereafter shall
accrue on the dollar amount owed to such Lender and shall be payable in
dollars.
(n)
Auto-Extension Letters of Credit.
If the Borrower so requests in relation to the
issuance of a Letter of Credit, the Issuing Bank may, in its sole discretion,
agree to issue a Letter of Credit that has automatic extension provisions
(each, an
Auto-Extension Letter of Credit
);
provided
that any
such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent
any such extension at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the
Non-Extension Notice Date
)
in each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the Issuing Bank, the
Borrower shall not be required to make a specific request to the Issuing Bank
for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Lenders shall be deemed to have authorized (but may not require)
the Issuing Bank to permit the extension of such Letter of Credit at any time
to an expiry date not later than the Letter of Credit Expiration Date;
provided
,
however
, that the Issuing Bank shall not permit any such extension if it
has received notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the Non-Extension Notice Date (i) from the Paying Agent that the Required Lenders have
elected not to permit such extension or (ii) from the Paying Agent, any Lender
or the Borrower that one or more of the applicable conditions specified in
Section
4.02
is not then satisfied, and in each such case directing the Issuing
Bank not to permit such extension.
(o)
Applicability
of ISP and UCP.
Unless otherwise expressly agreed by the Issuing Bank
and the Borrower when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), (i)
the rules of ISP98 shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.
SECTION 2.06.
Funding of Borrowings.
(a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 1:00 p.m., New York City
time, to the account of the Paying Agent most recently designated by it for
such purpose by notice to the Lenders. The Paying Agent will make such
Loans available to the Borrower by promptly crediting the amounts so received,
in like funds, to an account of the Borrower maintained with the Paying Agent
in New York City and designated by the Borrower in the applicable
Borrowing Request or Competitive Bid Request;
provided
that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e) shall be remitted by the Paying Agent to the
applicable Issuing Bank.
(b) Unless
the Paying Agent shall have received notice from a Lender prior to the proposed
date of any Borrowing that such Lender will not make available to the Paying
Agent such Lenders share of such Borrowing, the Paying Agent may assume that
such Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if
a Lender has not in fact made its share of the applicable Borrowing available
to the Paying Agent, then the applicable Lender and the Borrower severally
agree to pay to the Paying Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the
Paying Agent, at (i) in the case of such Lender,
the greater of the Federal Funds Effective Rate and a rate determined by the
Paying Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Paying
Agent, then such amount shall constitute such Lenders Loan included in such
Borrowing.
SECTION 2.07.
Interest Elections.
(a) Each Revolving
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Revolving Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different
Type or to continue such Borrowing and, in the case of a Eurodollar Revolving
Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Competitive
Borrowings, which may not be converted or continued.
(b) To make
an election pursuant to this Section, the Borrower shall notify the Paying
Agent of such election by telephone by the time that a Borrowing Request would
be required under Section 2.03 if the Borrower were requesting a Revolving
Borrowing of the Type resulting from such election to be made on the effective
date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Paying Agent of a written Interest Election Request in a form
approved by the Paying Agent and signed by the Borrower.
(c)
Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or
a Eurodollar Borrowing; and
(iv) if the resulting
Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term Interest Period.
If any such Interest Election Request requests a
Eurodollar Borrowing but does not specify an Interest Period, then the Borrower
shall be deemed to have selected an Interest Period of one months duration.
(d) Promptly
following receipt of an Interest Election Request, the Paying Agent shall advise
each Lender of the details thereof and of such Lenders portion of each
resulting Borrowing.
(e) If the
Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein,
at the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Paying Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION 2.08.
Termination and Reduction of Commitments.
(a)
Unless previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The
Borrower may at any time terminate, or from time to time reduce, the
Commitments;
provided
that (i) each
reduction of the Commitments shall be in an amount that is an integral multiple
of $10,000,000 and not less than $25,000,000 and (ii) the Borrower shall
not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.10, the
sum of the Revolving Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans would exceed the Total Commitments.
(c) The
Borrower shall notify the Paying Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Paying Agent shall advise the Lenders of
the contents thereof. Each notice delivered by the Borrower pursuant to
this Section shall be irrevocable;
provided
that a notice of termination
of the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Paying Agent on or
prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be
permanent. Each reduction of the Commitments shall be made ratably among
the Lenders in accordance with their respective Commitments.
SECTION 2.09.
Repayment of Loans; Evidence of Debt.
(a)
The Borrower hereby unconditionally promises to pay (i) to
the Paying Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan on the Maturity Date and (ii) to the Paying
Agent for the account of each Lender the then unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable to such
Loan.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(c) The
Paying Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class
and Type thereof and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the amount of
any sum received by the Paying Agent hereunder for the account of the Lenders
and each Lenders share thereof.
(d) The entries
made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be
prima
facie
evidence of the existence and
amounts of the obligations recorded therein;
provided
that the failure
of any Lender or the Paying Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any
Lender may request that Loans made by it be evidenced by a promissory
note. In such event, the Borrower shall prepare, execute and deliver to
such Lender a promissory note payable to such Lender and its registered assigns
and in a form approved by the Paying Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by
one or more promissory notes in such form payable to the payee named therein
and its registered assigns.
SECTION 2.10.
Prepayment of Loans.
(a) The Borrower shall
have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (c) of this Section;
provided
that the
Borrower shall not have the right to prepay any Competitive Loan without the
prior consent of the Lender thereof.
(b) In the
event that, on any Reset Date, the sum of the total Revolving Credit Exposures
and the aggregate principal amount of outstanding Competitive Loans exceeds
105% of the Total Commitments, then, within three Business Days after notice
thereof to the Borrower from the Paying Agent, the Borrower shall prepay
Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Paying Agent pursuant to Section 2.05(j))
such that, after giving effect thereto, the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive Loans
does not exceed the Total Commitments. Solely for purposes of determining
compliance with this paragraph, the total Revolving Credit Exposure shall be
deemed reduced by the amount of cash collateral deposited with and held by the
Paying Agent pursuant to Section 2.05(j).
(c) The
Borrower shall notify the Paying Agent by telephone (confirmed by telecopy) of
any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment or
(ii) in the case of prepayment of an ABR Revolving Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date
of prepayment. Each such notice shall be irrevocable and shall specify
the prepayment date and the principal amount of each Borrowing or portion thereof
to be prepaid;
provided
that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.08, then such notice of prepayment may be
revoked if such notice of termination is revoked in accordance with
Section 2.08. Promptly following receipt of any such notice relating
to a Revolving Borrowing, the Paying Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing
shall be in an amount that would be permitted in the case of an advance of a
Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.12.
SECTION 2.11.
Fees.
(a) The Borrower agrees
to pay to the Paying Agent for the account of each Lender a facility fee, which
shall accrue at the Applicable Rate on the greater of (i) the
amount of the Commitment (used or unused) of such Lender during the period from
and including the Effective Date to but excluding the date on which such
Commitment terminates and (ii) the amount of such Lenders Revolving
Credit Exposure. Accrued facility fees shall be payable in arrears on the
last day of March, June, September and December of each year and on the date on
which the Commitments terminate, commencing on the first such date to occur
after the date hereof. All facility fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) The
Borrower agrees to pay (i) to the Paying Agent
for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans (or in the case of a Trade Letter of Credit, 50% of such Applicable Rate)
on the average daily amount of such Lenders LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date on
which such Lenders Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting
fee separately agreed upon between the Borrower and such Issuing Bank.
Participation fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the fifth Business Day
following such last day, commencing on the first such date to occur after the
Effective Date;
provided
that all such fees shall be payable on the date
on which the Commitments terminate and any such fees accruing after the date on
which the Commitments terminate shall be payable on demand. Any other
fees payable to an Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees shall be
computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(c) The
Borrower agrees to pay to the Paying Agent, for its own account or for the
account of the Lenders, as applicable, fees payable in the amounts and at the
times separately agreed upon between the Borrower and the Paying Agent.
(d) All fees
payable hereunder shall be paid on the dates due, in immediately available
funds, to the Paying Agent (or to the applicable Issuing Bank, in the case of
fees payable to it) for distribution, in the case of facility fees,
participation fees and other fees separately agreed upon to be payable to the
Lenders, to the Lenders. Fees paid shall not be refundable under any
circumstances, except to the extent that the Borrower demonstrates that any
amounts paid represent overpayments.
SECTION 2.12.
Interest.
(a) The Loans
comprising each ABR Borrowing shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans
comprising each Eurodollar Borrowing shall bear interest (i) in
the case of a Eurodollar Revolving Loan, at the Adjusted LIBO Rate for the
Interest Period in effect for such Borrowing plus the Applicable Rate, or
(ii) in the case of a Eurodollar Competitive Loan, at the LIBO Rate for
the Interest Period in effect for such Borrowing plus (or minus, as applicable)
the Margin applicable to such Loan.
(c) Each
Fixed Rate Loan shall bear interest at the Fixed Rate applicable to such Loan.
(d)
Notwithstanding the foregoing, if any principal of or interest on any Loan or
any fee or other amount payable by the Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum
equal to (i) in the case of overdue principal of
any Loan, 2.0% per annum plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case
of any other amount, 2.0% per annum plus the rate applicable to ABR Loans as
provided in paragraph (a) of this Section.
(e) Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the
Commitments;
provided
that (i) interest
accrued pursuant to paragraph (d) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the end of the
Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurodollar Revolving Loan
prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.
(f) All
interest hereunder shall be computed on the basis of a year of 360 days,
except that interest computed by reference to the Alternate Base Rate at times
when the Alternate Base Rate is based on the Prime Rate shall be computed on
the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base
Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Paying Agent,
and such determination shall be conclusive absent manifest error.
SECTION
2.13.
Alternate
Rate of Interest.
If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:
(a) the
Paying Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period; or
(b) the
Paying Agent is advised by the Required Lenders (or, in the case of a
Eurodollar Competitive Loan, the Lender that is required to make such Loan)
that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Paying Agent shall give notice thereof to
the Borrower and the Lenders by telephone or telecopy as promptly as
practicable thereafter and, until the Paying Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice no longer exist,
(i) any Interest Election Request that requests
the conversion of any Revolving Borrowing to, or continuation of any Revolving
Borrowing as, a Eurodollar Borrowing shall be ineffective, (ii) if any
Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing
shall be made as an ABR Borrowing and (iii) any request by the Borrower
for a Eurodollar Competitive Borrowing shall be ineffective;
provided
that (A) if the circumstances giving rise to such notice do not affect all
the Lenders, then requests by the Borrower for Eurodollar Competitive
Borrowings may be made to Lenders that are not affected thereby and (B) if
the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION
2.14.
Increased
Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank;
(ii) impose on any
Lender or Issuing Bank or the London interbank market any other condition
affecting this Agreement or Eurodollar Loans or Fixed Rate Loans made by such
Lender or any Letter of Credit or participation therein; or
(iii) subject any
Recipient to any Taxes on its loans, loan principal, letters of credit,
commitments, or other obligations, or its deposits, reserves, other liabilities
or capital attributable thereto (other than (A) Indemnified Taxes, (B) Excluded
Taxes (other than Other Connection Taxes) and (C) Other Connection Taxes
imposed on or measured by net income (however denominated));
and the result of any of the foregoing shall be to
increase the cost to such Lender or such other Recipient of making or
maintaining any Loan (or of maintaining its obligation to make any such Loan)
or to increase the cost to such Lender, such Issuing Bank or such other Recipient
of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit)
or to reduce the amount of any sum received or receivable by such Lender,
Issuing Bank or such other Recipient hereunder (whether of principal, interest
or otherwise), then, from time to time upon request of such Lender, Issuing
Bank or other Recipient, the Borrower will pay to such Lender, Issuing Bank or
such other Recipient, as the case may be, such additional amount or amounts as
will compensate such Lender, Issuing Bank or such other Recipient, as the case
may be, for such additional costs incurred or reduction suffered.
(b) If any
Lender or Issuing Bank determines that any Change in Law regarding capital or
liquidity requirements has had or would have the effect of reducing the rate of
return on such Lenders or Issuing Banks capital or on the capital of such
Lenders or Issuing Banks holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by such Issuing Bank, to a level
below that which such Lender or Issuing Bank or such Lenders or Issuing Banks
holding company could have achieved but for such Change in Law (taking into
consideration such Lenders or Issuing Banks policies and the policies of such
Lenders or Issuing Banks holding company with respect to capital adequacy or
liquidity), then from time to time the Borrower will pay to such Lender or
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or Issuing Bank or such Lenders or Issuing Banks
holding company for any such reduction suffered.
(c) A
certificate of a Lender or an Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or Issuing Bank or its holding company, as
the case may be, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender or Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure
or delay on the part of any Lender or Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lenders or
Issuing Banks right to demand such compensation;
provided
that the
Borrower shall not be required to compensate a Lender or an Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 270 days prior to the date that such Lender or Issuing Bank, as the
case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lenders or Issuing Banks intention
to claim compensation therefor;
provided
further
that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 270‑day period referred to above shall be extended to include
the period of retroactive effect thereof.
(e)
Notwithstanding the foregoing provisions of this Section, a Lender shall not be
entitled to compensation pursuant to this Section in respect of any Competitive
Loan if the Change in Law that would otherwise entitle it to such compensation
shall have been publicly announced prior to submission of the Competitive Bid
pursuant to which such Loan was made.
SECTION 2.15.
Break Funding Payments.
In the event of
(a) the payment of any principal of any Eurodollar Loan or Fixed Rate Loan
other than on the last day of an Interest Period applicable thereto (including
as a result of an Event of Default), (b) the conversion of any Eurodollar
Loan other than on the last day of the Interest Period applicable thereto,
(c) the failure to borrow, convert, continue or prepay any Eurodollar Loan
or Fixed Rate Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice may be revoked under
Section 2.10(b) and is revoked in accordance therewith), (d) the failure
to borrow any Competitive Loan after accepting the Competitive Bid to make such
Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan
other than on the last day of the Interest Period applicable thereto as a
result of a request by the Borrower pursuant to Section 2.18, then, in any
such event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan,
such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such
Loan had such event not occurred, at the Adjusted LIBO Rate that would have
been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period,
for dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the
amount shown as due on any such certificate within 30 days after receipt
thereof.
SECTION 2.16.
Withholding of Taxes; Gross-Up.
(a) Each payment by or
on account of any obligation of the Borrower under any Loan Document shall be
made without withholding for any Taxes, unless such withholding is required by
any law. If any withholding agent determines, in its sole discretion
exercised in good faith, that it is so required to withhold Taxes, then such
withholding agent may so withhold and shall timely pay the full amount of
withheld Taxes to the relevant Governmental Authority in accordance with
applicable law. If such Taxes are Indemnified Taxes, then the amount
payable by the Borrower shall be increased as necessary so that, net of such
withholding (including such withholding applicable to additional amounts
payable under this Section), the applicable Recipient receives the amount it
would have received had no such withholding been made.
(b)
Payment
of Other Taxes by the Borrower.
The Borrower shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with
applicable law or at the option of the Paying Agent timely reimburse it for the
payment of any Other Taxes.
(c)
Evidence
of Payments.
As soon as practicable after any payment of Taxes by any
Loan Party to a Governmental Authority pursuant to this Section 2.16, such Loan
Party shall deliver to the Paying Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Paying Agent.
(d)
Indemnification
by the Borrower.
The Borrower shall indemnify each Recipient for any
Indemnified Taxes that are paid or payable by or required to be withheld or
deducted from a payment to such Recipient in connection with any Loan Document
(including amounts paid or payable under this Section 2.16(d)) and any
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. The indemnity under this
Section 2.16(d) shall be paid within 10 days after the Recipient delivers
to the Borrower a certificate stating the amount of any Indemnified Taxes so
paid or payable by such Recipient and describing the basis for the
indemnification claim. Such certificate shall be conclusive of the amount
so paid or payable absent manifest error. Such Recipient shall deliver a
copy of such certificate to the Paying Agent.
(e)
Indemnification
by the Lenders.
Each Lender shall severally indemnify the Paying
Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the
extent that the Borrower has not already indemnified such Agent for such
Indemnified Taxes and without limiting the obligation of the Borrower to do so)
attributable to such Lender (including Excluded Taxes and any taxes
attributable to such Lenders failure to comply with the provisions of Section
9.04(c) relating to the maintenance of a Participant Register) that are paid or
payable by such Agent in connection with any Loan Document and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. The indemnity under this Section 2.16(e) shall be paid
within 10 days after the applicable Agent delivers to the applicable Lender a
certificate stating the amount of Taxes so paid or payable by such Agent.
Such certificate shall be conclusive of the amount so paid or payable absent
manifest error.
(f)
Status
of Lenders.
(i) Any Lender that is entitled
to an exemption from, or reduction of, any applicable withholding Tax with
respect to any payments under this Agreement shall deliver to the Borrower and
the Paying Agent, at the time or times reasonably requested by the Borrower or
the Paying Agent and at the time or times prescribed by applicable law, such
properly completed and executed documentation reasonably requested by the
Borrower or the Paying Agent as will permit such payments to be made without,
or at a reduced rate of, withholding. In addition, any Lender, if
requested by the Borrower or the Paying Agent, shall deliver such other
documentation prescribed by law or reasonably requested by the Borrower or the
Paying Agent as will enable the Borrower or the Paying Agent to determine
whether or not such Lender is subject to any withholding (including backup
withholding) or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion,
execution and submission of such documentation (other than such documentation
set forth in Sections 2.16(f)(ii)(A) through (E)
and 2.16(f)(iii) below) shall not be required if in the Lenders reasonable
judgment such completion, execution or submission would subject such Lender to
any material unreimbursed cost or expense or would materially prejudice the
legal or commercial position of such Lender. Upon the reasonable request
of such Borrower or the Paying Agent, any Lender shall update any form or
certification previously delivered pursuant to this Section 2.16(f).
If any form or certification previously delivered pursuant to this Section expires
or becomes obsolete or inaccurate in any respect with respect to a Lender, such
Lender shall promptly (and in any event within 10 days after such expiration,
obsolescence or inaccuracy) notify such Borrower and the Paying Agent in writing
of such expiration, obsolescence or inaccuracy and shall update the form or
certification if it is legally eligible to do so or, if not legally eligible to
do so, shall notify the Borrower and the Paying Agent of such legal inability.
(ii) Without
limiting the generality of the foregoing, if the Borrower is a
U.S. Person, any Lender with respect to such Borrower shall, if it is
legally eligible to do so, deliver to such Borrower and the Paying Agent (in
such number of copies reasonably requested by such Borrower and the Paying
Agent) on or prior to the date on which such Lender becomes a party hereto,
duly completed and executed originals of whichever of the following is
applicable:
(A) in
the case of a Lender that is a U.S. Person, an executed original of
IRS Form W-9 certifying that such Lender is exempt from U.S. Federal
backup withholding tax;
(B) in the case of a
Non-U.S. Lender claiming the benefits of an income tax treaty to which the
United States is a party (1) with respect to payments of interest
under this Agreement, executed originals of IRS Form W-8BEN or IRS Form
W-8BEN-E, as applicable, establishing an exemption from, or reduction of,
U.S. Federal withholding Tax pursuant to the interest article of such
tax treaty and (2) with respect to any other applicable payments under
this Agreement, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable,
establishing an exemption from, or reduction of, U.S. Federal withholding
Tax pursuant to the business profits or other income article of such tax
treaty;
(C) in
the case of a Non-U.S. Lender for whom payments under this Agreement
constitute income that is effectively connected with such Lenders conduct of a
trade or business in the United States, an executed original of
IRS Form W-8ECI;
(D) in the case of a Non-U.S. Lender
claiming the benefits of the exemption for portfolio interest under
Section 881(c) of the Code both (1) executed originals of
IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, and (2) a
certificate substantially in the form of Exhibit C (a
U.S. Tax
Certificate
) to the effect that such Lender is not (a) a bank
within the meaning of Section 881(c)(3)(A) of the Code, (b) a 10
percent shareholder of the Borrower within the meaning of
Section 881(c)(3)(B) of the Code, (c) a controlled foreign
corporation described in Section 881(c)(3)(C) of the Code and
(d) conducting a trade or business in the United States with which
the relevant interest payments are effectively connected;
(E) in the case of a
Non-U.S. Lender that is not the beneficial owner of payments made under
this Agreement (including a partnership or a participating Lender) (1) an
executed original of IRS Form W-8IMY on behalf of itself and (2) the
relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this
paragraph (f)(ii) that would be required of each such beneficial
owner or partner of such partnership if such beneficial owner or partner were a
Lender;
provided
,
however
, that (x) if the Lender is a
partnership and one or more of its partners are claiming the exemption for
portfolio interest under Section 881(c) of the Code, such Lender may
provide a U.S. Tax Certificate on behalf of such partners substantially in
the form of Exhibit C-2 and (y) a Participant may provide a U.S. Tax
Certificate substantially in the form of Exhibit C-3 or C-4; or
(F) any other form prescribed by
law as a basis for claiming exemption from, or a reduction of,
U.S. Federal withholding Tax together with such supplementary
documentation necessary to enable the Borrower or the Paying Agent to determine
the amount of Tax (if any) required by law to be withheld.
(iii) If a payment
made to a Lender under any Loan Document would be subject to withholding Tax
imposed by FATCA if such Lender were to fail to comply with the applicable
reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall
deliver to the Borrower and the Paying Agent, at the time or times prescribed
by law and at such time or times reasonably requested by the Borrower or the
Paying Agent, such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the
Code) and such additional documentation reasonably requested by the Borrower or
the Paying Agent as may be necessary for the Borrower and the Paying Agent to
comply with their obligations under FATCA, to determine that such Lender has or
has not complied with such Lenders obligations under FATCA and, as necessary,
to determine the amount to deduct and withhold from such payment. Solely
for purposes of this Section 2.16(f)(iii),
FATCA shall include any amendments made to FATCA after the date of this
Agreement.
(g)
Treatment
of Certain Refunds.
If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which
it has been indemnified pursuant to this Section 2.16 (including
additional amounts paid pursuant to this Section 2.16), it shall pay to
the indemnifying party an amount equal to such refund (but only to the extent
of indemnity payments made under this Section with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses (including any
Taxes) of such indemnified party and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund).
Such indemnifying party, upon the request of such indemnified party, shall
repay to such indemnified party the amount paid to such indemnifying party pursuant
to the previous sentence (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) in the event such indemnified party is
required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this Section 2.16(g), in no
event will any indemnified party be required to pay any amount to any
indemnifying party pursuant to this Section 2.16(g) if such payment would
place such indemnified party in a less favorable position (on a net after-Tax
basis) than such indemnified party would have been in if the indemnification
payments or additional amounts giving rise to such refund had never been
paid. This Section 2.16(g) shall not be construed to require any
indemnified party to make available its Tax returns (or any other information
relating to its Taxes that it deems confidential) to the indemnifying party or
any other Person.
(h)
Survival.
Each partys obligations under this Section shall survive the resignation or
replacement of any Agent or any assignment of rights by, or the replacement of,
a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under this Agreement.
(i)
Defined Terms.
For purposes of this
Section, the term Lender includes any Issuing Bank and the term applicable
law includes FATCA.
(j)
FATCA.
For purposes of determining withholding Taxes imposed under FATCA, from and
after the Effective Date of this Agreement, the Loan Parties and the Agents
shall treat (and the Lenders hereby authorize the Agents to treat) the Loans as
not qualifying as grandfathered obligations within the meaning of Treasury
Regulation Section 1.1471-2(b)(2)(i).
SECTION 2.17.
Payments Generally; Pro Rata Treatment; Sharing of Set‑offs.
(a)
The Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.14, 2.15 or 2.16, or otherwise) prior
to 1:00 p.m., New York City time (or, in the case of an amount
payable in an Alternate Currency, 1:00 p.m. local time at the place of
payment), on the date when due, in immediately available funds, without set‑off
or counterclaim. Any amounts received after such time on any date may, in
the discretion of the Paying Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Paying Agent at its offices at 270 Park
Avenue, New York, New York (or, in the case of payments in an
Alternate Currency, such other location as provided below), except payments to
be made directly to an Issuing Bank as expressly provided herein and except
that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made
directly to the Persons entitled thereto. The Paying Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All payments hereunder shall be made in
dollars, except as expressly provided herein with respect to Alternate Currency
Letters of Credit. All payments to be made by the Borrower in an
Alternate Currency pursuant to Section 2.05(m) shall be made in such Alternate
Currency in such funds as may then be customary for the settlement of
international transactions in such Alternate Currency for the account of the
applicable Issuing Bank at such time and at such place as shall have been
notified by such Issuing Bank to the Borrower by not less than four Business
Days notice.
(b) If at any
time insufficient funds are received by and available to the Paying Agent to
pay fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed
LC Disbursements then due to such parties.
(c) If any
Lender shall, by exercising any right of set‑off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Revolving Loans or participations in LC Disbursements resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans and participations in LC Disbursements and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans and participations in LC Disbursements of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements;
provided
that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set‑off
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower in the amount of such participation.
(d) Unless
the Paying Agent shall have received notice from the Borrower prior to the date
on which any payment is due to the Paying Agent for the account of the Lenders
or any Issuing Bank hereunder that the Borrower will not make such payment, the
Paying Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or such Issuing Bank, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the
Lenders or the applicable Issuing Bank, as the case may be, severally agrees to
repay to the Paying Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Paying Agent, at the greater of the Federal Funds Effective Rate and a
rate determined by the Paying Agent in accordance with banking industry rules
on interbank compensation.
(e) If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.05(d) or (e), 2.06(b), 2.16(e) or 2.17(d), then the Paying Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Paying Agent for the account of such
Lender to satisfy such Lenders obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.18.
Mitigation Obligations; Replacement of Lenders.
(a)
If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 2.16, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable
pursuant to Section 2.14 or 2.16, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under
Section 2.14, (ii) the Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, (iii) any Lender is a Declining Lender or a
Defaulting Lender or (iv) any Lender has failed to consent to a proposed
amendment, waiver or modification that under Section 9.02 requires the consent
of all the Lenders (or each affected Lender) and with respect to which the
Required Lenders shall have granted their consent, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Paying Agent,
require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 9.04), all its
interests, rights and obligations under this Agreement (other than its existing
rights to payments pursuant to Section 2.14 or 2.16 and any outstanding
Competitive Loans held by it) to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment);
provided
that (A) the Borrower shall have received the prior written consent of the
Paying Agent, which consent shall not unreasonably be withheld, (B) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans (other than Competitive Loans) and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts), (C) in the case of any such assignment resulting from a
claim for compensation under Section 2.14 or payments required to be made
pursuant to Section 2.16, such assignment will result in a reduction in
such compensation or payments, (D) in the case of any assignment resulting from
a Lender being a Declining Lender, the assignee shall have agreed to the
applicable Maturity Date Extension Request and (E) in the case of any such
assignment resulting from the failure to provide a consent, the assignee shall
have given such consent. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply. Each party hereto agrees that
an assignment and delegation required pursuant to this paragraph may be
effected pursuant to an Assignment and Assumption executed by the Borrower, the
Paying Agent and the assignee and that the Lender required to make such
assignment and delegation need not be a party thereto.
SECTION 2.19.
Increase in Commitments.
(a) At any time after the Effective Date
and no more than two times during any calendar year, the Borrower may, by
written notice to the Paying Agent, request at any time or from time to time
that the Total Commitments be increased;
provided
that the aggregate
amount of each such increase pursuant to this Section 2.19 shall not be less
than $20,000,000 and the aggregate amount of all such increases pursuant to
this Section 2.19 shall not cause the aggregate amount of Total Commitments to
exceed $1,750,000,000. Any such notice shall set forth the amount of the
requested increase in the Total Commitments and the date on which such increase
is requested to become effective. The Borrower may arrange for one or
more banks or other financial institutions (any such bank or other financial
institution being called an
Augmenting Lender
), which may include any
Lenders, to extend Commitments or increase their existing Commitments in an
aggregate amount equal to the requested amount of the increase in the Total
Commitments;
provided
that each Augmenting Lender, if not already a
Lender hereunder, shall be subject to the approval of the Paying Agent (not to
be unreasonably withheld). Increases of Commitments and new Commitments
created pursuant to this paragraph (a) shall become effective upon the
execution and delivery by Parent, the Borrower, the Paying Agent and any
Lenders (including any Augmenting Lenders) agreeing to increase their existing
Commitments or extend new Commitments, as the case may be, of an agreement
providing for such increased or additional Commitments, subject to the
satisfaction of any conditions set forth in such agreement.
Notwithstanding the foregoing, no increase in the Total Commitments (or in the
Commitment of any Lender) shall become effective under this paragraph (a)
unless, on the date of such increase, (i) the
conditions set forth in paragraphs (a) and (b) of Sections 4.02 shall be
satisfied (as though a Borrowing were being made on such date);
provided
that for purposes of this Section, the representations and warranties contained
in Section 3.04(a) shall be deemed to refer to the most recent audited
financial statements available on the date of such increase and (ii)
the Paying Agent shall have received a certificate to that effect dated
such date and executed by a Responsible Officer or a Financial Officer of
Parent and the Borrower. The Borrower is not required to offer any Lender
an opportunity to participate in any increase pursuant to this Section 2.19
and, if offered an opportunity to participate, a Lender shall not have any
obligation to participate.
(b) At the
time that any increase in the Total Commitments pursuant to paragraph (a) of
this Section 2.19 (a
Commitment Increase
) becomes effective, if any
Revolving Loans are outstanding, the Borrower shall prepay the aggregate
principal amount outstanding in respect of such Revolving Loans in accordance
with Section 2.10 (the
Initial Loans
);
provided
that (i) nothing in this Section 2.19 shall prevent the Borrower
from funding the prepayment of Initial Loans with concurrent Revolving Loans
hereunder in accordance with the provisions of this Agreement, giving effect to
the Commitment Increase, and (ii) no such prepayment shall be required if,
after giving effect to the Commitment Increase, each Lender has the same
Applicable Percentage as immediately prior to such Commitment Increase.
SECTION 2.20.
Currency Fluctuations.
(a) Not later than 1:00
p.m., New York City time, on each Calculation Date, if there are any Alternate
Currency Letters of Credit outstanding, (i) each
Issuing Bank that has outstanding any Alternate Currency Letter of Credit or LC
Disbursement thereunder shall determine the Dollar Amount as of such
Calculation Date of each outstanding Alternate Currency Letter of Credit issued
by it or LC Disbursement thereunder, and such Issuing Bank shall notify the
Paying Agent and the Borrower of each Dollar Amount so determined and the
relevant Spot Exchange Rate used by it to make such determination and (ii) the
Paying Agent shall give notice to the Lenders and the Borrower of the Spot
Exchange Rates so determined. The Spot Exchange Rates so determined shall
become effective on the first Business Day immediately following the relevant
Calculation Date (a
Reset Date
) and (subject to Section 2.05(m))
shall remain effective until the next succeeding Reset Date.
(b) Not later
than 5:00 p.m., New York City time, on each Reset Date and the date of each
Borrowing or issuance of a Letter of Credit, if there are any Alternate
Currency Letters of Credit then outstanding, the Paying Agent shall (i) determine the Dollar Equivalent of the Alternate
Currency Letters of Credit then outstanding (after giving effect to any Loans
to be made or repaid on such date) and (ii) notify the Lenders and the Borrower
of the results of such determination and of the resulting total Revolving
Credit Exposures.
SECTION 2.21.
Extension of Maturity Date.
(a) The Borrower may,
by delivery of a written request (a
Maturity Date Extension Request
)
to the Paying Agent (which shall promptly deliver a copy to each of the
Lenders) not less than 30 days and not more than 90 days prior to any
anniversary of the Effective Date, request that the Lenders extend the Maturity
Date for an additional period of one year; provided that there shall be no more
than two extensions of the Maturity Date pursuant to this Section.
(b) Each
Lender shall, by notice to the Borrower and the Paying Agent given not later
than the 20th day after the date of the Paying Agents receipt of the
Borrowers Maturity Date Extension Request (or such other date as the Borrower
and the Paying Agent may agree; such date, the
Extension Date
), advise
the Borrower whether or not it agrees to the requested extension (each Lender
agreeing to a requested extension being called a
Consenting Lender
,
and each Lender declining to agree to a requested extension being called a
Declining
Lender
). Any Lender that has not so advised the Borrower and the
Paying Agent by such Extension Date shall be deemed to have declined to agree
to such extension and shall be a Declining Lender.
(c) If
Lenders constituting the Required Lenders shall have agreed to a Maturity Date
Extension Request by the Extension Date, then the Maturity Date shall, as to
the Consenting Lenders, be extended to the first anniversary of the Maturity
Date theretofore in effect. The decision to agree or withhold agreement
to any Maturity Date Extension Request shall be at the sole discretion of each
Lender. The Commitment of any Declining Lender shall terminate on the
Maturity Date in effect prior to giving effect to any such extension (such
Maturity Date being called the
Existing Maturity Date
). The
principal amount of any outstanding Loans made by Declining Lenders, together
with any accrued interest thereon and any accrued fees and other amounts
payable to or for the account of such Declining Lenders hereunder, shall be due
and payable on the Existing Maturity Date, and on the Existing Maturity Date
the Borrower shall also make such other prepayments of Loans pursuant to
Section 2.10 as shall be required in order that, after giving effect to
the termination of the Commitments of, and all payments to, Declining Lenders
pursuant to this sentence, the sum of the total Revolving Credit Exposures plus
the aggregate principal amount of outstanding Competitive Loans would not
exceed the Total Commitments.
(d) Notwithstanding
the foregoing provisions of this Section 2.21, the Borrower shall have the
right, pursuant to Section 2.18(b), at any time prior to the Existing
Maturity Date, to replace a Declining Lender with a Lender or other financial
institution that will agree to the applicable Maturity Date Extension Request,
and any such replacement Lender shall for all purposes constitute a Consenting
Lender.
(e)
Notwithstanding the foregoing provisions of this Section 2.21, no
extension of the Maturity Date pursuant to this Section 2.21 shall become
effective unless, on or promptly following the Extension Date, (i) the conditions set forth in Section 4.02 shall be
satisfied (with all references in such Section to a Borrowing being deemed to
be references to such extension and without giving effect to the parenthetical
in Section 4.02(a));
provided
that for purposes of this Section,
the representations and warranties contained in Section 3.04(a) shall be deemed
to refer to the most recent audited financial statements available on the
Extension Date and (ii) the Paying Agent shall have received a certificate to
that effect dated the Extension Date and executed by a Responsible Officer or a
Financial Officer of each of Parent and the Borrower.
SECTION 2.22.
Defaulting Lenders.
Notwithstanding any
provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is
a Defaulting Lender:
(a) facility fees shall cease to accrue on the unused amount of
the Commitment of such Defaulting Lender pursuant to Section 2.11(a);
(b) the
Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be
included in determining whether the Required Lenders or any other requisite
Lenders have taken or may take any action hereunder or under any other Loan
Document (including any consent to any amendment, waiver or other modification
pursuant to Section 9.02);
provided
that any amendment, waiver or other
modification requiring the consent of all Lenders or all Lenders affected
thereby shall, except as otherwise provided in Section 9.02, require the
consent of such Defaulting Lender in accordance with the terms hereof;
(c) if any LC Exposure exists at the time such Lender becomes a
Defaulting Lender then:
(i) so long as no Default or Event of Default has occurred
and is continuing, the LC Exposure of such Defaulting Lender shall be
reallocated among the Non-Defaulting Lenders in accordance with their
respective Applicable Percentages but only to the extent that the sum of all
Non-Defaulting Lenders Revolving Exposures plus such Defaulting Lenders LC
Exposure does not exceed the sum of all Non-Defaulting Lenders Commitments;
(ii)
if the reallocation described in clause (i) above
cannot, or can only partially, be effected, the Borrower shall within one
Business Day following notice by the Paying Agent, cash collateralize for the
benefit of the Issuing Banks the portion of such Defaulting Lenders LC
Exposure that has not been reallocated in accordance with the procedures set
forth in Section 2.05(j) for so long as such LC Exposure is outstanding;
(iii)
if the Borrower cash collateralizes any portion of such Defaulting Lenders LC
Exposure pursuant to clause (ii) above, the Borrower shall not be required to
pay participation fees to such Defaulting Lender pursuant to Section 2.11(b)
with respect to such portion of such Defaulting Lenders LC Exposure for so
long as such Defaulting Lenders LC Exposure is cash collateralized;
(iv)
if any portion of the LC Exposure of such Defaulting Lender is reallocated
pursuant to clause (i) above, then the fees payable
to the Lenders pursuant to Sections 2.11(a) and 2.11(b) shall be adjusted to
give effect to such reallocation; and
(v)
if all or any portion of such Defaulting Lenders LC Exposure is neither
reallocated nor cash collateralized pursuant to clause (i)
or (ii) above, then, without prejudice to any rights or remedies of any Issuing
Bank or any other Lender hereunder, all facility fees that otherwise would have
been payable to such Defaulting Lender (solely with respect to the portion of
such Defaulting Lenders Commitment utilized by such LC Exposure) and
participation fees payable under Section 2.10(b) with respect to such Defaulting
Lenders LC Exposure shall be payable to the Issuing Banks (and allocated among
them ratably based on the amount of such Defaulting Lenders LC Exposure
attributable to Letters of Credit issued by each Issuing Bank) until and to the
extent that such LC Exposure is reallocated and/or cash collateralized; and
(d) so long
as such Lender is a Defaulting Lender, no Issuing Bank shall be required to
issue, amend, renew or extend any Letter of Credit, unless in each case it is
satisfied that the related exposure and the Defaulting Lenders then
outstanding LC Exposure will be fully covered by the Commitments of the
Non-Defaulting Lenders and/or cash collateral provided by the Borrower in
accordance with Section 2.22(c), and participating interests in any such
issued, amended, reviewed or extended Letter of Credit will be allocated among
the Non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate
therein).
In the event that (x) a Bankruptcy Event with
respect to a Lender Parent shall have occurred following the date hereof and
for so long as such Bankruptcy Event shall continue or (y) any Issuing Bank has
a good faith belief that any Lender has defaulted in fulfilling its obligations
under one or more other agreements in which such Lender commits to extend
credit, no Issuing Bank shall be required to issue, amend, renew or extend any
Letter of Credit, unless such Issuing Bank shall have entered into arrangements
with the Borrower or such Lender satisfactory to such Issuing Bank to defease any risk to it in respect of such Lender hereunder.
In the event that the Paying Agent, the
Borrower and each Issuing Bank each agree (provided that the Borrowers
agreement shall not be required if an Event of Default has occurred and is
continuing) that a Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the LC Exposure of the
Lenders shall be readjusted to reflect the inclusion of such Lenders Commitment
and on such date such Lender shall purchase at par such of the Loans of the
other Lenders as the Paying Agent shall determine may be necessary in order for
such Lender to hold such Loans in accordance with its Applicable Percentage.
ARTICLE III
Representations and Warranties
Each of Parent and the Borrower represents and
warrants to the Lenders that:
SECTION 3.01.
Organization.
Each of Parent and the
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation.
SECTION 3.02.
Powers; Authorization; No Conflicts; Enforceability.
The Transactions are within each Loan Partys corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (a) any
Loan Partys charter or by‑laws or (b) law or any contractual
restriction binding on or affecting any Loan Party. This Agreement has
been, and each of the other Loan Documents to which any Loan Party is to be a
party when delivered hereunder will have been, duly executed and delivered by
each Loan Party that is a party hereto or thereto, as applicable. This
Agreement is, and each of the other Loan Documents to which any Loan Party is
to be a party when delivered will be, the legal, valid and binding obligation
of each Loan Party that is a party hereto or thereto, as applicable,
enforceable against each such Loan Party in accordance with its terms.
SECTION 3.03.
Approvals.
No authorization or approval
or other action by, and no notice to or filing with, any Governmental Authority
or any other third party is required for the due execution, delivery and
performance by any Loan Party of any Loan Document to which it is to be a
party, the borrowing of the Loans, the use of the proceeds thereof or the issuance
of Letters of Credit hereunder.
SECTION 3.04.
Financial Condition; No Material Adverse Change.
(a)
The consolidated balance sheet of Parent and its subsidiaries as at January 30,
2016, and the related consolidated statements of income and cash flows of
Parent and its subsidiaries for the fiscal year then ended, accompanied by an
opinion of KPMG LLP, independent public accountants, copies of which have been
furnished to the Lenders, fairly present the consolidated financial condition
of Parent and its subsidiaries as at such date and the consolidated results of
the operations of Parent and its subsidiaries for the fiscal year ended on such
date, all in accordance with GAAP consistently applied.
(b) Since
January 30, 2016, there has been no material adverse change in the business,
condition (financial or otherwise), operations, performance, properties or
prospects of Parent and its Subsidiaries, taken as a whole.
SECTION 3.05.
Litigation.
There is no pending or
threatened action, suit, investigation, litigation or proceeding affecting
Parent or any Subsidiary pending or threatened before any Governmental
Authority or arbitrator that (a) would be reasonably likely to have a
Material Adverse Effect or (b) purports to affect the legality, validity
or enforceability of any Loan Document or the consummation of the transactions
contemplated hereby.
SECTION 3.06.
Investment Company Status.
None of the
Loan Parties is an investment company, within the meaning of the Investment
Company Act of 1940.
SECTION 3.07.
ERISA.
(a) No ERISA Event has
occurred or is reasonably expected to occur with respect to any Plan that has
resulted in or is reasonably expected to have a Material Adverse Effect.
(b) Neither
the Borrower nor any ERISA Affiliate has incurred or is reasonably expected to
incur any Withdrawal Liability to any Multiemployer Plan that could be
reasonably expected to have a Material Adverse Effect.
(c) Each Plan
satisfies the funding requirements under Section 302 of ERISA and there has
been no change in the funding status of any such Plan since the last annual
actuarial valuation date that would reasonably be expected to have a Material
Adverse Effect.
SECTION 3.08.
Compliance with Laws.
Each of the Borrower and
its Subsidiaries is in compliance with all laws applicable to it, except where
the failure to comply, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 3.09.
Anti-Corruption Laws and Sanctions
. Parent and
the Borrower have implemented and maintain in effect policies and procedures
designed to ensure compliance by Parent, the Borrower, their Subsidiaries and
their respective directors, officers, employees and agents with Anti-Corruption
Laws and applicable Sanctions, and Parent, the Borrower, their Subsidiaries and
their respective officers and directors and to the knowledge of Parent and the
Borrower their employees and agents, are in compliance with Anti-Corruption
Laws and applicable Sanctions in all material respects. None of
(a) Parent, the Borrower, any Subsidiary or to the knowledge of Parent or the
Borrower or such Subsidiary any of their respective directors, officers or
employees, or (b) to the knowledge of Parent or the Borrower, any agent of
Parent or the Borrower or any Subsidiary that will act in any capacity in
connection with or benefit from the credit facility established hereby, is a
Sanctioned Person. No Borrowing or Letter of Credit, use of proceeds or other
transaction contemplated by this Agreement will violate any Anti-Corruption Law or applicable Sanctions.
SECTION
3.10.
Federal Reserve Regulations.
None of
Parent, the Borrower or any Subsidiary is engaged or will engage, principally
or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U of the Board), or
extending credit for the purpose of purchasing or carrying margin stock.
No part of the proceeds of the Loans will be used, directly or indirectly, for
any purpose that entails a violation (including on the part of any Lender) of
any of the regulations of the Board, including Regulations U and X.
ARTICLE IV
Conditions
SECTION 4.01.
Effective Date.
The obligations of the
Lenders to make Loans and of the Issuing Banks to issue Letters of Credit
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The
Paying Agent (or its counsel) shall have received from each party hereto either
(i) a counterpart of this Agreement signed on behalf
of such party or (ii) written evidence satisfactory to the Paying Agent
(which may include facsimile or other electronic transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(b) The
Paying Agent (or its counsel) shall have received from Parent and the Borrower
either (i) a counterpart of the Guarantee
Agreement (in the form attached hereto as Exhibit B) signed on behalf of
such party or (ii) written evidence satisfactory to the Paying Agent (which may
include facsimile or other electronic transmission of a signed signature page
of the Guarantee Agreement) that such party has signed a counterpart of the
Guarantee Agreement.
(c) The Paying
Agent shall have received a favorable written opinion (addressed to the Paying
Agent and the Lenders and dated as of the Effective Date) of (i) Jones Day, counsel to the Loan Parties and
(ii) Dennis J. Broderick, the General Counsel of the Parent, in each case
covering such matters relating to the Loan Parties, the Transactions or the
Loan Documents as the Required Lenders or the Paying Agent shall reasonably
request. Parent and the Borrower hereby request such counsel to deliver
such opinions.
(d) The
Paying Agent shall have received such documents and certificates as the Paying
Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the Loan Parties and the authorization of the
Transactions and any other legal matters relating to the Loan Parties, the
Transactions or the Loan Documents, all in form and substance satisfactory to
the Paying Agent and its counsel, including all documentation and other
information required by bank regulatory authorities under applicable know your
customer and anti-money laundering rules and regulations, including the
Patriot Act.
(e) The
representations and warranties of the Loan Parties set forth in the Loan
Documents shall be true and correct in all material respects as of the
Effective Date, no Default shall have occurred and be continuing as of the
Effective Date and the Paying Agent shall have received a certificate, dated
the Effective Date and signed by a Responsible Officer or a Financial Officer
of Parent and the Borrower, confirming the foregoing.
(f) The
Paying Agent shall have received all fees and other amounts due and payable on
or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower under the Loan Documents.
(g) Prior to
or substantially contemporaneously with the satisfaction of the conditions set
forth herein on the Effective Date, the principal of all loans or advances, and
all interest, fees and other amounts accrued or otherwise owing, under the
Existing Credit Agreement shall have been or shall be paid in full and the
commitments thereunder shall have been or shall be terminated, and the Paying
Agent shall have received reasonably satisfactory evidence thereof.
The Paying Agent
shall notify the Borrower and the Lenders of the effectiveness of the
obligations of the Lenders and the Issuing Banks, and such notice shall be
conclusive and binding. Notwithstanding the foregoing, the obligations of
the Lenders to make Loans and of any Issuing Bank to issue any Letter of Credit
and the incorporation of the Existing Letters of Credit as Letters of Credit
hereunder shall not become effective unless each of the foregoing conditions is
satisfied or waived prior to 5:00 p.m., New York City time, on June 15, 2016
(and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION
4.02.
Each
Credit Event.
The obligation of each Lender to make a Loan on
the occasion of any Borrowing, and of each Issuing Bank to issue, amend, renew
or extend any Letter of Credit, is subject to the satisfaction of the following
conditions:
(a) The
representations and warranties of the Loan Parties set forth in this Agreement
(other than those in Section 3.04(b) and clause (a) of
Section 3.05, at such times when the Public Debt Ratings are Baa3 and BBB-
or better) shall be true and correct on and as of the date of such Borrowing or
the date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable.
(b) At the
time of and immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal
or extension of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Loan Parties on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been
terminated and the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full and all Letters of Credit shall have
expired or terminated and all LC Disbursements shall have been reimbursed, each
of Parent and the Borrower covenants and agrees with the Lenders that:
SECTION 5.01.
Financial Statements; Ratings Change and Other
Information.
Parent or the Borrower will furnish to the Paying
Agent and each Lender:
(a) as soon
as available and in any event within 90 days after the end of each fiscal
year of Parent, a copy of the annual audit report for such year for Parent and
its consolidated subsidiaries, containing a consolidated balance sheet of
Parent and its consolidated subsidiaries as of the end of such fiscal year and
consolidated statements of income and cash flows of Parent and its consolidated
subsidiaries for such fiscal year, in each case accompanied by an opinion by
KPMG LLP or other independent public accountants of recognized national
standing (without a going concern or like qualification or exception and
without any qualification or exception as to the scope of such audit) and
certificates of a Financial Officer of Parent (i) as
to compliance with the terms of this Agreement, (ii) setting forth in
reasonable detail the then applicable Public Debt Ratings and the Interest
Coverage Ratio and the Leverage Ratio as of the end of such fiscal year and the
calculations necessary to demonstrate compliance with Sections 6.05 and
6.06 as of the end of such fiscal year and (iii) stating whether any change in
GAAP or in the application thereof has occurred since the date of the last
consolidated financial statements of Parent and its consolidated subsidiaries
referred to in Section 3.04(a) that materially affects the financial statements
accompanying such certificate and, if any such change has occurred, specifying
the effect of such change on the financial statements accompanying such
certificate;
(b) as soon
as available and in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of Parent, a consolidated
balance sheet of Parent and its consolidated subsidiaries as of the end of such
quarter and consolidated statements of income and cash flows of Parent and its
consolidated subsidiaries for the period commencing at the end of the previous
fiscal year of Parent and ending with the end of such quarter, duly certified
(subject to year-end audit adjustments) by a Financial Officer of Parent as
having been prepared in accordance with GAAP, and certificates of a Financial
Officer of Parent (i) as to compliance with the
terms of this Agreement, (ii) setting forth in reasonable detail the then
applicable Public Debt Ratings and the Interest Coverage Ratio and the Leverage
Ratio as of the end of such fiscal quarter and the calculations necessary to
demonstrate compliance with Sections 6.05 and 6.06 as of the end of such
fiscal quarter and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the last consolidated
financial statements of Parent and its consolidated subsidiaries referred to in
Section 3.04(a) that materially affects the financial statements accompanying
such certificate and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate;
(c) as soon
as possible and in any event within five days after any Responsible Officer
becomes aware of the occurrence of a Default or an event, development or
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect, in each case continuing on the date of such statement, a
statement of a Financial Officer of Parent or the Borrower setting forth
details of such Default, event, development or other circumstance (including
the anticipated effect thereof) and the action that Parent or the Borrower has
taken and proposes to take with respect thereto;
(d)
promptly after the sending thereof, copies of all reports that Parent or the
Borrower sends to any of the holders of any class of its outstanding
securities;
(e) promptly
after the commencement thereof, notice of all actions, suits, investigations,
litigation and proceedings before any Governmental Authority or arbitrator
affecting Parent or any Subsidiary of the type described in Section 3.05;
(f) as soon
as possible and in any event within five Business Days after any change in
either Public Debt Rating, a certificate of a Financial Officer of Parent
setting forth such Public Debt Rating; and
(g) such other information respecting the business, condition
(financial or otherwise), operations, performance, properties or prospects of
Parent or any Subsidiary as any Lender through either Administrative Agent may
from time to time reasonably request.
The
Borrower and Parent also agree that promptly after any report or registration
statement, other than a registration statement on Form S‑8 or any
successor form thereto, is filed by Parent or any Subsidiary with the
Securities and Exchange Commission or any national securities exchange a copy
thereof will be made available on Parents website.
SECTION 5.02.
Existence.
Parent will, and will cause
each of the Subsidiaries to, preserve and maintain, its corporate existence,
rights (charter and statutory), permits, licenses, approvals, privileges and
franchises, except, with respect to such rights, permits, licenses, approvals,
privileges and franchises, where the failure to do so could not be reasonably
expected to have a Material Adverse Effect;
provided
that Parent and the
Subsidiaries may consummate any merger or consolidation permitted under
Section 6.03 and,
provided
,
further
, that, unless required
in order to comply with Section 6.03, neither Parent nor any Subsidiary
shall be required to preserve or maintain (i) the
corporate existence of any Minor Subsidiary if the Board of Directors of the
parent of such Minor Subsidiary, or an executive officer of such parent to whom
such Board of Directors has delegated the requisite authority, shall determine
that the preservation and maintenance thereof is no longer desirable in the conduct
of the business of such parent and that the loss thereof is not disadvantageous
in any material respect to Parent, the Borrower, such parent, the Paying Agent,
the Issuing Banks or the Lenders or (ii) any right, permit, license,
approval, privilege or franchise if the Board of Directors of Parent or such
Subsidiary shall determine that the preservation thereof is no longer desirable
in the conduct of the business of Parent or such Subsidiary, as the case may
be, and that the loss thereof is not disadvantageous in any material respect to
Parent, such Subsidiary, the Paying Agent, the Issuing Banks or the Lenders.
SECTION 5.03.
Payment of Obligations.
Parent will, and
will cause each of the Subsidiaries to, pay and discharge, before the same shall become delinquent,
(a) all Taxes imposed upon it or upon its property and (b) all lawful
claims that, if unpaid, might by law become a Lien upon its property;
provided
that neither Parent nor any Subsidiary shall be required to pay or discharge
any such Tax or claim (i) that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against its other creditors or
(ii) if such non-payments, either individually or in the aggregate, could
not be reasonably expected to have a Material Adverse Effect.
SECTION 5.04.
Maintenance of Properties; Insurance.
(a) Except where the
failure to do so, either individually or in the aggregate, could not be
reasonably expected to have a Material Adverse Effect, Parent will, and will
cause each of the Subsidiaries to, maintain and preserve all of its properties
that are used or useful in the conduct of its business in good working order
and condition, ordinary wear and tear excepted.
(b) Parent
will, and will cause each of the Subsidiaries to, maintain insurance with
responsible and reputable insurance companies or associations in such amounts
and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which
Parent or such Subsidiary operates, except where failure to maintain such
insurance could not be reasonably expected to have a Material Adverse Effect.
SECTION 5.05.
Books and Records; Inspection Rights.
(a) Parent will,
and will cause each of the Subsidiaries to, keep proper books of record and
account in such detail as is necessary to allow the delivery of the reports
required by Section 5.01, in which full and correct entries shall be made of
all financial transactions and the assets and business of Parent and its
consolidated subsidiaries in accordance with GAAP.
(b) Parent
will, and will cause each of the Subsidiaries to, at any reasonable time and
from time to time, upon reasonable notice, permit any Agent or any of the
Lenders or any agents or representatives thereof, to examine the records and
books of account of, and visit the properties of, Parent or any Subsidiary and
to discuss the affairs, finances and accounts of Parent or any Subsidiary with
any of their financial officers.
SECTION 5.06.
Compliance with Laws.
(a) Parent will, and
will cause each of the Subsidiaries to comply, in all material respects, with
all applicable laws, rules, regulations and orders (including ERISA and
environmental laws), except, in any case, where the failure so to comply,
either individually or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect.
(b) The
Borrower will maintain in effect and enforce policies and procedures designed
to ensure compliance by the Borrower, its Subsidiaries and their respective
directors, officers, employees and agents with Anti-Corruption Laws and
applicable Sanctions.
SECTION 5.07.
Use of Proceeds and Letters of Credit.
(a) The proceeds of the
Loans will be used only for working capital and general corporate
purposes. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations T, U and X. Letters
of Credit will be issued only for general corporate purposes.
(b) The
Borrower shall not request any Borrowing or Letter of Credit, and the Borrower
shall not use, and shall ensure that its Subsidiaries and its or their
respective directors, officers, employees and agents shall not use, the
proceeds of any Borrowing or Letter of Credit (i) in
furtherance of an offer, payment, promise to pay, or authorization of the
payment or giving of money, or anything else of value, to any Person in
violation of any Anti-Corruption Laws, (ii) for the purpose of funding,
financing or facilitating any activities, business or transaction of or with
any Sanctioned Person, or in any Sanctioned Country, to the extent such
activities, business or transaction would be prohibited by Sanctions if
conducted by a corporation incorporated in the United States, or (iii) in any
manner that would result in the violation of any Sanctions applicable to
any party hereto.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or
terminated and the principal of and interest on each Loan and all fees payable
hereunder have been paid in full and all Letters of Credit have expired or
terminated and all LC Disbursements shall have been reimbursed, each of Parent
and the Borrower covenants and agrees with the Lenders that:
SECTION
6.01.
Subsidiary
Indebtedness.
Parent will not permit any Subsidiary (other
than the Borrower) to create, assume or suffer to exist, any Indebtedness,
other than:
(a)
Indebtedness owed to Parent or to a wholly owned Subsidiary;
(b)
Indebtedness existing on the Effective Date (whether such Indebtedness is
Indebtedness of a subsidiary of Parent or a subsidiary of the Borrower) and
described on Schedule 6.01 (the
Existing Indebtedness
), and any
Indebtedness extending the maturity of, or refunding or refinancing, in whole
or in part, the Existing Indebtedness;
provided
that the principal
amount of such Existing Indebtedness shall not be increased above the principal
amount thereof outstanding immediately prior to such extension, refunding or
refinancing, and the direct and contingent obligors therefor shall not be
changed as a result of, or in connection with, such extension, refunding or
refinancing;
(c) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d)
Indebtedness of any Person that becomes a Subsidiary after the date hereof that
is existing at the time such Person becomes a Subsidiary (other than
Indebtedness incurred solely in contemplation of such Person becoming a
Subsidiary) and any Indebtedness extending the maturity of, or refunding or
refinancing, such Indebtedness, in whole or in part;
provided
that the
principal amount of such Indebtedness shall not be increased above the
principal amount thereof outstanding immediately prior to such extension,
refunding or refinancing, and the direct and contingent obligors therefor shall
not be changed as a result of, or in connection with, such extension, refunding
or refinancing; and
(e) other Indebtedness in an aggregate principal amount at any
time outstanding not to exceed $750,000,000.
SECTION 6.02.
Liens.
Parent will not, and will not
permit any Subsidiary to, create, incur, assume or suffer to exist any Lien on
or with respect to any of its assets of any character (including accounts)
whether now owned or hereafter acquired, or assign any accounts or other right
to receive income, except:
(a) Liens
created or existing under the Loan Documents;
(b) Permitted
Encumbrances;
(c) the Liens existing on the Effective Date and described on
Schedule 6.02 (whether such Liens are on the assets of Parent or any of
its subsidiaries);
(d) purchase
money Liens upon or in real property or equipment acquired or held in the
ordinary course of business to secure the purchase price of such property or
equipment or to secure Indebtedness incurred solely for the purpose of
financing the acquisition, construction or improvement of any such property or
equipment to be subject to such Liens, or Liens existing on any such property
or equipment at the time of acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to finance the
acquisition of such property or equipment), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount;
provided
that no such Lien shall extend to or cover any properties of any character
other than the real property or equipment being acquired, constructed or
improved (except that Liens incurred in connection with the construction or
improvement of real property may extend to additional real property immediately
contiguous to such property being constructed or improved) and no such
extension, renewal or replacement shall extend to or cover any such properties
not theretofore subject to the Lien being extended, renewed or replaced;
(e) Liens
arising in connection with Capital Lease Obligations;
provided
that no
such Lien shall extend to or cover any assets other than the assets subject to
the applicable capital leases;
(f) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with Parent or any Subsidiary or becomes a Subsidiary;
provided
that such Liens (other than replacement Liens permitted under clause (j)
below) were not created in contemplation of such merger, consolidation or
investment and do not extend to any assets other than those of the Person
merged into or consolidated with Parent or such Subsidiary or acquired by the
Parent or such Subsidiary;
(g) Liens
securing Documentary LCs or Trade Letters of Credit;
provided
that no
such Lien shall extend to or cover any assets of Parent or any Subsidiary other
than the inventory (and bills of lading and other documents related thereto)
being financed by any such Documentary LCs or Trade Letter of Credit, as the
case may be;
(h) Liens in
respect of goods consigned to Parent or any of its Subsidiaries in the ordinary
course of business;
provided
that such Liens are limited to the goods so
consigned;
(i) Liens (other than on inventory) securing
Indebtedness incurred by Parent or the Subsidiaries;
provided
that the
sum of the aggregate amount of such Indebtedness at any time outstanding shall
not exceed $750,000,000; and
(j) the
replacement, extension or renewal of any Lien permitted by clause (c) or
(f) above upon or in the same property theretofore subject thereto or, in the
case of Liens on real property and related personal property of Parent or any
of the Subsidiaries, upon or in substitute property of like kind of Parent or
such Subsidiary, as the case may be, determined in good faith by the Board of
Directors of Parent or such Subsidiary to be of the same or lesser value than
the property theretofore subject thereto, or the replacement, extension or
renewal (without increase in the amount or change in any direct or contingent
obligor) of the Indebtedness secured thereby.
SECTION 6.03.
Fundamental Changes; Conduct of Business.
(a)
Parent will not, and will not permit the Borrower or any other Material
Subsidiary to, merge or consolidate with or into any Person except that (i) any Subsidiary may merge or consolidate with or
into any other Subsidiary (provided that, if the Borrower is a party to any
such merger or consolidation, the Borrower shall be the surviving entity and
shall remain a direct, wholly owned subsidiary of Parent), (ii) any
Subsidiary may merge into Parent and Parent may merge with any other Person, so
long as in either case Parent is the surviving corporation and (iii) in
connection with any acquisition, any Subsidiary may merge into or consolidate
with any other Person or permit any other Person to merge into or consolidate with
it, so long as the Person surviving such merger shall be a Subsidiary (provided
that, if the Borrower is a party to any such merger or consolidation, the
Borrower shall be the surviving entity and shall remain a direct, wholly owned
subsidiary of Parent);
provided
that in each case, no Event of
Default shall have occurred and be continuing at the time of such proposed
transaction or would result therefrom.
(b) Parent
and the Borrower will not liquidate or dissolve, the Borrower will not
reorganize in any jurisdiction located outside of the United States of America,
and Parent will not, and will not permit any Subsidiary to sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of the assets of Parent and the
Subsidiaries, taken as a whole (whether now owned or hereafter acquired).
(c) Parent
will not, and will not permit any Subsidiary to, engage to any material extent
in any business other than businesses of the type conducted by Parent and its
subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto.
SECTION 6.04.
Sale and Leaseback Transactions.
Parent
will not, and will not permit any Subsidiary to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred, except for (a) any such sale of any fixed or capital
assets that is made for cash consideration in an amount not less than the cost
of such fixed or capital asset and is consummated within 90 days after Parent
or such Subsidiary acquires or completes the construction of such fixed or
capital asset and (b) pursuant to Economic Development Transactions and (c) any
such sale of any fixed or capital assets for fair market value;
provided
that the fair market value of all such assets sold in reliance upon this
clause (c) plus the aggregate amount of Indebtedness at any time
outstanding secured by Liens in reliance on Section 6.02(i) shall not exceed 12.5% of Consolidated Net Tangible
Assets, determined as of the date of any such sale.
SECTION 6.05.
Leverage Ratio.
Parent will not permit the Leverage Ratio as of
the last day of any Measurement Period to exceed 3.75 to 1.00.
SECTION 6.06.
Interest Coverage Ratio.
Parent will not
permit the Interest Coverage Ratio as of the last day of any Measurement Period
to be less than 3.25 to 1.00.
ARTICLE VII
Events of Default
If any of the following events (
Events of
Default
) shall occur:
(a) the
Borrower shall fail to pay any principal of any Loan when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) the
Borrower or Parent shall fail to pay any interest on any Loan or any fee or any
other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due
and payable, and such failure shall continue unremedied
for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of any Loan Party in or in connection with any Loan Document shall prove
to have been incorrect in any material respect when made or deemed made;
(d) either Parent or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.01(c)
or (e), 5.02 (with respect to Parents or the Borrowers existence) or 5.07 or
in Article VI;
(e) any Loan
Party shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document (other than those specified in clause (a),
(b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after notice
thereof from the Paying Agent to Parent or the Borrower (which notice will be
given at the request of any Lender);
(f) Parent,
the Borrower or any other Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable (after
giving effect to any applicable grace periods);
(g) any event
or condition occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits (after giving effect
to any applicable grace periods) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided
that this clause (g) shall not apply to secured Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(h) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or
other relief in respect of Parent, the Borrower or any other Subsidiary or its
debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Parent,
the Borrower or any other Subsidiary or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) Parent, the Borrower or any other Subsidiary shall
(i) voluntarily commence any proceeding or file
any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Parent, the Borrower or any other
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(j) Parent,
the Borrower or any other Subsidiary shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or
more judgments for the payment of money in an aggregate amount in excess of
$150,000,000 shall be rendered against Parent, the Borrower, any other
Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to attach or levy upon any assets of Parent, the Borrower or any other
Subsidiary to enforce any such judgment;
provided
that any such
judgments shall only result in an Event of Default under this clause (k) if and
to the extent that the aggregate amount of such judgments not covered by a
valid and binding policy of insurance between the defendant and the insurer
covering the payment thereof exceeds $150,000,000 so long as such insurer,
which shall be rated at least A by A.M. Best Company, has been notified of,
and has not disputed the claim made for payment of, the amount of such
judgments;
(l) an ERISA
Event shall have occurred that, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability of
Parent, the Borrower or any other Subsidiary in an aggregate amount exceeding
$150,000,000;
(m) the
Parents Guarantee of the Obligations purported to be created under the
Guarantee Agreement shall cease to be, or shall be asserted by any Loan Party
not to be, in full force and effect (other than in accordance with the express
terms of any Loan Document); or
(n) a Change in Control shall occur;
then, and in every such event (other than an event
with respect to the Borrower described in clause (h) or (i) of this Article), and at any time thereafter during the
continuance of such event, the Paying Agent may, and at the request of the
Required Lenders shall, by notice to Parent or the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to
be due and payable), and thereupon the principal of the Loans so declared to be
due and payable, together with accrued interest thereon and all fees and other
obligations of the Loan Parties accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Loan Parties; and in case of any event
with respect to the Borrower described in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the Loan Parties
accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Loan Parties.
ARTICLE VIII
The Agents
Each of the Lenders and the Issuing Banks
hereby irrevocably appoints each Agent as its agent and authorizes each Agent
to take such actions on its behalf and to exercise such powers as are delegated
to such Agent by the terms of the Loan Documents, together with such actions
and powers as are reasonably incidental thereto.
Each bank serving as an Agent hereunder shall
have the same rights and powers in its capacity as a Lender or an Issuing Bank
as any other Lender or Issuing Bank and may exercise the same as though it were
not an Agent, and such bank and its Affiliates may accept deposits from, lend
money to, act as the financial advisor or in any other advisory capacity for
and generally engage in any kind of business with Parent, the Borrower or any
other Subsidiary or other Affiliate thereof as if it were not an Agent
hereunder and without any duty to account therefor to the Lenders.
No Agent shall have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting
the generality of the foregoing, (a) no Agent shall be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (b) no Agent shall have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that such Agent
is required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02);
provided
that no Agent
shall be required to take any action that, in its opinion, could expose such
Agent to liability or be contrary to any Loan Document or applicable law, and
(c) except as expressly set forth in the Loan Documents, no Agent shall
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to Parent, the Borrower, any of the other Subsidiaries
or any other Affiliate of any of the foregoing that is communicated to or
obtained by the bank serving as an Agent or any of its Affiliates in any
capacity. No Agent shall be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or wilful misconduct, as determined
by a court of competent jurisdiction by a final and non-appealable
judgment. No Agent shall be deemed to have knowledge of any Default
unless and until written notice thereof is given such Agent by Parent, the
Borrower or a Lender, and no Agent shall be responsible for or have any duty to
ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth in any
Loan Document or the occurrence of any Default, (iv) the sufficiency,
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of
any condition set forth in Article IV or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to
such Agent.
Each Agent shall be entitled to rely, and shall
not incur any liability for relying, upon any notice, request, certificate,
consent, statement, instrument, document or other writing (including any
electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person (whether or not such Person in fact meets
the requirements set forth in the Loan Documents for being the signatory,
sender or authenticator thereof). Each Agent also may rely, and shall not
incur any liability for relying, upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person (whether or not
such Person in fact meets the requirements in the Loan Documents for being the
signatory, sender or authenticator thereof), and may act upon any such
statement prior to receipt of written confirmation thereof. Each Agent
may consult with legal counsel (who may be counsel for Parent or the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
Each Agent may perform any and all its duties
and exercise its rights and powers hereunder or under any other Loan Document
by or through any one or more sub-agents appointed by such Agent. Each
Agent and any such sub-agent may perform any and all its duties and exercise
its rights and powers through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as such Agent.
Subject to the appointment and acceptance of a
successor Paying Agent or Administrative Agent as provided in this paragraph,
the Paying Agent or an Administrative Agent may resign at any time by notifying
the Lenders, the Issuing Banks and Parent. Upon any such resignation, the
Required Lenders shall have the right with the consent of Parent (not to be
unreasonably withheld), to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Paying Agent or
Administrative Agent, as the case may be, gives notice of its resignation, then
the retiring Paying Agent or Administrative Agent may, on behalf of the Lenders
and the Issuing Banks, appoint a successor Paying Agent or Administrative
Agent, as applicable, which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of
its appointment as Paying Agent or Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Paying Agent or
Administrative Agent, as applicable, and the retiring Paying Agent or
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by either Parent or the Borrower to a
successor Paying Agent or Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between such Loan Party and
such successor. After the Paying Agents or Administrative Agents
resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for the benefit of such retiring Paying Agent or
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Paying Agent or Administrative Agent.
Each Lender and Issuing Bank acknowledges that
it has, independently and without reliance upon any Agent or any other Lender
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each
Lender and Issuing Bank also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender or Issuing Bank and based
on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or related
agreement or any document furnished hereunder or thereunder.
Each Lender, by delivering its signature page
to this Agreement and funding its Loans on the Effective Date, or delivering
its signature page to an Assignment and Assumption pursuant to which it shall
become a Lender hereunder, shall be deemed to have acknowledged receipt of, and
consented to and approved, each Loan Document and each other document required
to be delivered to, or be approved by or satisfactory to, the Agents or the
Lenders on the Effective Date.
Notwithstanding anything herein to the
contrary, no Syndication Agent or any Person named on the cover page of this
Agreement as a Joint Bookrunner and Lead Arranger
shall have any duties or obligations under this Agreement or any other Loan
Document (except in its capacity, as applicable, as an Administrative Agent,
the Paying Agent, a Lender or an Issuing Bank), but all such Persons shall have
the benefit of the indemnities provided for hereunder.
The provisions of this Article are solely for
the benefit of the Agents, the Lenders and the Issuing Banks, and neither the
Borrower nor any other Loan Party shall have any rights as a third party
beneficiary of any such provisions.
ARTICLE IX
Miscellaneous
SECTION 9.01.
Notices.
(a) Except in the case
of notices and other communications expressly permitted to be given by
telephone (and subject to paragraph (b) below), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(i) if to Parent or the Borrower, to it at Macys, Inc., 7
West Seventh Street, Cincinnati, Ohio 45202, Attention of the Chief
Financial Officer, with a copy to the General Counsel (other than in the case
of any notice or communication provided for under Article II) (Telecopy
No. (513) 579-7462);
(ii) if to the
Paying Agent or JPMorgan Chase Bank, N.A. as Administrative Agent or Issuing
Bank, to JPMorgan Chase Bank, N.A., 500 Stanton Christian Road, Ops 2 Floor 3,
Newark DE 19713, Attention of Pranay Tyagi (Telecopy No. (302) 634-8459), with a copy to
JPMorgan Chase Bank, N.A., 383 Madison Avenue, New York, New
York 10179, Attention of Anna Kostenko (Telecopy
No. (212) 270-6637);
(iii) if to Bank of
America, N.A., as Administrative Agent or Issuing Bank, to it at 2001 Clayton
Road, Building B, 2
nd
Floor, CA4-704-02-25, Concord, California
94520, Attention of Faizan Hafeez
(Telecopy No. (866) 540-7550); and
(iv) if to any other Lender or Issuing Bank, to it at its address
(or telecopy number) set forth in its Administrative Questionnaire.
(b) Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Paying
Agent;
provided
that the foregoing shall not apply to notices pursuant
to Article II unless otherwise agreed by the Paying Agent and the
applicable Lender. The Paying Agent, Parent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it;
provided
that approval of such procedures may be limited to particular notices or
communications.
(c) Any party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 9.02.
Waivers; Amendments.
(a) No failure or delay
by the Paying Agent, any Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Paying Agent, the Issuing
Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of any Loan Document or consent to any
departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Paying Agent,
any Lender or any Issuing Bank may have had notice or knowledge of such Default
at the time.
(b) Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except, in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by Parent, the
Borrower and the Required Lenders or by Parent, the Borrower and the Paying
Agent with the consent of the Required Lenders or, in the case of any other
Loan Document, pursuant to an agreement or agreements in writing entered into
by the Paying Agent and the Loan Party or Loan Parties that are parties thereto
with the consent of the Required Lenders;
provided
that no such
agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the scheduled date of payment
of the principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.17(b) or (c) in a manner that would alter the
pro rata sharing of payments required thereby, without the written consent of
each Lender, (v) change any of the provisions of this Section or the
definition of Required Lenders or any other provision of any Loan Document
specifying the number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender or (vi) release
Parent from its Guarantee under the Guarantee Agreement or limit its liability
thereunder, without the written consent of each Lender;
provided further
that no such agreement shall amend, modify or otherwise affect the rights or
duties of any Agent or an Issuing Bank hereunder without the prior written
consent of such Agent or such Issuing Bank , as the case may be.
Notwithstanding the foregoing, (A) no consent with respect to any
amendment, waiver or other modification of this Agreement or any other Loan
Document shall be required of (1) any Defaulting Lender, except with
respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph
and then only in the event such Defaulting Lender shall be affected by such
amendment, waiver or other modification or (2) any Lender that receives
payment in full of the principal of and interest accrued on each Loan made by,
and all other amounts owing to, such Lender or accrued for the account of such
Lender under this Agreement and the other Loan Documents at the time such
amendment, waiver or other modification becomes effective and whose Commitments
terminate by the terms and upon the effectiveness of such amendment, waiver or
other modification, (B) any provision of this Agreement or any other Loan
Document may be amended by an agreement in writing entered into by the Borrower
and the Administrative Agent to cure any ambiguity, omission, defect or
inconsistency so long as, in each case, the Lenders shall have received at
least five Business Days prior written notice thereof and the Administrative
Agent shall not have received, within five Business Days of the date of such
notice to the Lenders, a written notice from (x) the Required Lenders stating
that the Required Lenders object to such amendment or (y) any Issuing Bank
affected thereby stating that it objects to such amendment, and (C) this
Agreement may be amended without the consent of the Required Lenders to
increase the Total Commitments pursuant to Section 2.19.
SECTION 9.03.
Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses
incurred by each Agent, each Syndication Agent and their respective Affiliates
(including the reasonable fees, charges and disbursements of one outside
counsel (and any local or special counsel where appropriate) and, in connection
with a conflict, one additional counsel per affected party) for the Agents and
Syndication Agents, collectively, in connection with the syndication of the
credit facilities provided for herein, the preparation and administration of
the Loan Documents or any amendments, modifications or waivers of the
provisions thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all out-of-pocket expenses
incurred by any Agent, any Syndication Agent, any Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for any Agent, any
Syndication Agent, any Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made
or Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) The
Borrower shall indemnify each Agent, each Syndication Agent, each Issuing Bank
and each Lender, and each Related Party of any of the foregoing Persons (each
such Person being called an
Indemnitee
) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any agreement or instrument
contemplated hereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of
Credit or the use of the proceeds therefrom (including any refusal by an
Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), or (iii) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless
of whether any Indemnitee is a party thereto and regardless of whether such
matter is initiated by a third party, Parent, the Borrower or any Affiliate of
Parent or the Borrower;
provided
that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or wilful
misconduct of such Indemnitee. This Section 9.03(b) shall not apply with
respect to Taxes other than any Taxes that represent losses, claims, damages,
liabilities or related expenses arising from any non-Tax claim.
(c) To the
extent that the Borrower fails to pay any amount required to be paid by it to
an Agent or an Issuing Bank under paragraph (a) or (b) of this Section,
each Lender severally agrees to pay to such Agent or such Issuing Bank, as the
case may be, such Lenders Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount;
provided
that (i) the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against such Agent or
such Issuing Bank in its capacity as such and (ii) if an Issuing Bank
separately agrees, as contemplated by the last sentence of Section 2.05(f), to
be subject to a standard of care different than that set forth therein, no
Lender shall be liable to such Issuing Bank hereunder for any greater amount than
would have been due if such Issuing Bank had not agreed to such different
standard of care.
(d) To the
extent permitted by applicable law, neither Parent nor the Borrower shall
assert, and each hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as
a result of, any Loan Document or any agreement or instrument contemplated
thereby, the Transactions or the other transactions contemplated hereby, any
Loan or Letter of Credit or the use of the proceeds thereof.
(e) All
amounts due under this Section shall be payable promptly after written demand
therefor.
SECTION 9.04.
Successors and Assigns.
(a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of an Issuing Bank that issues any Letter of Credit), except that
(i) neither Parent nor the Borrower may assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer
by Parent or the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of an Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c)
of this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Agents, the Issuing Banks and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions
set forth in paragraph (b)(ii) below, any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing
to it) with the prior written consent (such consent not to be unreasonably
withheld or delayed) of:
(A) Parent or the Borrower;
provided
that no
consent of Parent or the Borrower shall be required for an assignment to a
Lender or any Affiliate of a Lender or, if an Event of Default has occurred and
is continuing, any other assignee;
provided
further
that the
Parent or the Borrower shall be deemed to have consented to any such assignment
unless either the Parent or the Borrower shall object thereto by written notice
to the Paying Agent within 10 Business Days after having received notice
thereof;
(B) the Paying Agent;
provided
that no
consent of the Paying Agent shall be required for an assignment of a Commitment
to an assignee that is a Lender with a Commitment immediately prior to giving
effect to such assignment or an Affiliate of any such Lender; and
(C) each
Issuing Bank;
provided
that no consent of an Issuing Bank shall be
required for an assignment of a Commitment to an assignee that is a Lender with
a Commitment immediately prior to giving effect to such assignment or an
Affiliate of any such Lender.
(ii)
Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender
or an Affiliate of a Lender or an assignment of the entire remaining amount of
the assigning Lenders Commitment or Competitive Loans, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Paying Agent) shall not be less than $10,000,000, unless each
of the Borrower (or Parent) and the Paying Agent otherwise consent;
provided
that no such consent of the Borrower (or Parent) shall be required if an Event
of Default has occurred and is continuing;
(B) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lenders rights and
obligations under this Agreement;
provided
that this clause shall
not apply to rights in respect of outstanding Competitive Loans;
(C) the parties to each assignment shall execute and
deliver to the Paying Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it
shall not be a Lender, shall deliver to the Paying Agent an Administrative
Questionnaire and any tax forms required by Section 2.16(f).
(iii) Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lenders
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of
Sections 2.14, 2.15, 2.16 (subject to the requirements thereof) and
9.03). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 9.04 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The
Paying Agent, acting for this purpose as a non-fiduciary agent of the Loan
Parties, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount (and
stated interest) of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the
Register
).
The entries in the Register shall be conclusive absent manifest error, and the
Loan Parties, the Agents, the Issuing Banks and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the
Agents, the Borrower, any Issuing Bank and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(v) Upon its
receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee and any tax forms required by Section 2.16(f), the
assignees completed Administrative Questionnaire (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Paying Agent
shall accept such Assignment and Assumption and record the information
contained therein in the Register. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(c) Any
Lender may, without the consent of the Loan Parties, the Agents or the Issuing
Banks, sell participations to one or more banks or other entities (a
Participant
)
in all or a portion of such Lenders rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it);
provided
that (A) such Lenders obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Loan Parties, the Agents, the Issuing Banks and the other
Lenders shall continue to deal solely and directly with such Lender in connection
with such Lenders rights and obligations under the Loan Documents. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce the Loan
Documents and to approve any amendment, modification or waiver of any provision
of the Loan Documents;
provided
that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso
to Section 9.02(b) that affects such Participant. The Loan Parties
agree that each Participant shall be entitled to the benefits of
Sections 2.14, 2.15 and 2.16 (subject to the requirements and limitations
therein, including the requirements under Section 2.16(f) (it being
understood that the documentation required under Section 2.16(f) shall be
delivered to the participating Lender)) to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section;
provided
that such Participant (A) agrees to be subject
to the provisions of Sections 2.17 and 2.18 as if it were an assignee
under paragraph (b) of this Section; and (B) shall not be entitled to
receive any greater payment under Sections 2.14 or 2.16, with respect to any
participation, than its participating Lender would have been entitled to
receive, except to the extent such entitlement to receive a greater payment
results from a Change in Law that occurs after the Participant acquired the
applicable participation. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender;
provided
that such Participant agrees to be
subject to Section 2.17(c) as though it were a Lender. Each Lender
that sells a participation shall, acting solely for this purpose as a
non-fiduciary agent of the Borrower, maintain a register on which it enters the
name and address of each Participant and the principal amounts (and stated interest)
of each Participants interest in the Loans or other obligations under the Loan
Documents (the
Participant Register
);
provided
that no Lender
shall have any obligation to disclose all or any portion of the Participant
Register to any Person (including the identity of any Participant or any
information relating to a Participants interest in any Commitments, Loans,
Letters of Credit or its other obligations under any Loan Document) except to
the extent that such disclosure is necessary to establish that such Commitment,
Loan, Letter of Credit or other obligation is in registered form under Section
5f.103-1(c) of the United States Treasury Regulations. The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender
shall treat each Person whose name is recorded in the Participant Register as
the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of doubt,
neither the Paying Agent nor the Administrative Agents (in their capacities as
such) shall have any obligation to maintain a Participant Register.
(d) Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest;
provided
that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
(e)
Notwithstanding the foregoing, no assignment or participation shall be made to
(i) a natural person (or a holding company,
investment vehicle or trust for, or owned and operated for the primary benefit
of, a natural person), (ii) the Borrower or (iii) any Affiliate of the
Borrower.
SECTION 9.05.
Survival.
All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and thereto and shall survive
the execution and delivery of the Loan Documents and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that any Agent, any
Issuing Bank or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement or any other Loan Document is outstanding and unpaid or
any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.14, 2.15, 2.16
and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any other Loan
Document or any provision hereof or thereof.
SECTION 9.06.
Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This
Agreement, the other Loan Documents, any separate letter agreements with
respect to fees payable to any Agent, Lender or Issuing Bank and the provisions
of the commitment letter dated April 7, 2016, among the Borrower, JPMorgan
Chase Bank, N.A., Bank of America, N.A., Credit Suisse AG, U.S. Bank National
Association, Wells Fargo Bank, National Association and certain of their
respective Affiliates that are acting as arrangers and bookrunners
in respect of the credit facility under this Agreement (to the extent such
provisions expressly survive the termination of such commitment letter)
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have
been executed by the Paying Agent and when the Paying Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy or electronic transmission shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07.
Severability.
Any provision of this
Agreement held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
SECTION 9.08.
Right of Setoff.
If an Event of Default
shall have occurred and be continuing, each Lender and each of its Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
obligations at any time owing by such Lender or Affiliate to or for the credit
or the account of any Loan Party against any of and all the obligations of such
Loan Party now or hereafter existing under any Loan Document held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under any Loan Document and although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09.
Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement
shall be construed in accordance with and governed by the law of the State of
New York.
(b) Each of
Parent and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of
the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement or any
other Loan Document shall affect any right that any Agent, any Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against Parent, the Borrower or their
respective properties in the courts of any jurisdiction.
(c) Each of
Parent and the Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document in any
court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each
party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.01. Nothing in this Agreement
or any other Loan Document will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION 9.10.
WAIVER OF JURY TRIAL.
EACH PARTY HERETO
HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11.
Headings.
Article and Section headings
and the Table of Contents used herein are for convenience of reference only,
are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.
SECTION 9.12.
Confidentiality.
Each of the Agents, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates directors, officers, employees, third party
service providers and agents, including accountants, legal counsel and other
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of Parent
or the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or
(ii) becomes available to any Agent, any Issuing Bank or any Lender on a nonconfidential basis from a source other than Parent or
the Borrower. For the purposes of this Section,
Information
means all information received from Parent or the Borrower relating to Parent
or the Borrower or their respective businesses, other than (A) any such
information that is available to any Agent, any Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by Parent
or the Borrower and (B) information pertaining to this Agreement routinely
provided by arrangers to data service providers, including league table
providers, that serve the lending industry. Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13.
Interest Rate Limitation.
Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated
as interest on such Loan under applicable law (collectively the
Charges
),
shall exceed the maximum lawful rate (the
Maximum Rate
) which may be
contracted for, charged, taken, received or reserved by the Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest
and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.14.
Patriot Act
. Each
Lender hereby notifies the Loan Parties that pursuant to the requirements of
the Patriot Act, it is required to obtain, verify and record information that
identifies the Loan Parties, which information includes the name and address of
the Loan Parties and other information that will allow such Lender to identify
the Loan Parties in accordance with the Act.
SECTION 9.15.
Conversion of Currencies.
(a) If, for the purpose of obtaining judgment in any court, it
is necessary to convert a sum due under this Agreement in dollars into another
currency, the parties hereto agree, to the fullest extent that they may legally
and effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Paying Agent could purchase
dollars with such other currency in New York, New York, on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due
to the Paying Agent, any Lender or any Issuing Bank hereunder in dollars shall,
to the extent permitted by applicable law, notwithstanding any judgment in a currency
other than dollars, be discharged only to the extent that on the Business Day
following receipt of any sum adjudged to be so due in the judgment currency,
the Paying Agent, such Lender or such Issuing Bank may in accordance with
normal banking procedures purchase dollars in the amount originally due to the
Paying Agent, such Lender or such Issuing Bank with the judgment
currency. If the amount of dollars so purchased is less than the sum
originally due to the Paying Agent, such Lender or such Issuing Bank, the
Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Paying Agent, such Lender or such Issuing Bank
against the resulting loss.
SECTION 9.16.
No Fiduciary Duty.
Each Agent, each Lender and their Affiliates
(collectively, solely for purposes of this paragraph, the Lenders), may have
economic interests that conflict with those of the Loan Parties, their
stockholders and/or their affiliates. Each Loan Party agrees that nothing
in the Loan Documents or otherwise will be deemed to create an advisory,
fiduciary or agency relationship or fiduciary or other implied duty between any
Lender, on the one hand, and such Loan Party, its stockholders or its
affiliates, on the other. The Loan Parties acknowledge and agree that (i) the transactions contemplated by the Loan Documents
(including the exercise of rights and remedies hereunder and thereunder) are
arms-length commercial transactions between the Lenders, on the one hand, and
the Loan Parties, on the other, and (ii) in connection therewith and with the
process leading thereto, (x) no Lender has assumed an advisory or fiduciary
responsibility in favor of any Loan Party, its stockholders or its affiliates
with respect to the transactions contemplated hereby (or the exercise of rights
or remedies with respect thereto) or the process leading thereto (irrespective
of whether any Lender has advised, is currently advising or will advise any
Loan Party, its stockholders or its Affiliates on other matters) or any other
obligation to any Loan Party except the obligations expressly set forth in the
Loan Documents and (y) each Lender is acting solely as principal and not as the
agent or fiduciary of any Loan Party, its management, stockholders, creditors
or any other Person. Each Loan Party acknowledges and agrees that it has
consulted its own legal and financial advisors to the extent it deemed
appropriate and that it is responsible for making its own independent judgment
with respect to such transactions and the process leading thereto. Each
Loan Party agrees that it will not claim that any Lender has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to such
Loan Party, in connection with such transaction or the process leading thereto.
SECTION
9.17.
Non-Public
Information.
(a) Each Lender acknowledges that all information,
including requests for waivers and amendments, furnished by Parent, the
Borrower or any of the Agents pursuant to or in connection with, or in the
course of administering, this Agreement will be syndicate-level information,
which may contain MNPI. Each Lender represents to Parent, the Borrower
and each of the Agents that (i) it has developed
compliance procedures regarding the use of MNPI and that it will handle MNPI in
accordance with such procedures and applicable law, including Federal, state
and foreign securities laws, and (ii) it has identified in its Administrative
Questionnaire a credit contact who may receive information that may contain
MNPI in accordance with its compliance procedures and applicable law, including
Federal, state and foreign securities laws.
(b) Each of
Parent, the Borrower and each Lender acknowledges that, if information
furnished by Parent or the Borrower pursuant to or in connection with this
Agreement is being distributed by any of the Agents through IntraLinks/IntraAgency, SyndTrak or another
website or other information platform (the
Platform
), (i) each of the Agents may post any information that such
Borrower has indicated as containing MNPI solely on that portion of the
Platform designated for Private Side Lender Representatives and (ii) if Parent
or the Borrower has not indicated whether any information furnished by it
pursuant to or in connection with this Agreement contains MNPI, the Agents
shall post such information solely on that portion of the Platform designated
for Private Side Lender Representatives.
(c) The
Parent and the Borrower agree to specify whether any information furnished by
such entity to any of the Agents pursuant to, or in connection with, this
Agreement contains MNPI.
SECTION
9.18.
Acknowledgement and
Consent to Bail-In of EEA Financial Institutions.
Notwithstanding anything to
the contrary in any Loan Document or in any other agreement, arrangement or
understanding among the parties hereto, each party hereto acknowledges that any
liability of any EEA Financial Institution arising under any Loan Document, may
be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority
and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the
application of any Write-Down and Conversion Powers by an EEA Resolution
Authority to any such liabilities arising hereunder which may be payable to it
by any party hereto that is an EEA Financial Institution; and
(b)
the effects of any Bail-in Action on any such
liability, including, if applicable:
(i) a reduction in full or in part
or cancellation of any such liability;
(ii) a conversion
of all, or a portion of, such liability into shares or other instruments of
ownership in such EEA Financial Institution, its parent entity, or a bridge
institution that may be issued to it or otherwise conferred on it, and that
such shares or other instruments of ownership will be accepted by it in lieu of
any rights with respect to any such liability under this Agreement or any other
Loan Document; or
(iii) the variation of the terms of such liability in connection
with the exercise of the Write-Down and Conversion Powers of any EEA Resolution
Authority.
SECTION
9.19.
Waiver of Notice of
Termination Under Existing Credit Agreement
.
Each Lender that is a Lender under (and as defined in) the Existing Credit
Agreement hereby waives any requirement under the Existing Credit Agreement
that notice be given prior to the prepayment of loans or termination of
commitments thereunder;
provided
that such commitments are terminated by
notice to the paying agent under the Existing Credit Agreement on the Effective
Date.
SECTION
9.20.
Conflict with Loan Documents
. In the
event of any conflict between the terms of this Agreement and the terms of any
other Loan Document, the terms of this Agreement shall control.
[Remainder of page
intentionally left blank]
IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed and delivered
by their proper and duly authorized officers as of the day and year first above
written.
|
MACYS, INC.
|
|
|
|
|
|
By:
/s/ Matthew
Stautberg
Name: Matthew Stautberg
Title: Senior Vice President, Corporate Planning and Treasurer
|
|
|
|
|
|
MACYS RETAIL HOLDINGS, INC.
|
|
|
|
|
|
By:
/s/ Matthew
Stautberg
Name: Matthew Stautberg
Title: Vice President and Treasurer
|
|
JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent
and Paying Agent
|
|
|
|
|
|
By:
/s/
Lauren Baker
Name: Lauren Baker
Title: Vice President
|
|
BANK OF AMERICA, N.A., individually and as Administrative Agent
|
|
|
|
|
|
By:
/s/ Carlos
J. Medina
Name: Carlos J. Medina
Title: Vice President
|
|
|
BANK OF AMERICA, N.A., individually and as Administrative
Agent
|
|
|
By:
|
|
|
Name:
|
|
Carlos J. Medina
|
Title:
|
|
Vice President
|
|
|
|
|
|
|
|
CITIBANK, N.A., as Lender
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
Luc Vrettos
|
|
|
Title:
|
|
Vice President
|
|
|
|
|
|
|
|
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Lender
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
Christopher Day
|
|
|
Title:
|
|
Authorized
Signatory
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Name:
|
|
Juerg Unterlerchner
|
|
|
Title:
|
|
Authorized
Signatory
|
|
|
|
|
|
FIFTH THIRD BANK, as Lender
|
|
|
By:
|
|
|
Name:
|
|
Megan Szewc
|
Title:
|
|
Vice President
|
|
|
|
|
|
FIRST HAWAIIAN BANK, as Lender
|
|
|
By:
|
|
|
Name:
|
|
Derek Chang
|
Title:
|
|
Vice President
|
|
|
|
|
|
GOLDMAN SACHS BANK USA, as Lender
|
|
|
By:
|
|
|
Name:
|
|
Rebecca Kratz
|
Title:
|
|
Authorized Signatory
|
|
|
|
|
|
MUFG UNION BANK, N.A., as Lender
|
|
|
By:
|
|
|
Name:
|
|
Katie Cunningham
|
Title:
|
|
Vice President
|
|
|
|
|
|
PNC BANK, NATIONAL ASSOCIATION, as
Lender
|
|
|
By:
|
|
|
Name:
|
|
Jeffrey P. Fisher
|
Title:
|
|
Vice President
|
|
|
|
|
|
STANDARD CHARTERED BANK, as Lender
|
|
|
By:
|
|
|
Name:
|
|
Steven Aloupis
|
Title:
|
|
Managing Director
|
|
|
|
|
|
THE BANK OF NEW YORK MELLON, as
Lender
|
|
|
By:
|
|
|
Name:
|
|
William M. Feathers
|
Title:
|
|
Vice President
|
|
|
|
|
|
U.S. BANK NATIONAL ASSOCIATION, as
Lender
|
|
|
By:
|
|
|
Name:
|
|
Joyce P. Dorsett
|
Title:
|
|
Vice President
|
|
|
|
|
|
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Lender
|
|
|
By:
|
|
|
Name:
|
|
Daniel Van Aken
|
Title:
|
|
Director
|
|
|
Schedule 2.01
Commitments
|
|
|
Lender
|
Commitment
|
LC Commitment
|
|
|
|
JPMorgan Chase Bank, N.A.
|
$200,000,000.00
|
$100,000,000.00
|
|
|
|
Bank of America, N.A.
|
$200,000,000.00
|
$100,000,000.00
|
|
|
|
Credit Suisse AG, Cayman Islands Branch
|
$200,000,000.00
|
|
|
|
|
U.S. Bank National Association
|
$200,000,000.00
|
$100,000,000.00
|
|
|
|
Wells Fargo Bank, National Association
|
$200,000,000.00
|
$100,000,000.00
|
|
|
|
Fifth Third Bank
|
$100,000,000.00
|
|
|
|
|
PNC Bank, National Association
|
$100,000,000.00
|
|
|
|
|
Citibank N.A.
|
$62,500,000.00
|
|
|
|
|
MUFG Union Bank, N.A.
|
$62,500,000.00
|
|
|
|
|
Goldman Sachs Bank USA
|
$50,000,000.00
|
|
|
|
|
Standard Chartered Bank
|
$50,000,000.00
|
|
|
|
|
The Bank of New York Mellon
|
$50,000,000.00
|
|
|
|
|
First Hawaiian Bank
|
$25,000,000.00
|
|
|
|
|
TOTAL:
|
$1,500,000,000.00
|
$400,000,000.00
|
Schedule 6.01
Existing
Indebtedness
($000) Amount as of May 6, 2016
Description of Debt
|
Amount of Debt
|
Commercial Paper
$1.5 billion program
|
$0
|
Capitalized Leases
|
$28,826
|
Indenture dated as of December 15, 1994
U.S. Bank National Association,
as Trustee
|
$465,442
|
Indenture dated as of September 10, 1997
U.S. Bank National Association,
as Trustee
|
$700,000
|
Indenture dated as of July 20, 2004
The Bank of New York Mellon Trust
Company, N.A. as Trustee
|
$700,000
|
Indenture dated as of June 17, 1996
The Bank of New York Mellon Trust
Company, N.A. as Trustee
|
$732,341
|
Amended and Restated Indenture dated as of January 15,
1991
The Bank of New York Mellon Trust
Company, N.A. as Trustee
|
$87,129
|
Indenture dated as of November 2, 2006
U.S. Bank National Association,
as Trustee
|
$1,576,966
|
Indenture dated as of January 13, 2012
The Bank of New York Mellon Trust
Company, N.A. as Trustee
|
$3,250,000
|
Schedule
6.02
Existing Liens
Mortgage Debt
($000)
Obligor
|
Property/Location
|
Amount (5/__/16)
|
None
|
|
|
|
|
|
|
|
|
|
|
|
EXHIBIT
A
[FORM
OF]
ASSIGNMENT
AND ASSUMPTION
Reference is hereby made to the Credit
Agreement dated as of May 6, 2016 (as amended, supplemented or otherwise
modified from time to time, the
Credit Agreement
), among Macys Inc.,
a Delaware corporation (
Parent
), Macys Retail Holdings, Inc., a New
York corporation (the
Borrower
), the Lenders from time to time party
thereto, Bank of America, N.A. and JPMorgan Chase Bank, N.A., as Administrative
Agents, and JPMorgan Chase Bank, N.A., as Paying Agent, and each lender from
time to time party thereto. Terms defined in the Credit Agreement are
used herein with the same meanings.
The Assignor named below hereby sells and assigns,
without recourse, to the Assignee named below, and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective as of the
Assignment Date set forth below, the interests set forth below (the
Assigned
Interest
) in the Assignors rights and obligations under the Credit
Agreement, including the interests set forth below in the Commitment of the
Assignor on the Assignment Date and Competitive Loans and Revolving Loans owing
to the Assignor which are outstanding on the Assignment Date, together with the
participations in Letters of Credit and LC Disbursements held by the Assignor
on the Assignment Date, but excluding accrued interest and fees to and
excluding the Assignment Date. The Assignee hereby acknowledges receipt
of a copy of the Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent of the Assigned Interest, relinquish its rights and be
released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being
delivered to the Paying Agent together with (i) any
documentation required to be delivered by the Assignee pursuant to Section
2.16(f) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Paying Agent, duly
completed by the Assignee.
This Assignment and Acceptance shall be
governed by and construed in accordance with the laws of the State of
New York.
Date of Assignment: [●]
Legal Name of Assignor: [●]
Legal Name of Assignee: [●]
Assignees Address for Notices: [●]
Effective Date of Assignment
(Assignment Date): [●]
Facility
|
Principal Amount Assigned (and identifying information as
to individual Competitive Loans)
|
Percentage Assigned of Facility and Commitment (set forth,
to at least 8 decimals, as a percentage of the total Facility and the
aggregate Commitments of all Lenders thereunder)
|
Commitment Assigned:
|
|
|
Revolving Loans:
|
|
|
Competitive Loans:
|
|
|
The terms hereof are hereby agreed to:
[●], as Assignor
By:________________________
Name:
Title:
[●], as Assignee
By: _______________________
Name:
Title:
The undersigned hereby consent to
the within assignment:
Macys, Inc.,
|
Macys Retail Holdings, Inc.,
|
By:_______________________
|
By:_______________________
|
Name:
Title:
|
Name:
Title:
|
JPMorgan Chase Bank, N.A., as Paying Agent and
Issuing Bank,
|
Bank of America, N.A., as Issuing Bank
|
By:____________________
|
By:____________________
|
Name:
Title:
|
Name:
Title:
|
U.S. Bank National Association, as Issuing Bank
|
Wells Fargo Bank, National Association, as Issuing Bank
|
By:____________________
|
By:____________________
|
Name:
Title:
|
Name:
Title:
|
[●], as [Issuing Bank],
|
|
By:____________________
|
|
Name:
Title:
|
|
EXHIBIT B
[FORM OF]
GUARANTEE AGREEMENT dated as of May 6, 2016, among
MACYS, INC. (
Parent
), MACYS RETAIL HOLDINGS, INC. (the
Borrower
)
and JPMORGAN CHASE BANK, N.A., as Paying Agent.
Reference is made to the Credit Agreement dated
as of May 6, 2016 (as amended, supplemented or otherwise modified from
time to time, the
Credit Agreement
) among Parent, the Borrower, the
lenders party thereto, JPMorgan Chase Bank, N.A. and Bank of America, N.A., as
administrative agents and JPMorgan Chase Bank, N.A., as paying agent. The
obligations of the Lenders and the Issuing Banks to extend credit to the
Borrower are conditioned upon, among other things, the execution and delivery
of this Agreement. Parent is the parent company of the Borrower, will
derive substantial benefits from the extension of credit to the Borrower
pursuant to the Credit Agreement and is willing to execute and deliver this
Agreement in order to induce the Lenders to extend such credit.
Accordingly, the parties hereto agree as follows:
SECTION 10.01.
Credit Agreement.
(a) Capitalized terms
used in this Agreement and not otherwise defined herein have the meanings
specified in the Credit Agreement.
(b) The rules of
construction specified in Section 1.03 of the Credit Agreement also apply to
this Agreement.
SECTION
10.02.
Other Defined Terms.
As used in this Agreement, the following
terms have the meanings specified below:
Credit Agreement has the meaning assigned to
such term in the preliminary statement of this Agreement.
Credit Parties means (a) the Lenders,
(b) the Agents, (c) the Issuing Banks, (d) the beneficiaries of
the Borrowers indemnification obligations under the Credit Agreement and
(e) the successors and assigns of each of the foregoing.
Obligations means the due and punctual
payment by the Borrower of (a) the principal of and interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable
in such proceeding) on the Loans, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, (b) each
payment required to be made by the Borrower under the Credit Agreement in
respect of any Letter of Credit, when and as due, including payments in respect
of reimbursement of disbursements, interest thereon (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) and obligations to provide cash collateral, and (c) all other
monetary obligations of the Borrower to any of the Credit Parties under the
Credit Agreement and each of the other Loan Documents, including obligations to
pay fees, expense reimbursement obligations and indemnification obligations,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding).
SECTION 11.01.
Guarantee.
Parent unconditionally guarantees, as a primary obligor and not merely as a
surety, the due and punctual payment of the Obligations. Parent further
agrees that the Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will remain bound upon
its guarantee notwithstanding any extension or renewal of any Obligation.
Parent waives presentment to, demand of payment from and protest to the
Borrower of any of the Obligations, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment.
SECTION 11.02.
Guarantee of Payment.
Parent further agrees
that its guarantee hereunder constitutes a guarantee of payment when due and
not of collection, and waives any right to require that any resort be had by
the Paying Agent or any other Credit Party to any security held for the payment
of the Obligations or to any balance of any deposit account or credit on the
books of the Paying Agent or any other Credit Party in favor of the Borrower or
any other Person.
SECTION 11.03.
Limitations.
(a) Except for
termination of Parents obligations hereunder as expressly provided in Section
4.10, the obligations of Parent hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of Parent hereunder shall not be discharged or
impaired or otherwise affected by (i) the
failure of the Paying Agent or any other Credit Party to assert any claim or
demand or to enforce any right or remedy under the provisions of any Loan
Document or otherwise; (ii) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of, any
Loan Document or any other agreement; (iii) the release of any security
held by the Paying Agent or any other Credit Party for the Obligations or any
of them; (iv) any default, failure or delay, wilful
or otherwise, in the payment of the Obligations; or (v) any other act or
omission that may or might in any manner or to any extent vary the risk of
Parent or otherwise operate as a discharge of Parent as a matter of law or
equity (other than the payment in full in cash of all the Obligations).
Parent expressly authorizes the Credit Parties to take and hold security for
the payment and performance of the Obligations, to exchange, waive or release
any or all such security (with or without consideration), to enforce or apply
such security and direct the order and manner of any sale thereof in their sole
discretion or to release or substitute any one or more other guarantors or
obligors upon or in respect of the Obligations, all without affecting the
obligations of Parent hereunder.
(b) To the fullest
extent permitted by applicable law, Parent waives any defense based on or
arising out of any defense of the Borrower or the unenforceability of the Obligations
or any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower, other than the payment in full in cash of all the
Obligations. The Paying Agent and the other Credit Parties may, at their
election, foreclose on any security held by one or more of them by one or more
judicial or nonjudicial sales, accept an assignment
of any such security in lieu of foreclosure, compromise or adjust any part of
the Obligations, make any other accommodation with the Borrower or exercise any
other right or remedy available to them against the Borrower, without affecting
or impairing in any way the liability of Parent hereunder except to the extent
the Obligations have been paid in full in cash. To the fullest extent
permitted by applicable law, Parent waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other
right or remedy of Parent against the Borrower or any security.
SECTION 11.04.
Reinstatement.
Parent agrees that its guarantee
hereunder shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any Obligation is rescinded or
must otherwise be restored by the Paying Agent or any other Credit Party upon
the bankruptcy or reorganization of the Borrower or otherwise. The
provisions of this Section 2.04 shall survive any termination under Section
4.10.
SECTION 11.05.
Agreement
To Pay; Subrogation.
In furtherance of the
foregoing and not in limitation of any other right that the Paying Agent or any
other Credit Party has at law or in equity against Parent by virtue hereof,
upon the failure of the Borrower to pay any Obligation when and as the same
shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, Parent hereby promises to and will forthwith pay, or
cause to be paid, to the Paying Agent for distribution to the applicable Credit
Parties in cash the amount of such unpaid Obligation. Upon payment by
Parent of any sums to the Paying Agent as provided above, all rights of Parent
against the Borrower arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or otherwise shall in all
respects be subject to Article III.
SECTION 11.06.
Information.
Parent assumes all responsibility
for being and keeping itself informed of the Borrowers financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that Parent
assumes and incurs hereunder, and agrees that none of the Paying Agent or the
other Credit Parties will have any duty to advise Parent of information known
to it or any of them regarding such circumstances or risks.
SECTION 12.01.
Subordination.
Notwithstanding any provision of
this Agreement to the contrary, all rights of Parent in respect of indemnity,
contribution or subrogation under applicable law or otherwise, shall be fully
subordinated to the indefeasible payment in full in cash of the Obligations.
SECTION 13.01.
Notices.
All communications and notices
hereunder shall (except as otherwise expressly permitted herein) be in writing
and given as provided in Section 9.01 of the Credit Agreement.
SECTION 13.02.
Waivers; Amendment.
(a) No failure or delay
by any Agent, any Issuing Bank or any Lender in exercising any right or power
hereunder or under the Credit Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents, the Issuing Banks
and the Lenders hereunder and under the Credit Agreement are cumulative and are
not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by any
Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 4.02, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether any Agent, any Lender or any
Issuing Bank may have had notice or knowledge of such Default at the
time. Notwithstanding anything herein to the contrary, no sale,
assignment, novation, transfer or delegation by any Lender of any of its rights
or obligations under the Credit Agreement shall, or shall be deemed, to
extinguish any of the rights, benefits or privileges afforded by any guarantee
created hereunder in relation to such of its rights or obligations, and all
such rights, benefits and privileges shall continue to accrue, to the full
extent thereof, for the benefit of the permitted assignee, transferee or delegee of such Lender in connection with each such sale,
assignment, novation, transfer and delegation. No notice or demand on any
Loan Party in any case shall entitle any Loan Party to any other or further
notice or demand in similar or other circumstances.
(b) Neither this
Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Paying
Agent and the Loan Party or Loan Parties with respect to which such waiver,
amendment or modification is to apply, subject to any consent required in
accordance with Section 9.02 of the Credit Agreement.
SECTION 13.03.
Successors and Assigns.
Whenever in this
Agreement any party hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of Parent, the Borrower or the Paying
Agent that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns.
SECTION 13.04.
Survival of Agreement.
All covenants,
agreements, representations and warranties made by the Loan Parties in the Loan
Documents and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the Agents, the Lenders and the
Issuing Banks and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by or on behalf of the Agents, the Lenders
and the Issuing Banks and notwithstanding that any Agent, any Issuing Bank or
any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended under the Credit
Agreement, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under any Loan Document is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated.
SECTION 13.05.
Counterparts;
Effectiveness; Several Agreement.
This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract. Delivery of an executed signature page to this Agreement by
facsimile transmission, emailed pdf. or any
other electronic means that reproduces an image of the actual executed
signature page shall be as effective as delivery of a manually signed
counterpart of this Agreement. This Agreement shall become effective when
it shall have been executed by the Paying Agent and when the Paying Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each Loan Party, and thereafter shall be binding upon each Loan
Party and the Paying Agent, and shall inure to the benefit of each Loan Party,
the Paying Agent and the other Credit Parties and their respective successors
and assigns, except that no Loan Party shall have the right to assign or
transfer its rights or obligations hereunder or any interest herein (and any
such assignment or transfer shall be void) except as expressly contemplated by
this Agreement or the Credit Agreement.
SECTION 13.06.
Severability.
Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or uneforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction. The parties shall
endeavor in good‑faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 13.07.
Right
of Set-Off.
If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of Parent against any
of and all the obligations of Parent now or hereafter existing under this
Agreement owed to such Lender, irrespective of whether or not any demand for
payment thereof has been made under this Agreement and although such
obligations may be unmatured. The rights of
each Lender under this Section 4.07 are in addition to other rights and remedies
(including other rights of set-off) which such Lender may have.
SECTION 13.08.
Governing Law.
This Agreement shall be
construed in accordance with and governed by the law of the State of New York.
SECTION 13.09.
Headings.
Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be
taken into consideration in interpreting, this Agreement.
SECTION 13.10.
Termination.
Subject to Section 2.04, this
Agreement and the guarantee made herein shall terminate when the Commitments
have terminated, all the Obligations have been paid in full, the LC Exposure
has been reduced to zero and the Issuing Banks have no further obligations to
issue Letters of Credit under the Credit Agreement.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties
hereto have duly executed this Agreement as of the day and year first above
written.
MACYs, INC.,
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by
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Name:
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Title:
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MACYS RETAIL HOLDINGS, INC.,
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by
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Name:
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Title:
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JPMORGAN CHASE BANK, N.A., as
PAYING Agent,
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by
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Name:
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Title:
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EXHIBIT C-1
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement
dated as of May 6, 2016 (as amended, supplemented or otherwise modified from
time to time, the
Credit Agreement
), among Macys Inc., a Delaware
corporation (
Parent
), Macys Retail Holdings, Inc., a New York
corporation (the
Borrower
), the Lenders from time to time party
thereto, Bank of America, N.A. and JPMorgan Chase Bank, N.A., as Administrative
Agents, and JPMorgan Chase Bank, N.A., as Paying Agent.
Pursuant to the provisions of Section 2.16
of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the
Loan(s) (as well as any note(s) evidencing such Loan(s)) in respect of which it
is providing this certificate, (ii) it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent
shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of
the Code, (iv) it is not a controlled foreign corporation related to the
Borrower as described in Section 881(c)(3)(C) of the Code, and
(v) the interest payments in question are not effectively connected with
the undersigneds conduct of a U.S. trade or business.
The undersigned has furnished the Paying Agent
and the Borrower with a certificate of its non-U.S. person status on
IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By
executing this certificate, the undersigned agrees that (1) if the
information provided on this certificate changes, the undersigned shall
promptly so inform the Borrower and the Paying Agent, and (2) the undersigned
shall have at all times furnished the Borrower and the Paying Agent with a
properly completed and currently effective certificate in either the calendar
year in which each payment is to be made to the undersigned, or in either of
the two calendar years preceding such payments.
Unless otherwise
defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By:______________________________________
Name:
Title:
Date: ________ __, 20[ ]
EXHIBIT C-2
[FORM OF]
U.S. TAX
CERTIFICATE
(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit
Agreement dated as of May 6, 2016 (as amended, supplemented or otherwise
modified from time to time, the
Credit Agreement
), among Macys Inc.,
a Delaware corporation (
Parent
), Macys Retail Holdings, Inc., a New
York corporation (the
Borrower
), the Lenders from time to time party thereto,
Bank of America, N.A. and JPMorgan Chase Bank, N.A., as Administrative Agents,
and JPMorgan Chase Bank, N.A., as Paying Agent.
Pursuant to the provisions of Section 2.16
of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well
as any note(s) evidencing such Loan(s)) in respect of which it is providing
this certificate, (ii) its direct or indirect partners/members are the
sole beneficial owners of such Loan(s) (as well as any note(s) evidencing such
Loan(s)), (iii) with respect to the extension of credit pursuant to this
Credit Agreement or any other Loan Document, neither the undersigned nor any of
its direct or indirect partners/members is a bank extending credit pursuant to
a loan agreement entered into in the ordinary course of its trade or business
within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of
its direct or indirect partners/members is a ten percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code,
(v) none of its direct or indirect partners/members is a controlled
foreign corporation related to the Borrower as described in
Section 881(c)(3)(C) of the Code, and (vi) the interest payments in
question are not effectively connected with the undersigneds or its direct or
indirect partners/members conduct of a U.S. trade or business.
The undersigned has furnished the Paying Agent
and the Borrower with IRS Form W-8IMY accompanied by one of the following
forms from each of its partners/members that is claiming the portfolio interest
exemption: (i) an IRS Form W-8BEN or IRS Form
W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form
W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such
partners/members beneficial owners that is claiming the portfolio interest
exemption. By executing this certificate, the undersigned agrees that
(1) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrower and the Paying Agent, and
(2) the undersigned shall have at all times furnished the Borrower and the
Paying Agent with a properly completed and currently effective certificate in
either the calendar year in which each payment is to be made to the
undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them
in the Credit Agreement.
[NAME OF LENDER]
By:______________________________________
Name:
Title:
Date: ________ __, 20[ ]
EXHIBIT C-3
[FORM OF]
U.S. TAX
CERTIFICATE
(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit
Agreement dated as of May 6, 2016 (as amended, supplemented or otherwise
modified from time to time, the
Credit Agreement
), among Macys Inc.,
a Delaware corporation (
Parent
), Macys Retail Holdings, Inc., a New
York corporation (the
Borrower
), the Lenders from time to time party
thereto, Bank of America, N.A. and JPMorgan Chase Bank, N.A., as Administrative
Agents, and JPMorgan Chase Bank, N.A., as Paying Agent.
Pursuant to the provisions of Section 2.16
of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the
participation in respect of which it is providing this certificate,
(ii) it is not a bank within the meaning of Section 881(c)(3)(A) of
the Code, (iii) it is not a ten percent shareholder of the Borrower within
the meaning of Section 881(c)(3)(B) of the Code, (iv) it is not a
controlled foreign corporation related to the Borrower as described in
Section 881(c)(3)(C) of the Code, and (v) the interest payments in
question are not effectively connected with the undersigneds conduct of a
U.S. trade or business.
The undersigned has furnished its participating
Lender with a certificate of its non-U.S. person status on IRS Form
W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this
certificate, the undersigned agrees that (1) if the information provided
on this certificate changes, the undersigned shall promptly so inform such
Lender in writing, and (2) the undersigned shall have at all times
furnished such Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to
the undersigned, or in either of the two calendar years preceding such
payments.
Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them
in the Credit Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
Name:
Title:
Date: ________ __, 20[ ]
EXHIBIT C-4
[FORM OF]
U.S. TAX
CERTIFICATE
(For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit
Agreement dated as of May 6, 2016 (as amended, supplemented or otherwise
modified from time to time, the
Credit Agreement
), among Macys Inc.,
a Delaware corporation (
Parent
), Macys Retail Holdings, Inc., a New York
corporation (the
Borrower
), the Lenders from time to time party
thereto, Bank of America, N.A. and JPMorgan Chase Bank, N.A., as Administrative
Agents, and JPMorgan Chase Bank, N.A., as Paying Agent.
Pursuant to the provisions of Section 2.16
of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in
respect of which it is providing this certificate, (ii) its direct or
indirect partners/members are the sole beneficial owners of such participation,
(iii) with respect to such participation, neither the undersigned nor any of
its direct or indirect partners/members is a bank extending credit pursuant to
a loan agreement entered into in the ordinary course of its trade or business
within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of
its direct or indirect partners/members is a ten percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code,
(v) none of its direct or indirect partners/members is a controlled
foreign corporation related to the Borrower as described in
Section 881(c)(3)(C) of the Code, and (vi) the interest payments in
question are not effectively connected with the undersigneds or its direct or
indirect partners/members conduct of a U.S. trade or business.
The undersigned has furnished its participating
Lender with IRS Form W-8IMY accompanied by one of the following forms from each
of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as
applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS
Form W-8BEN-E, as applicable, from each of such partners/members beneficial
owners that is claiming the portfolio interest exemption. By executing
this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform
such Lender, and (2) the undersigned shall have at all times furnished
such Lender with a properly completed and currently effective certificate in
either the calendar year in which each payment is to be made to the
undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined
in the Credit Agreement and used herein shall have the meanings given to them
in the Credit Agreement.
[NAME OF PARTICIPANT]
By:______________________________________
Name:
Title:
Date: ________ __, 20[ ]