<page>
Published CUSIP No.:
----------
===========================================================================
$500,000,000
REVOLVING CREDIT FACILITY
Dated as of November 4, 2005
among
NORDSTROM, INC.,
as Borrower,
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
as Lenders,
BANK OF AMERICA, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK, N.A.
and
WELLS FARGO BANK, N.A.,
as Syndication Agents
and
U.S. BANK, NATIONAL ASSOCIATION
as Documentation Agent
===========================================================================
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
<page>
<table>
<caption>
TABLE OF CONTENTS
Page
<s>
<c>
<c>
ARTICLE 1
DEFINITIONS AND RELATED MATTERS
1
Section 1.1.
Definitions
1
Section 1.2.
Related Matters.
14
ARTICLE 2
AMOUNTS AND TERMS OF THE CREDIT FACILITIES
16
Section 2.1.
Revolving Loans.
16
Section 2.2.
Bid Loans.
18
Section 2.3.
Use of Proceeds.
20
Section 2.4.
Interest; Interest
Periods; Conversion/Continuation. 20
Section 2.5.
Notes, Etc.
22
Section 2.6.
Fees.
22
Section 2.7.
Termination and
Reduction of Revolving Commitments. 23
Section 2.8.
Repayments and
Prepayments.
23
Section 2.9.
Manner of Payment.
24
Section 2.10.
Pro Rata Treatment.
25
Section 2.11.
Sharing of Payments.
25
Section 2.12.
Mandatory Suspension and Conversion of Euro-Dollar
Rate Loans.
26
Section 2.13.
Regulatory Changes.
27
Section 2.14.
Compensation for Funding Losses.
27
Section 2.15.
Certificates Regarding Yield Protection, Etc.
28
Section 2.16.
Taxes.
28
Section 2.17.
Applicable Lending Office; Discretion of Lenders as
to Manner of Funding.
29
Section 2.18.
Increases in Revolving Commitment.
29
ARTICLE 3
CONDITIONS TO LOANS
30
Section 3.1.
Closing Conditions.
30
Section 3.2.
Conditions Precedent
to Loans.
31
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
32
Section 4.1.
Organization, Powers
and Good Standing.
32
Section 4.2.
Authorization, Binding
Effect, No Conflict, Etc. 32
Section 4.3.
Financial Information.
33
Section 4.4.
No Material Adverse
Changes.
33
Section 4.5.
Litigation.
33
Section 4.6.
Agreements: Applicable
Law.
33
Section 4.7.
Taxes.
33
Section 4.8.
Governmental
Regulation.
33
Section 4.9.
Margin
Regulations/Proceeds of Loans.
34
Section 4.10.
Employee Benefit Plans.
34
Section 4.11.
Disclosure.
34
Section 4.12.
Solvency.
34
Section 4.13.
Title to Properties.
34
Page i
<page>
ARTICLE 5
AFFIRMATIVE COVENANTS OF THE BORROWER
35
Section 5.1.
Financial Statements
and Other Reports.
35
Section 5.2.
Records and
Inspection.
37
Section 5.3.
Corporate Existence,
Etc.
37
Section 5.4.
Payment of Taxes and
Claims.
37
Section 5.5.
Maintenance of
Properties.
37
Section 5.6.
Maintenance of
Insurance.
38
Section 5.7.
Conduct of Business;
Compliance with Law.
38
Section 5.8.
Further Assurances.
38
Section 5.9.
Future Information.
38
ARTICLE 6
NEGATIVE COVENANTS OF THE BORROWER
39
Section 6.1.
Liens.
39
Section 6.2.
Restricted Payments.
41
Section 6.3.
Leverage Ratio.
41
Section 6.4.
Restriction on
Fundamental Changes.
41
Section 6.5.
Asset Dispositions.
42
Section 6.6.
Transactions with
Affiliates.
42
ARTICLE 7
EVENTS OF DEFAULT, ETC.
42
Section 7.1.
Events of Default.
42
Section 7.2.
Remedies.
44
Section 7.3.
Allocation of Payments
After Event of Default.
45
ARTICLE 8
THE AGENT
46
Section 8.1.
Appointment and
Authority.
46
Section 8.2.
Rights as a Lender.
46
Section 8.3.
Exculpatory
Provisions.
46
Section 8.4.
Reliance by Agent.
47
Section 8.5.
Delegation of Duties.
47
Section 8.6.
Resignation of Agent.
47
Section 8.7.
Non-Reliance on Agent
and Other Lenders.
48
Section 8.8.
No Other Duties, Etc.
48
Section 8.9.
Agent May File Proofs
of Claim.
48
ARTICLE 9
MISCELLANEOUS
49
Section 9.1.
Expenses.
49
Section 9.2.
Indemnity; Damages.
49
Section 9.3.
Amendments; Waivers;
Modifications in Writing.
50
Section 9.4.
Cumulative Remedies:
Failure or Delays.
51
Section 9.5.
Notices;
Effectiveness; Electronic Communication. 51
Section 9.6.
Successors and
Assigns; Designations.
53
Section 9.7.
Set Off.
56
Section 9.8.
Survival of
Agreements, Representations and
Warranties.
56
Section 9.9.
Execution in
Counterparts.
57
Section 9.10.
Complete Agreement.
57
Section 9.11.
Limitation of Liability.
57
Page ii
<page>
Section 9.12.
WAIVER OF TRIAL BY JURY.
57
Section 9.13.
Confidentiality.
57
Section 9.14.
Binding Effect; Continuing Agreement.
58
Section 9.15. NO
ORAL AGREEMENTS.
59
Section 9.16.
USA Patriot Act Notice.
59
</table>
Page iii
<page>
<table>
<caption>
EXHIBITS
<s>
<c>
Exhibit 2.1(c)
Form of Notice of Borrowing
Exhibit 2.1(c)(iii) Form of Notice
of Responsible Officers
Exhibit 2.2(b)(i) Form
of Bid Loan Quote Request
Exhibit 2.2(b)(ii) Form of
Bid Loan Quote
Exhibit 2.4(b)(ii) Form of
Notice of Conversion/Continuation
Exhibit 2.5(a)(i) Form of
Revolving Loan Note
Exhibit 2.5(a)(ii) Form of
Bid Loan Note
Exhibit 3.1(d)
Form of Closing Officer's Certificate
Exhibit 5.1(c)
Form of Compliance Certificate
Exhibit 9.6(b)
Form of Assignment and Assumption
SCHEDULES
Schedule 1.1(a)
Controlling Stockholders
Schedule 1.1(b)
Existing Liens
Schedule 1.1(c)
Revolving Commitments
Schedule 4.1
Organization of Borrower and Subsidiaries
Schedule 4.5
Material Litigation
Schedule 9.5
Certain Addresses for Notices
Schedule 9.6
Processing and Recordation Fees
</table>
Page iv
<page>
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT, dated as of
November 4, 2005 (as amended,
supplemented or otherwise modified from
time to time, the "Agreement"), by
and among NORDSTROM, INC., a Washington
corporation (the "Borrower"), the
banks and other financial institutions that
either now or in the future are
parties hereto (collectively the "Lenders"
and each individually a "Lender"),
JPMORGAN CHASE BANK, N.A. and WELLS FARGO
BANK, N.A., as Syndication Agents
(in such capacities, the "Syndication
Agents"), U.S. BANK, NATIONAL
ASSOCIATION, as Documentation Agent (in
such capacity, the "Documentation
Agent"), and BANK OF AMERICA, N.A., as
administrative agent for the Lenders
(in such capacity, and any successor in
such capacity, the "Agent"). The
Lenders, the Syndication Agents, the
Documentation Agent and the Agent are
collectively referred to herein as the
"Lender Parties" and each individually
as a "Lender Party."
RECITALS
WHEREAS, the Borrower has requested that
the Lenders provide a new revolving
credit facility in an aggregate amount of
$500,000,000 (the "Credit
Facility") for the purposes hereinafter set
forth;
WHEREAS, the Lenders have agreed to make
the requested Credit Facility
available to the Borrower on the terms and
conditions hereinafter set forth;
and
WHEREAS, this Agreement replaces in its
entirety the Existing Credit
Agreement.
NOW, THEREFORE, IN CONSIDERATION of the
premises and other good and valuable
consideration, the receipt and sufficiency
of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND RELATED MATTERS
Section 1.1 Definitions.
The following terms with initial capital
letters have the following meanings:
"Absolute Rate" is defined in Section
2.2(b)(iii).
"Administrative Questionnaire" means an
Administrative Questionnaire in a
form supplied by the Agent.
"Affiliate" means, with respect to any
Person, any other Person that,
directly or indirectly through one or more
intermediaries, controls, or is
controlled by, or is under common control
with, such first Person. The term
"control" means the possession, directly or
indirectly, of the power, whether
or not exercised, to direct or cause the
direction of the management or
policies of a Person, whether through the
ownership of Capital Stock, by
contract or otherwise, and the terms
"controlled" and "common control" have
correlative meanings. Unless otherwise indicated,
"Affiliate" refers to an
Affiliate of the Borrower. Notwithstanding the foregoing, in
no event shall
any Lender Party or any Affiliate of any
Lender Partly be deemed to be an
Affiliate of the Borrower. For the avoidance of doubt, the
parties agree
that, as of the date hereof, 1700 Seventh
L.P., a Washington limited
partnership, is not an Affiliate of the
Borrower.
Page 1
<page>
"Agent" means Bank of America or any
successor agent appointed in accordance
with Section 8.6.
"Agent's Account" means the account of the
Agent identified as such on
Schedule 9.5, or such other account as the
Agent may hereafter designate by
notice to the Borrower and each Lender
Party.
"Agent's Office" means the office of the
Agent identified as such on
Schedule 9.5, or such other office as the
Agent may hereafter designate by
notice to the Borrower and each Lender
Party.
"Agreement" means this Credit Agreement, as
it may be amended or modified
from time to time, including all Schedules
and Exhibits.
"Applicable Law" means all applicable
provisions of all (i) constitutions,
treaties, statutes, laws, rules,
regulations and ordinances of any
Governmental Authority, (ii) Governmental
Approvals and (iii) orders,
decisions, judgments, awards and decrees of
any Governmental Authority.
"Applicable Lending Office" means, with
respect to any Lender, (i) in the
case of any payment with respect to
Euro-Dollar Rate Loans, such Lender's
Euro-Dollar Lending Office and (ii) in the
case of any payment with respect
to Base Rate Loans or Bid Loans or any
other payment under the Loan
Documents, such Lender's Domestic Lending
Office.
"Applicable Margin" means, at any time,
with respect to Facility Fees,
Utilization Fees, or Euro-Dollar Rate
Loans, as applicable, the appropriate
applicable percentage corresponding to the
long term, senior, unsecured,
non-credit enhanced debt rating of the
Borrower in effect from time to time
as shown below:
Page 2
<page>
<table>
<caption>
<s>
<c>
<c>
<c>
<c>
Level Long Term,
Senior, Unsecured, Applicable
Applicable
Applicable
Non-Credit
Margin for
Margin for
Margin for
Enhanced Debt Rating of
Euro-Dollar Rate Facility Fees
Utilization
Borrower
Loans
Fees
================================================================================================
I.
? A+ from S&P
.175%
0.050%
.050%
or
? A1 from Moody's
------------------------------------------------------------------------------------------------
II. ? A
but < A+ from S&P
.190%
0.060%
.050
or
? A2 but < A1 from Moody's
------------------------------------------------------------------------------------------------
III. ? A- but
< A from S&P
.225%
0.075%
.100%
or
? A3 but < A2 from Moody's
------------------------------------------------------------------------------------------------
IV. ?
BBB+ but < A- from S&P
.350%
.100%
.100%
or
? Baa1 but < A3 from Moody's
------------------------------------------------------------------------------------------------
V.
? BBB from S&P
.500%
.125%
.125%
and
? Baa2 from Moody's
or
unrated by S&P and Moody's
------------------------------------------------------------------------------------------------
</table>
Notwithstanding the above, (i) if at any
time there is a split in ratings
between S&P and Moody's of one level,
the applicable percentage shall be
determined by the higher of the two ratings
(e.g. A-/Baa1 results in
Level III pricing) and (ii) if at any time
there is a split between S&P and
Moody's of two or more levels, the
applicable level shall be one level below
the higher of the S&P or Moody's rating
(e.g. A-/Baa2 results in Level IV
pricing, as does A-/Baa3).
The credit ratings to be utilized for
purposes of determining a
Level hereunder are those assigned to the
senior unsecured long-term debt of
the Borrower without third-party credit
enhancement, and any rating assigned
to any other Debt of the Borrower shall be
disregarded. The debt
rating in
effect at any date is the debt rating that
is in effect at the close of
business on such date. The Applicable Margin shall be
determined and, if
necessary, adjusted on the date (each, a
"Determination Date") on which there
is any change in the Borrower's debt
ratings. Each
Applicable Margin shall
be effective from one Determination Date
until the next Determination Date.
Any adjustment in the Applicable Margin
shall be applicable to all existing
Euro-Dollar Rate Loans as well as any new
Euro-Dollar Rate Loans made. The
Borrower shall notify the Agent in writing
immediately upon any change in its
debt ratings.
"Approved Fund" means any Fund that is
administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or
(iii) an entity or an Affiliate of
an entity that administers or manages a
Lender.
"Arranger" means Banc of America Securities
LLC, in its capacity as sole lead
arranger and sole book manager.
"Assignee Group" means two or more Eligible
Assignees that are Affiliates of
Page 3
<page>
one another or two or more Approved Funds
managed by the same investment
advisor.
"Assignment and Assumption" means an
Assignment and Assumption in the form of
Exhibit 9.6(b).
"Bank of America" means Bank of America,
N.A. or any successor thereto.
"Bankruptcy Code" means Title 11 of the
United States Code (11 U.S.C.
Section 101 et seq.), as amended, modified,
succeeded or replaced from time
to time.
"BAS" means Banc of America Securities LLC
or any successor thereto.
"Base Rate" means for any day a fluctuating
rate per annum equal to the
higher of (i) the Federal Funds Rate plus
1/2 of 1% and (ii) the rate of
interest in effect for such day as publicly
announced from time to time by
Bank of America as its "prime rate."
The "prime rate" is a
rate set by Bank
of America based upon various factors
including Bank of America's costs and
desired return, general economic conditions
and other factors, and is used as
a reference point for pricing some loans,
which may be priced at, above, or
below such announced rate. Any change in such rate announced
by Bank of
America shall take effect at the opening of
business on the day specified in
the public announcement of such change.
"Base Rate Loan" means a Revolving Loan, or
portion thereof, that bears
interest by reference to the Base Rate.
"Bid Loan" is defined in Section
2.2(a).
"Bid Loan Borrowing" is defined in Section
2.2(a).
"Bid Loan Note" means a Bid Loan Note made
by the Borrower, in substantially
the form of Exhibit 2.5(a)(ii), payable to
the order of a Lender, evidencing
the obligation of the Borrower to repay the
Bid Loans made by such Lender,
and includes any Bid Loan Note issued in
exchange or substitution therefor.
"Bid Loan Quote" is defined in Section
2.2(b)(ii).
"Bid Loan Quote Request" is defined in
Section 2.2(b)(i).
"Borrower" means Nordstrom, Inc., a
Washington corporation, and its
successors and permitted assigns.
"Borrower Account" means the account of the
Borrower identified as such on
Schedule 9.5, or such other account as the
Borrower may hereafter designate
by notice to the Agent, with the prior
consent of the Agent (such consent not
to be withheld, conditioned or delayed so
long as the designation of such
account would not prevent the Agent from
satisfying its obligations hereunder
in a timely manner).
"Borrower Materials" is defined in Section
5.1.
"Borrowing" means a contemporaneous
borrowing of Loans of the same Type.
"Business Day" means any day that (i) is
not a Saturday, Sunday or other day
on which banks in Seattle, Washington, San
Francisco, California or
Page 4
<page>
Charlotte, North Carolina are authorized or
obligated to close and (ii) if
the applicable Business Day relates to any
Euro-Dollar Rate Loans, is a Euro-
Dollar Business Day.
"Capital Stock" means, with respect to any
Person, all (i) shares, interests,
participations or other equivalents
(howsoever designated) of capital stock
and other equity or ownership interests of
such Person and (ii) rights (other
than debt securities convertible into
capital stock or other equity
interests), warrants or options to acquire
any such capital stock or other
equity interests.
"Capitalized Leases" means, as to any
Person, all leases of such Person of
real or personal property that in
accordance with GAAP are or should be
capitalized on the balance sheet of such
Persons. The amount of
any
Capitalized Lease shall be the capitalized
amount thereof as determined in
accordance with GAAP.
"Change of Control" means that (a) a
majority of the directors of the
Borrower shall be Persons other than
Persons (x) for whose election proxies
shall have been solicited by the board of
directors of the Borrower or (y)
who are then serving as directors appointed
by the board of directors to fill
vacancies on the board of directors caused
by death or resignation (but not
by removal) or to fill newly-created
directorships or (b) any "person" or
"group" (as such terms are used in Sections
13(d) of the Securities Exchange
Act of 1934), other than the Controlling
Stockholders, becomes the
"beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person
or group shall be deemed to have
"beneficial ownership" of all securities
that such person or group has the
right to acquire whether such right is
immediately exercisable or only after
the passage of time), directly or
indirectly, of Voting Stock of the Borrower
(or other securities convertible into such
Voting Stock) representing 50% or
more of the combined voting power of all
Voting Stock of the Borrower.
"Closing Date" means the date of this
Agreement.
"Code" means the Internal Revenue Code of
1986 and the rules and regulations
promulgated thereunder, as amended,
modified, succeeded or replaced from time
to time.
"Compliance Certificate" is defined in
Section 5.1(c).
"Contingent Obligation" means, as to any
Person, any obligation, direct or
indirect, contingent or otherwise, of such
Person which does or would
reasonably be expected to result in the
direct payment of money (i) with
respect to any Debt or other obligation of
another Person, including any
direct or indirect guarantee of such Debt
(other than any endorsement for
collection in the ordinary course of
business) or any other direct or
indirect obligation, by agreement or
otherwise, to purchase or repurchase any
such Debt or obligation or any security
therefor, or to provide funds for the
payment or discharge of any such Debt or
obligation (whether in the form of
loans, advances, stock purchases, capital
contributions or otherwise), (ii)
to provide funds to maintain the financial
condition of any other Person,
(iii) to lease or purchase property,
securities or services primarily for the
purpose of assuring the holders of Debt or
other obligations of another Person
or (iv) otherwise to assure or hold
harmless the holders of Debt or other
obligations of another Person against loss
in respect thereof.
The amount of
any Contingent Obligation shall be the
greater of (a) the amount of the Debt
or obligation guaranteed or otherwise
supported thereby or (b) the maximum
amount guaranteed or supported by the
Contingent Obligation.
The term
"Contingent Obligation", as used with
respect to the Borrower or any <page>
Subsidiary, shall not include (1) the
obligations of the Borrower under any
obligation which the Borrower does or may
have to sell to, repurchase from or
indemnify the purchaser or other transferee
with respect to accounts
discounted, sold or in which an interest is
otherwise transferred by the
Borrower or any Subsidiary in the ordinary
course of its business (but any
such other obligation shall be excluded
only to the extent that such other
obligation is for the benefit, directly or
indirectly, of any Person that is
Page 5
<page>
a Wholly-Owned Subsidiary (direct or
indirect) of the Borrower); or (2) any
obligation which a Subsidiary does or may
have to sell to, repurchase from or
indemnify the purchaser or other transferee
with respect to accounts
discounted, sold or in which an interest is
otherwise transferred by the
Borrower or such Subsidiary in the ordinary
course of its business (but any
such other obligation shall be excluded
only to the extent that such
obligation is for the benefit, directly or
indirectly, of any Person that is
a Wholly-Owned Subsidiary (direct or
indirect) of the Borrower); (3) supply,
service or licensing agreements between or
among the Borrower or its
Subsidiaries and any Affiliate(s), in each
case, so long as such agreements
comply with Section 6.6; (4) environmental
indemnities routinely given as
part of sale, lease or other disposition or
acquisition of real estate, or
(5) "indemnities" for attorneys' fees and
costs which are incidental to
another transaction and/or damages arising
from breach of the terms of such
transaction.
"Contractual Obligation" means, as applied
to any Person, any provision of
any security issued by that Person or of
any indenture, agreement or other
instrument to which that Person is a party
or by which it or any of the
properties owned or leased by it is bound
or otherwise subject.
"Controlled Group" means all members of a
controlled group of corporations
and all trades or businesses (irrespective
of whether incorporated) that,
together with the Borrower or any
Subsidiary, are or were treated as a single
employer under Section 414 of the Code.
"Controlling Stockholders" means the
individuals listed on Schedule 1.1(a)
hereto and the spouse and lineal
descendants of any such individual.
"Debt" means, with respect to any Person,
the aggregate amount of, without
duplication: (i) all obligations for
borrowed money (including, except as
otherwise provided in subpart (iii) below,
purchase money indebtedness) other
than, with respect to Debt of the Borrower
or any of its Subsidiaries, funds
borrowed by the Borrower or any such
Subsidiary from the Borrower or another
such Subsidiary; (ii) all obligations
evidenced by bonds, debentures, notes
or other similar instruments; (iii) all
obligations to pay the deferred
purchase price of property or services,
except trade accounts payable (which
trade payables are deemed to include any
consignment purchases) arising in
the ordinary course of business that are
not overdue; (iv) the principal
portion of all obligations under (a)
Capitalized Leases and (b) any synthetic
lease, tax retention operating lease,
off-balance sheet loan or similar
off-balance sheet financing product of such
Person where such transaction is
considered borrowed money indebtedness for
tax purposes but is classified as an
operating lease in accordance with GAAP;
(v) all obligations of third parties
secured by a Lien on any asset owned by
such Person whether or not such
obligation or liability is assumed; (vi)
all obligations of such Person,
contingent or otherwise, in respect of any
letters of credit or bankers'
acceptances; (vii) all Contingent
Obligations; (viii) the aggregate amount
paid to, or borrowed by, such Person as of
such date under a sale of
receivables or similar transaction
(regardless of whether such transaction is
effected without recourse to such Person or
in a manner that would not be
reflected on the balance sheet of such
Person in accordance with GAAP); (ix)
all Debt of any partnership or
unincorporated joint venture to the extent such
Person is legally obligated with respect
thereto; and (x) all net obligations
with respect to interest rate protection
agreements, foreign currency exchange
agreements, commodity purchase or option
agreements or other interest or
exchange rate or commodity price hedging
agreements.
"Default" means any condition or event
that, with the giving of notice or
lapse of time or both, would, unless cured
or waived, become an Event of
Default.
"Documentation Agent" means U.S. Bank,
National Association or any successor
thereto.
"Dollars" and "$" mean lawful money of the
United States of America.
"Domestic Lending Office" means the office,
branch or Affiliate of any Lender
described in such Lender's Administrative
Questionnaire as its Domestic
Lending Office or such other office, branch
or Affiliate as the Lender may
Page 6
<page>
hereafter designate as its Domestic Lending
Office for one or more Types of
Loans by notice to the Borrower and the
Agent.
"EBITDAR" means, for any period, with
respect to the Borrower and its
consolidated Subsidiaries, Net Income plus,
to the extent deducted in
determining such Net Income, the sum of (a)
Interest Expense, (b) income tax
expense, (c) depreciation expense, (d)
amortization expense and (e) Rent
Expense, in each case as determined in
accordance with GAAP.
"Eligible Assignee" means (a) a Lender; (b)
an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person
(other than a natural person)
approved by (i) the Agent, and (ii) unless
an Event of Default has occurred
and is continuing, the Borrower (each such
approval not to be unreasonably
withheld or delayed; it being understood
that it shall be reasonable for the
Borrower to withhold consent to a new
assignee Lender if as a result of such
assignment the Borrower would incur
additional costs, including without
limitation, under Sections 2.13 and 2.16,
and the assignee Lender shall
provide such information, if requested by
the Borrower, in connection with
any proposed assignment); provided that
notwithstanding the foregoing,
"Eligible Assignee" shall not include the
Borrower or any of the Borrower's
Affiliates or Subsidiaries or any
competitor of the Borrower or any affiliate
of a competitor of the Borrower or the
Borrower's Affiliates.
"ERISA" means the Employee Retirement
Income Security Act of 1974, as amended
from time to time.
"ERISA Event" means (i) (a) the occurrence
of a reportable event, within the
meaning of Section 4043(c) of ERISA, with
respect to any Plan unless the 30-
day notice requirement with respect to such
event has been waived by the PBGC
(provided that a reportable event arising
from the disqualification of a Plan
or the distress termination of a Plan under
ERISA Section 4041(c) shall be
deemed to be an ERISA Event without regard
to any waiver of notice by the
PBGC by regulation or otherwise), or (b)
the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard
to subsection (2) of such
Section) are met with respect to a
contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan,
and an event described in <page>
paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is
reasonably expected to occur with respect
to such Plan within the following
30 days; (ii) an application is filed with
the Internal Revenue Service for a
minimum funding waiver under Section 412 of
the Code with respect to a Plan;
(iii) the provision by the administrator of
a Plan of a notice of intent to
terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any
such notice with respect to a plan
amendment referred to in Section 4041(e)
of ERISA); (iv) the cessation of operations
at a facility of the Borrower or
any member of the Controlled Group in the
circumstances described in
Section 4062(e) of ERISA; (v) the
withdrawal by the Borrower or any member of
the Controlled Group from a Plan during a
plan year for which it was a
substantial employer, as defined in Section
4001(a)(2) of ERISA; (vi) the
conditions for the imposition of a lien
under Section 302(f) of ERISA shall
have been met with respect to any Plan;
(vii) the adoption of an amendment to
a Plan requiring the provision of security
to such Plan pursuant to
Section 307 of ERISA; or (viii) the
institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042
of ERISA, or the occurrence of any
event or condition described in Section
4042 of ERISA that constitutes
grounds for the termination of, or the
appointment of a trustee to
administer, a Plan.
"Euro-Dollar Business Day" means any
Business Day on which commercial banks
are open for international business
(including dealings in interbank Dollar
deposits) in London, England.
"Euro-Dollar Lending Office" means the
office, branch or Affiliate of any
Lender described in such Lender's
Administrative Questionnaire as its Euro-
Dollar Lending Office or, subject to the
terms hereof, such other office,
branch or Affiliate as such Lender may
hereafter designate as its Euro-Dollar
Page 7
<page>
Lending Office by notice to the Borrower
and the Agent.
"Euro-Dollar Rate" means, for any Interest
Period with respect to any Euro-
Dollar Rate Loan, a rate per annum
determined by the Agent to be equal to the
quotient obtained by dividing (a) the
Interbank Offered Rate for such Euro-
Dollar Rate Loan for such Interest Period
by (b) one minus the Euro-Dollar
Reserve Requirement for such Euro-Dollar
Rate Loan for such Interest Period.
"Euro-Dollar Rate Loan" means a Revolving
Loan, or portion thereof, that
bears interest at a rate determined by
reference to a Euro-Dollar Rate (and
as to which a single Interest Period is
applicable).
"Euro-Dollar Reserve Requirement" means,
for any day during any Interest
Period, the reserve percentage (expressed
as a decimal, carried out to five
decimal places) in effect on such day,
whether or not applicable to any
Lender, under regulations issued from time
to time by the Federal Reserve
Board for determining the maximum reserve
requirement (including any
emergency, supplemental or other marginal
reserve requirement) with respect
to Eurocurrency funding (currently referred
to as "Eurocurrency
liabilities"). The Euro-Dollar Rate for each
outstanding Euro-Dollar Rate
Loan shall be adjusted automatically as of
the effective date of any change
in the Euro-Dollar Reserve Requirement.
"Event of Default" means any of the events
specified in Section 7.1.
"Excluded Tax" means, with respect to any
payment to any Lender Party,
(i) any taxes imposed on or measured by the
overall net income (including a
franchise tax based on net income) of such
Lender Party by any Governmental
Authority or taxing authority thereof or
therein, and (ii) any taxes imposed
on or measured by the overall net income
(including a franchise tax based on
net income) of such Lender Party or its
Agent's Office or Applicable Lending
Office in respect of which the payment is
made, by any Governmental Authority
in the jurisdiction in which it is
incorporated, maintains its principal
executive office or in which such Agent's
Office or Applicable Lending Office
is located.
"Existing Credit Agreement" means that
certain Revolving Credit Agreement,
dated as of May 14, 2004, by and among the
Borrower, the financial
institutions party thereto as lenders
thereunder, Bank One, NA, as
syndication agent, U.S. Bank National
Association, as documentation agent,
and Bank of America, N.A., as
administrative agent for such lenders, as it
has been amended, supplemented or otherwise
modified from time to time.
"Existing Liens" means the Liens described
on Schedule 1.1(b).
"Facility Fee" is defined in Section
2.6(a).
"Federal Funds Rate" means, for any day,
the rate per annum equal to the
weighted average of the rates on overnight
federal funds transactions with
members of the Federal Reserve System
arranged by federal funds brokers on
such day, as published by the Federal
Reserve Bank of New York on the
Business Day next succeeding such day;
provided that (a) if such day is not a
Business Day, the Federal Funds Rate for
such day shall be such rate on such
transactions on the next preceding Business
Day as so published on the next
succeeding Business Day, and (b) if no such
rate is so published on such next
succeeding Business Day, the Federal Funds
Rate for such day shall be the
average rate (rounded upward, if necessary,
to a whole multiple of 1/100 of
1%) charged to Bank of America on such day
on such transactions as determined
by the Agent.
"Federal Reserve Board" means the Board of
Governors of the Federal Reserve
System, or any successor thereto.
Page 8
<page>
"Fee Letter" means that certain letter
agreement, dated as of September 16,
2005, among the Borrower, the Agent and BAS
regarding certain fees relating
to this Agreement, as the same may be
amended, supplemented or otherwise
modified in writing from time to time by
the Borrower, the Agent and BAS.
"Fees" means, collectively, the fees
defined in or referenced in Section 2.6.
"Fiscal Year" means the fiscal year of the
Borrower, which shall be the
twelve month-period ending on January 31 in
each year or such other period as
the Borrower may designate and the Agent
may approve in writing. "Fiscal
Quarter" or "fiscal quarter" means any
quarter of a Fiscal Year.
"Fund" means any Person (other than a
natural person) that is (or will be)
engaged in making, purchasing, holding or
otherwise investing in commercial
loans and similar extensions of credit in
the ordinary course of its
business.
"Funded Debt" means, with respect to the
Borrower and its Subsidiaries, on a
consolidated basis, the aggregate amount
of, without duplication: (i) all
obligations for borrowed money (including,
except as otherwise provided in
subpart (iii) below, purchase money
indebtedness) other than funds borrowed
by the Borrower or any Subsidiary from the
Borrower or another Subsidiary;
(ii) all obligations evidenced by bonds,
debentures, notes or other similar
instruments; (iii) all obligations to pay
the deferred purchase price of
property or services, except trade accounts
payable (which trade payables are
deemed to include any consignment
purchases) arising in the ordinary course
of business that are not overdue; (iv) the
principal portion of all
obligations under (a) Capitalized Leases
and (b) any synthetic lease, tax
retention operating lease, off-balance
sheet loan or similar off-balance sheet
financing product of the Borrower or any of
its Subsidiaries where such
transaction is considered borrowed money
indebtedness for tax purposes but is
classified as an operating lease in
accordance with GAAP; (v) all obligations
of others secured by a Lien on any asset
owned by the Borrower or any of its
Subsidiaries whether or not such obligation
or liability is assumed; and (vi)
the aggregate amount paid to, or borrowed
by, the Borrower or any of its
Subsidiaries as of such date under a sale
of receivables or similar transaction
(regardless of whether such transaction is
effected without recourse to the
Borrower or any of its Subsidiaries or in a
manner that would not be reflected
on the balance sheet of the Borrower or any
of its Subsidiaries in accordance
with GAAP).
"Funding Date" means any date on which a
Loan is (or is requested to be)
made.
"GAAP" means generally accepted accounting
principles as in effect in the
United States of America from time to time
and applied on a consistent basis.
"Governmental Approval" means an
authorization, consent, approval, permit or
license issued by, or a registration,
qualification or filing with, any
Governmental Authority.
"Governmental Authority" means any nation
and any state or political
subdivision thereof and any entity
exercising executive, legislative,
judicial, regulatory or administrative
functions of or pertaining to
government and any tribunal or arbitrator
of competent jurisdiction.
"Indemnitees" is defined in Section
9.2.
"Information" is defined in Section
9.13.
"Interbank Offered Rate" means, for any
Interest Period with respect to a
Euro-Dollar Rate Loan, the rate per annum
equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as
published by Reuters (or other
commercially available source providing
quotations of BBA LIBOR as designated
Page 9
<page>
by the Agent from time to time) at
approximately 11:00 a.m., London time, two
Business Days prior to the commencement of
such Interest Period, for Dollar
deposits (for delivery on the first day of
such Interest Period) with a term
equivalent to such Interest Period.
If such rate is not
available at such
time for any reason, then the "Interbank
Offered Rate" for such Interest
Period shall be the rate per annum
determined by the Agent to be the rate at
which deposits in Dollars for delivery on
the first day of such Interest
Period in same day funds in the approximate
amount of the Euro-Dollar Rate
Loan being made, continued or converted by
Bank of America and with a term
equivalent to such Interest Period would be
offered by Bank of America's
London Branch to major banks in the London
interbank eurodollar market at
their request at approximately 11:00 a.m.
(London time) two Business Days
prior to the commencement of such Interest
Period.
"Interest Expense" means the consolidated
interest expense (including the
amortization of debt discount and premium,
the interest component under
Capitalized Leases and the implied interest
component under synthetic leases,
tax retention operating leases, off-balance
sheet loans or similar
off-balance sheet financing products) of
the Borrower and its Subsidiaries,
as determined in accordance with GAAP.
"Interest Period" means, subject to the
conditions set forth below:
(i) with respect to each Euro-Dollar Rate
Loan, the period commencing on the
Funding Date specified in the related
Notice of Borrowing or Notice of
Conversion/Continuation and ending (subject
to availability to all Lenders)
one, two, three or six months thereafter,
as the Borrower may elect, as
applicable; and
(ii) with respect to any Bid Loan, the
period commencing on the Funding Date
specified in the related Bid Loan Quote
Request and ending on any Business
Day not less than seven and not more than
30 days thereafter, as the Borrower
may request as provided in Section
2.2(b)(i).
Notwithstanding the foregoing: (a) if a
Euro-Dollar Rate Loan is continued,
the Interest Period applicable to the
continued Euro-Dollar Rate Loan shall
commence on the day on which the Interest
Period applicable to such Euro-
Dollar Rate Loan ends; (b) any Interest
Period applicable to a Euro-Dollar
Rate Loan (1) that would otherwise end on a
day that is not a Business Day
shall be extended to the next succeeding
Business Day, unless such succeeding
Business Day falls in another calendar
month, in which case such Interest
Period shall end on the next preceding
Business Day or (2) that begins on the
last Business Day of a calendar month (or
on a day for which there is no
numerically corresponding day in the
calendar month at the end of such
Interest Period) shall end on the last
Business Day of the calendar month;
and (c) no Interest Period shall end after
the Maturity Date.
"Investment Agreement" means the Investment
Agreement, dated as of October 8,
1984, between the Borrower and Nordstrom
Credit, Inc., a Colorado
corporation, as amended from time to
time.
"Lender" means each of those banks and
other financial institutions
identified as such on the signature pages
hereto and such other institutions
that may become Lenders pursuant to Section
9.6(b) or Section 2.18.
"Lender Party" means each of the Lenders,
the Agent, the Syndication Agents
and the Documentation Agent.
"Leverage Ratio" is defined in Section
6.3.
Page 10
<page>
"Lien" means any lien, mortgage, pledge,
security interest, charge, or
encumbrance of any kind (including any
conditional sale or other title
retention agreement or any lease in the
nature thereof) and any agreement to
give any lien, mortgage, pledge, security
interest, charge, or other
encumbrance of any kind.
"Loan" means a Base Rate Loan, Euro-Dollar
Rate Loan or Bid Loan, each of
which constitutes a "Type" of Loan.
"Loan Documents" means, collectively, this
Agreement, the Notes, and any
other agreement, instrument or other
writing executed or delivered by the
Borrower in connection herewith, and all
amendments, exhibits and schedules
to any of the foregoing.
"Margin Regulations" means Regulations T, U
and X of the Federal Reserve
Board, as amended from time to time, or any
successor regulations.
"Margin Stock" means "margin stock" as
defined in the Margin Regulations.
"Material Adverse Effect" or "Material
Adverse Change" means (i) a material
adverse effect on or (ii) a material
adverse change in, as the case may be,
any one or more of the following: (A) the
business, assets, liabilities,
results of operations or condition
(financial or otherwise) of the Borrower
and its Subsidiaries taken as a whole or
(B) the ability of the Borrower to
perform its obligations under any Loan
Document to which it is a party or
(C) the actual material rights and remedies
of any Lender Party under any
Loan Document.
"Material Contractual Obligation" means a
Contractual Obligation, the
violation of which could reasonably be
expected to have a Material Adverse
Effect.
"Maturity Date" means November 4, 2010.
"Moody's" means Moody's Investors Service,
Inc. and any successor or assignee
of the business of such company in the
business of rating debt.
"Multiemployer Plan" means a multiemployer
plan, as defined in
Section 4001(a)(3) of ERISA.
"Net Income" means, for any period with
respect to the Borrower and its
consolidated Subsidiaries, net income (or
net loss), excluding the effect of
extraordinary or other non-recurring gains
and losses, as determined in
accordance with GAAP.
"Note" means a Revolving Loan Note or Bid
Loan Note.
"Notice of Borrowing" is defined in Section
2.1(c)(i).
"Notice of Conversion/Continuation" is
defined in Section 2.4(b)(ii).
"Notice of Responsible Officers" is defined
in Section 2.1(c)(iii).
"Obligations" means all present and future
obligations and liabilities of the
Borrower of every type and description
arising under or in connection with
the Loan Documents due or to become due to
the Lender Parties or any Person
entitled to indemnification under the Loan
Documents, or any of their
respective successors, transferees or
assigns, whether for principal,
interest, Fees, expenses, indemnities or
other amounts (including attorneys'
fees and expenses) and whether due or not
due, direct or indirect, joint
Page 11
<page>
and/or several, absolute or contingent,
voluntary, or involuntary, liquidated
or unliquidated, determined or
undetermined, and whether now or hereafter
existing, renewed or restructured.
"Participant" is defined in Section
9.6(d).
"PBGC" means the Pension Benefit Guaranty
Corporation, as defined in Title IV
of ERISA, or any successor.
"Permitted Liens" means, with respect to
any asset, the Liens (if any)
permitted to exist on such asset in
accordance with Section 6.1.
"Person" means an individual, a
corporation, a partnership, a limited
liability company, a trust, an
unincorporated organization or any other
entity or organization, including a
government or any agency or political
subdivision thereof.
"Plan" means, at any time, any employee
pension benefit plan that is covered
by Title IV of ERISA or subject to the
minimum funding standards under
Section 412 of the Code and that is either
(i) maintained by the Borrower or
any member of a Controlled Group for
employees of the Borrower or such
Controlled Group or was formerly so
maintained and in respect of which the
Borrower or any member of the Controlled
Group could have liability under
Section 4069 of ERISA in the event such
plan has been or were to be
terminated or (ii) maintained for employees
of the Borrower or any member of
the Controlled Group and at least one
Person other than the Borrower and the
members of the Controlled Group or was
formerly so maintained and in respect
of which the Borrower or any member of the
Controlled Group could have
liability under Section 4064 or 4069 of
ERISA in the event such plan has been
or were to be terminated.
"Platform" is defined in Section 5.1.
"Post-Default Rate" means (i) with respect
to all Base Rate Loans and any
other amounts (other than then outstanding
Euro-Dollar Rate Loans) owing
hereunder not paid when due, a rate per
annum equal at all times to the rate
otherwise applicable to Base Rate Loans
plus 2.00% per annum, and (ii) with
respect to each then outstanding
Euro-Dollar Rate Loan, a rate per annum
equal at all times to the rate otherwise
applicable to such Euro-Dollar Rate
Loan plus 2.00% per annum.
"Recourse Agreement" means the Recourse
Agreement, dated as of March 1, 2001,
between the Borrower and Nordstrom Credit,
Inc., a Colorado corporation, for
the benefit of Nordstrom fsb, a federal
savings bank, as amended from time to
time.
"Regulation D" means Regulation D of the
Federal Reserve Board, as amended
from time to time.
"Regulatory Change" means (i) the adoption
or becoming effective after the
date hereof of any treaty, law, rule or
regulation, (ii) any change in any
such treaty, law, rule or regulation
(including Regulation D), or any change
in the administration or enforcement
thereof, by any Governmental Authority,
central bank or other monetary, authority
charged with the interpretation or
administration thereof, in each case after
the date hereof, or
(iii) compliance after the date hereof by
any Lender Party (or its Applicable
Lending Office or, in the case of capital
adequacy requirements, any holding
company of any Lender Party) with any
interpretation, directive, request,
order or decree (whether or not having the
force of law) of any such
Governmental Authority, central bank or
other monetary authority.
"Related Parties" means, with respect to
any Person, such Person's Affiliates
Page 12
<page>
and the partners, directors, officers,
employees, agents and advisors of such
Person and of such Person's Affiliates.
"Rent Expense" means the consolidated rent
expense of the Borrower and its
Subsidiaries, as determined in accordance
with GAAP.
"Required Lenders" means Lenders having
more than 50% of the Revolving
Commitments or, if the Revolving
Commitments have terminated, Lenders holding
more than 50% of the aggregate unpaid
principal amount of the Loans.
"Responsible Officer" is defined in Section
2.1(c)(iii).
"Restricted Payment" means (i) any dividend
or other distribution, direct or
indirect, on account of any Capital Stock
of the Borrower or any Subsidiary
now or hereafter outstanding, except (a) a
dividend or other distribution
payable solely in shares or equivalents of
Capital Stock of the same class as
the Capital Stock on account of which the
dividend or distribution is being
paid or made and (b) the issuance of equity
interests upon the exercise of
outstanding warrants, options or other
rights, or (ii) any redemption,
retirement, sinking fund or similar
payment, purchase or other acquisition
for value, direct or indirect, of any
Capital Stock of the Borrower or any
Subsidiary now or hereafter
outstanding.
"Revolving Commitment" means, with respect
to each Lender, the amount set
forth for such Lender on Schedule 1.1(c) or
as set forth in the Assignment
and Assumption or in any other
documentation described in Section 2.18
pursuant to which such Lender becomes a
party hereto, in each case, as
modified or terminated from time to time
pursuant to the terms hereof.
"Revolving Commitment Percentage" means,
for each Lender, the percentage
identified on Schedule 1.1(c) opposite such
Lender's name or as set forth in
the Assignment and Assumption or in any
other documentation described in
Section 2.18 pursuant to which such Lender
becomes a party hereto, in each
case, as such percentage may be modified in
accordance with the terms hereof.
"Revolving Commitment Termination Date" is
defined in Section 2.7(a).
"Revolving Committed Amount" means FIVE
HUNDRED MILLION DOLLARS
($500,000,000), as such amount may be
reduced in accordance with Section 2.7
or increased in accordance with Section
2.18.
"Revolving Loan Note" means a Revolving
Loan Note made by the Borrower, in
substantially in the form of Exhibit
2.5(a)(i), payable to the order of a
Lender, evidencing the obligation of the
Borrower to repay the Revolving
Loans made by such Lender and includes any
Revolving Loan Note issued in
exchange or substitution therefor.
"Revolving Loans" is defined in Section
2.1(a)(i).
"S&P" means Standard & Poor's
Ratings Services, a division of The McGraw-Hill
Companies, Inc., or any successor or
assignee of the business of such
division in the business of rating
debt.
"SEC" means the United States Securities
and Exchange Commission, and any
successor thereto.
"Senior Officer" means, with respect to the
Borrower, the chairman of the
board of directors, the president, the
chief executive officer, the chief
operating officer, the chief financial
officer, or the vice president and
treasurer of the Borrower.
Page 13
<page>
"Solvent" and "Solvency" mean, with respect
to any Person as of a particular
date, that on such date (i) such Person is
able to pay its debts and other
liabilities, contingent obligations and
other commitments as they mature in the
normal course of business, (ii) such Person
does not intend to, and does not
believe that it will, incur debts or
liabilities beyond such Person's ability
to pay as such debts and liabilities mature
in their ordinary course,
(iii) such Person is not engaged in a
business or a transaction, and is not
about to engage in a business or a
transaction, for which such Person's assets
would constitute unreasonably small capital
after giving due consideration to
the prevailing practice in the industry in
which such Person is engaged or is
about to engage, (iv) the fair value of the
assets of such Person is greater
than the total amount of liabilities,
including, without limitation, contingent
liabilities, of such Person and (v) the
present fair saleable value of the
assets of such Person is not less than the
amount that will be required to pay
the probable liability of such Person on
its debts as they become absolute and
matured. In computing the amount of
contingent liabilities at any time, it is
intended that such liabilities will be
computed at the amount which, in light
of all the facts and circumstances existing
at such time, represents the amount
that can reasonably be expected to become
an actual or matured liability.
"Subsidiary" means, with respect to any
Person, any other Person of which
more than 50% of the Voting Stock is at the
time directly or indirectly owned
by such first Person. Unless otherwise indicated,
"Subsidiary" refers to a
Subsidiary of the Borrower.
"Support Letter" means that certain letter
from the Borrower to Nordstrom
fsb, a federal savings bank, dated as of
June 17, 2004 affirming the
Borrower's commitment to provide adequate
funding to allow Nordstrom fsb to
meet its obligations, as amended by a
letter dated June 2005, and as further
amended from time to time.
"Syndication Agents" means JPMorgan Chase
Bank, N.A. and Wells Fargo Bank,
N.A., or any successors thereto.
"Taxes" means any income, stamp, excise,
property and other taxes, charges,
fees, levies, duties, imposts, withholdings
or other assessments, together
with any interest and penalties, additions
to tax and additional amounts
imposed by any federal, state, local or
foreign taxing authority upon any
Person.
"Type" is defined in the definition of
"Loan."
"Utilization Fee" is defined in Section
2.6(b).
"Voting Stock" means Capital Stock issued
by a corporation, or equivalent
interests in any other Person, the holders
of which are ordinarily, in the
absence of contingencies, entitled to vote
for the election of directors (or
persons performing similar functions) of
such Person, even though the right
to so vote has been suspended by the
happening of such a contingency.
"Wholly-Owned" means, with respect to any
Subsidiary, that all the Capital
Stock (except for directors' qualifying
shares) of such Subsidiary are
directly or indirectly owned by the
Borrower.
Section 1.2. Related
Matters.
(a) Construction. Unless the context of this
Agreement clearly requires
otherwise, references to the plural include
the singular, the singular
includes the plural, the part includes the
whole, "including" is not
limiting, and "or" has the inclusive
meaning represented by the phrase
"and/or." The words "hereof," "hereto,"
"hereby," "hereunder" and similar
terms in this Agreement refer to this
Agreement as a whole (including the
Preamble, the Recitals, the Schedules and
the Exhibits) and not to any
particular provision of this Agreement.
References in this
Agreement to
"Articles," "Sections," "Subsections,"
"Exhibits," "Schedules," "Recitals"
and "Preambles" are to this Agreement
unless otherwise specified. References
in this Agreement to any agreement, other
document or law "as amended" or "as
amended from time to time," or to
amendments of any document or law, shall
include any amendments, supplements,
replacements, renewals, waivers or other
modifications. References in this Agreement to
any law (or any part thereof)
Page 14
<page>
include any rules and regulations
promulgated thereunder (or with respect to
such part) by the relevant Governmental
Authority, as amended from time to
time.
(b) Determinations. Any determination or calculation
contemplated by this
Agreement that is made by any Lender Party
in good faith and reasonably shall
be final and conclusive and binding upon
the Borrower and, in the case of
determinations by the Agent, also the other
Lender Parties, in the absence of
manifest error. All consents and other actions of
any Lender Party
contemplated by this Agreement may be
given, taken, withheld or not taken in
such Lender Party's discretion (whether or
not so expressed), except as
otherwise expressly provided herein.
(c) Accounting Terms and Determinations.
Unless otherwise
specified herein,
all accounting terms used herein shall be
interpreted, all accounting
determinations hereunder shall be made, and
all financial statements required
to be delivered hereunder shall be prepared
on a consolidated basis in
accordance with GAAP. In the event that any
"Accounting Change" (as defined
below) shall occur and such change results
in a material change in the
resulting financial covenants, standards or
terms in this Agreement, then the
Borrower and the Lender Parties agree to
enter into negotiations in order to
amend such provisions of this Agreement so
as to equitably reflect such
Accounting Changes with the desired result
that the criteria for evaluating
the Borrower's financial condition shall be
the same after such Accounting
Changes as they would be if such Accounting
Changes had not been made. Until
such time as such an amendment shall have
been executed and delivered by the
Borrower, the Agent and the Required
Lenders, all financial covenants,
standards and terms in this Agreement shall
continue to be calculated or
construed as if such Accounting Changes had
not occurred.
"Accounting
Changes" refers to changes in accounting
principles required by the
promulgation of any rule, regulation,
pronouncement or opinion by the
Financial Accounting Standards Board of the
American Institute of Certified
Public Accountants or, if applicable, the
SEC or any regulator of financial
institutions or financial institution
holding companies.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS (OTHER THAN THE
RULES REGARDING CONFLICTS OF LAWS)
OF THE STATE OF WASHINGTON.
(e) Headings. The Article and Section headings
used in this Agreement are
for convenience of reference only and shall
not affect the construction
hereof.
(f) Severability. If any provision of this Agreement
shall be held to be
invalid, illegal or unenforceable under
Applicable Law in any jurisdiction,
such provision shall be ineffective only to
the extent of such invalidity,
illegality or unenforceability, which shall
not affect any other provisions
hereof or the validity, legality or
enforceability of such provision in any
other jurisdiction.
(g) Time. All references to time herein
shall be references to Pacific
Standard Time or Pacific Daylight Time, as
the case may be, unless specified
otherwise.
Page 15
<page>
ARTICLE 2
AMOUNTS AND TERMS OF THE CREDIT
FACILITIES
Section 2.1. Revolving Loans.
(a) General Terms.
(i) Each Lender severally agrees, upon the
terms and subject to the
conditions set forth in this Agreement, at
any time from and after the
Closing Date until the Business Day next
preceding the Revolving Commitment
Termination Date, to make revolving loans
(each a "Revolving Loan") to the
Borrower; provided that (A) the sum of all
Revolving Loans outstanding plus
all Bid Loans outstanding shall not exceed
the Revolving Committed Amount and
(B) with respect to each individual Lender,
such Lender's pro rata share of
outstanding Revolving Loans shall not
exceed such Lender's Revolving
Commitment Percentage of the Revolving
Committed Amount.
(ii) Revolving Loans may be voluntarily
prepaid pursuant to Section 2.8(c)
and, subject to the provisions of this
Agreement, any amounts so prepaid or
otherwise repaid in accordance with their
terms may be re-borrowed, up to the
amount available under this Section 2.1 at
the time of such reborrowing.
(b) Type of Loans and Amounts.
(i) Loans made under this Section 2.1 may
be Base Rate Loans or Euro-Dollar
Rate Loans, subject, however, to Sections
2.4(c) and 2.12.
(ii) Each Borrowing of Revolving Loans
shall be in a minimum aggregate amount
of $1,000,000 and integral multiples of
$100,000 in excess thereof, in the
case of a Borrowing of Base Rate Loans, or
a minimum aggregate amount of
$5,000,000 and integral multiples of
$1,000,000 in excess thereof, in the
case of a Borrowing of Euro-Dollar Rate
Loans.
(c) Notice of Borrowing.
(i) When the Borrower desires to borrow
Revolving Loans pursuant to this
Section 2.1, it shall provide telephonic
notice to the Agent followed
promptly by a written Notice of Borrowing
substantially in the form of <page>
Exhibit 2.1(c), duly completed and executed
by a Responsible Officer (a
"Notice of Borrowing"), (A) no later than
10:00 a.m. on the proposed Funding
Date, in the case of a Borrowing of Base
Rate Loans, or (B) no later than
10:00 a.m. at least three Euro-Dollar
Business Days before the proposed
Funding Date, in the case of a Borrowing of
Euro-Dollar Rate Loans.
(ii) No Lender Party shall incur any
liability to the Borrower or the other
Lender Parties in acting upon any
telephonic notice that such Lender Party
believes to have been given by a
Responsible Officer or for otherwise acting
in good faith under this Section 2.1 and in
making any Loan in accordance
with this Agreement pursuant to any
telephonic notice and, upon funding of
Revolving Loans by any Lender in accordance
with this Agreement pursuant to
any such telephonic notice, the Borrower
shall have effected Revolving Loans
hereunder.
(iii) The Borrower shall notify the Agent
of the names of its officers and
employees authorized to request and take
other actions with respect to Loans
on behalf of the Borrower (each a
"Responsible Officer") by providing the
Page 16
<page>
Agent with a Notice of Responsible Officers
substantially in the form of
Exhibit 2.1(c)(iii), duly completed and
executed by a Senior Officer (a
"Notice of Responsible Officers").
The Agent shall be
entitled to rely
conclusively on a Responsible Officer's
authority to request and take other
actions with respect to Loans on behalf of
the Borrower until the Agent
receives a new Notice of Responsible
Officers that no longer designates such
Person as a Responsible Officer.
(iv) Any Notice of Borrowing (or telephonic
notice) delivered pursuant to
this Section 2.1 shall be irrevocable and,
subject to Section 2.12(a), the
Borrower shall be bound to make a Borrowing
in accordance therewith.
(v) The Agent shall promptly notify each
Lender of the contents of any Notice
of Borrowing (or telephonic notice)
received by it, and such Lender's pro
rata portion of the Borrowing requested.
Prior to 11:00 a.m. on
the date
specified in such notice as the Funding
Date, each Lender, subject to the
terms and conditions hereof, shall make its
pro rata portion of the Borrowing
available, in Dollars and in immediately
available funds, to the Agent at the
Agent's Account.
(d) Funding. Not later than 1:00 p.m. on the
applicable Funding Date or such
later time as may be agreed to by the
Borrower and the Agent, and subject to
and upon satisfaction of the applicable
conditions set forth in Article 3 as
determined by the Agent, the Agent shall,
upon receipt of the proceeds of the
requested Loans, make such proceeds
available to the Borrower in Dollars in
immediately available funds in the Borrower
Account.
(e) Several Obligations; Funding by
Lenders; Presumption by Agent. The
obligations of the Lenders hereunder to
make Revolving Loans and to make
payments pursuant to Section 9.2(b) are
several and not joint.
The failure
of any Lender to make any Revolving Loan,
to fund any such participation or
to make any payment under Section 9.2(b) on
any date required hereunder shall
not relieve any other Lender of its
corresponding obligation to do so on such
date, and no Lender shall be responsible
for the failure of any other Lender
to so make its Revolving Loan, to purchase
its participation or to make its
payment under Section 9.2(b). Unless the Agent shall have
received notice
from a Lender prior to the proposed date of
any borrowing of Euro-Dollar Rate
Loans (or, in the case of any borrowing of
Base Rate Loans, prior to 11:00
a.m. on the date of such borrowing) that
such Lender will not make available
to the Agent such Lender's share of such
Revolving Loan, the Agent may assume
that such Lender has made such share
available on such date in accordance
with Section 2.1(c) (or, in the case of a
borrowing of Base Rate Loans, that
such Lender has made such share available
in accordance with and at the time
required by Section 2.1(c)) 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
Agent, then the applicable Lender agrees to
pay to the Agent forthwith on
demand such corresponding amount in
immediately available funds with interest
thereon, for each day from and including
the date such amount it made
available to the Borrower to but excluding
the date of payment to the Agent
at the greater of the Federal Funds Rate
and a rate determined by the Agent
in accordance with banking industry rules
on interbank compensation. If such
Lender has not paid such amount to the
Agent within two Business Days
following the Agent's demand therefore,
then the Borrower agrees to pay to
the Agent forthwith on demand such
corresponding amount in immediately
available funds 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 Agent at the interest
rate applicable to the Base Rate
Loans. If the Borrower and such Lender
shall pay interest to the Agent for
the same or an overlapping period, the
Administrative Agent shall promptly
remit to the Borrower the amount of such
interest paid by the Borrower for
Page 17
<page>
such period. If such Lender pays its share of
the applicable Revolving Loan
to the Agent, then the amount so paid shall
constitute such Lender's
Revolving Loan included in such borrowing.
Any payment by the
Borrower shall
be without prejudice to any claim the
Borrower may have against a Lender that
shall have failed to make such payment to
the Agent. A notice of
the
Administrative Agent to any Lender or the
Borrower with respect to any amount
owing under this subsection (e) shall be
conclusive, absent manifest error.
Section 2.2. Bid Loans.
(a) General Terms. At any time prior to the Business
Day immediately
preceding the Revolving Commitment
Termination Date, the Borrower may request
the Lenders to make offers to make bid
loans to the Borrower (each a "Bid
Loan"); provided that (i) the sum of all
Bid Loans outstanding plus all
Revolving Loans outstanding shall not
exceed the Revolving Committed Amount;
(ii) the aggregate amount of Bid Loans
requested for any Funding Date and
with the same Interest Period (each a "Bid
Loan Borrowing") shall be at least
$2,000,000 and in integral multiples of
$1,000,000 in excess thereof; and
(iii) all Interest Periods applicable to
Bid Loans shall be subject to
Section 2.4(c). The Lenders may, but shall have no
obligation to, make such
offers, and the Borrower may, but shall
have no obligation to, accept any
such offers in the manner set forth in this
Section 2.2.
(b) Bid Loan Procedures.
(i) When the Borrower wishes to request
offers to make Bid Loans, it shall
provide telephonic notice to the Agent
(which shall promptly notify the
Lenders) followed promptly by written
notice substantially in the form of
Exhibit 2.2(b)(i), duly completed and
executed by a Responsible Officer (a
"Bid Loan Quote Request"), so as to be
received no later than 10:00 a.m. on
the second Business Day before the proposed
Funding Date (or such other time
and date as the Borrower and the Agent,
with the consent of the Required
Lenders, may agree). Subject to Section 2.4(c), the
Borrower may request
offers for up to three different Bid Loan
Borrowings in a single Bid Loan
Quote Request, in which case such Bid Loan
Quote Request shall be deemed a
separate Bid Loan Quote Request for each
such Borrowing. Except
as otherwise
provided in this Section 2.2, no Bid Loan
Quote Request shall be given within
five Business Days (or such other number of
days as the Borrower and the
Agent, with the consent of the Required
Lenders, may agree) of any other Bid
Loan Quote Request.
(ii) Each Lender may, but shall not be
obligated to, in response to any Bid
Loan Quote Request submit one or more
written quotes substantially in the
form of Exhibit 2.2(b)(ii), duly completed
(each a "Bid Loan Quote"), each
containing an offer to make a Bid Loan for
the Interest Period requested and
setting forth the Absolute Rate to be
applicable to the Bid Loan; provided
that (A) a Lender may make a single
submission containing one or more Bid
Loan Quotes in response to several Bid Loan
Quote Requests given at the same
time; and (B) the principal amount of the
Bid Loan for which each such offer
is being made shall be at least $2,000,000
and multiples of $l,000,000 in
excess thereof; provided that the aggregate
principal amount of all Bid Loans
for which a Lender submits Bid Loan Quotes
(1) may be greater or less than
the Revolving Commitment of such Lender but
(2) may not exceed the principal
amount of the Bid Loan Borrowing for which
offers were requested.
Each Bid
Loan Quote by a Lender other than the Agent
must be submitted to the Agent by
fax not later than 8:00 a.m. on the Funding
Date (or such other time and date
as the Borrower and the Agent, with the
consent of the Required Lenders, may
agree); provided that any Bid Loan Quote
may be submitted by the Agent, in
Page 18
<page>
its capacity as a Lender, (or its
Applicable Lending Office) only if the
Agent (or such Applicable Lending Office)
notifies the Borrower of the terms
of the offer contained therein not later
than 7:45 a.m. on the Funding Date.
Subject to Sections 3 and 7.2, any Bid Loan
Quote so made shall be
irrevocable except with the consent of the
Agent given on the instructions of
the Borrower. Unless otherwise agreed by the
Agent and the Borrower, no Bid
Loan Quote shall contain qualifying,
conditional or similar language or
propose terms other than or in addition to
those set forth in the applicable
Bid Loan Quote Request and, in particular,
no Bid Loan Quote may be
conditioned upon acceptance by the Borrower
of all (or some specified
minimum) of the principal amount of the Bid
Loan for which such Bid Loan
Quote is being made.
(iii) The Agent shall, as promptly as
practicable after any Bid Loan Quote is
submitted (but in any event not later than
8:30 a.m. on the Funding Date, or
7:45 a.m. on the Funding Date with respect
to any Bid Loan Quote submitted by
the Agent, in its capacity as a Lender, (or
its Applicable Lending Office)),
notify the Borrower of the terms (A) of any
Bid Loan Quote submitted by a
Lender that is in accordance with Section
2.2(b)(ii) and (B) of any Bid Loan
Quote that amends, modifies or is otherwise
inconsistent with a previous Bid
Loan Quote submitted by such Lender with
respect to the same Bid Loan Quote
Request. Any subsequent Bid Loan Quote
shall be disregarded by the Agent
unless the subsequent Bid Loan Quote is
submitted solely to correct a
manifest error in a former Bid Loan Quote.
The Agent's notice to
the
Borrower shall specify (1) the aggregate
principal amount of the Bid Loan
Borrowing for which offers have been
received and (2) (A) the respective
principal amounts and (B) the rates of
interest (which shall be expressed as
an absolute number and not in terms of a
specified margin over the quoting
Lender's cost of funds) (the "Absolute
Rate") so offered by each Lender
(identifying the Lender that made each such
Bid Loan Quote).
(iv) Not later than 9:00 a.m. on the
Funding Date (or such other time and
date as the Borrower and the Agent, with
the consent of each Lender that has
submitted a Bid Loan Quote may agree), the
Borrower shall notify the Agent of
its acceptance or nonacceptance of the
offers so notified to it pursuant to
Section 2.2(b)(iii) (and the failure of the
Borrower to give such notice by
such time shall constitute nonacceptance),
and the Agent shall promptly
notify each affected Lender. In the case of acceptance, such
notice shall
specify the aggregate principal amount of
offers for each Interest Period
that are accepted. The Borrower may accept any Bid
Loan Quote in whole or in
part; provided that (A) any Bid Loan Quote
accepted in part shall be at least
$1,000,000 and multiples of $1,000,000 in
excess thereof; (B) the aggregate
principal amount of each Bid Loan Borrowing
may not exceed the applicable
amount set forth in the related Bid Loan
Quote Request; (C) the aggregate
principal amount of each Bid Loan Borrowing
shall be at least $2,000,000 and
multiples of $1,000,000 and shall not cause
the limits specified in
Section 2.2(a) to be violated; (D)
acceptance of offers may be made only in
ascending order of Absolute Rates,
beginning with the lowest rate so offered;
and (E) the Borrower may not accept any
offer where the Agent has advised the
Borrower that such offer fails to comply
with Section 2.2(b)(ii) or otherwise
fails to comply with the requirements of
this Agreement (including
Section 2.2(a)). If offers are made by two or more
Lenders with the same
Absolute Rates for a greater aggregate
principal amount than the amount in
respect of which offers are accepted for
the related Interest Period, the
principal amount of Bid Loans in respect of
which such offers are accepted
shall be allocated by the Borrower among
such Lenders as nearly as possible
(in amounts of at least $1,000,000 and
multiples of $500,000 in excess
thereof) in proportion to the aggregate
principal amount of such offers.
Determinations by the Borrower of the
amounts of Bid Loans shall be
Page 20
<page>
conclusive in the absence of manifest
error.
(v) Subject to the terms set forth in this
Agreement, any Lender whose offer
to make any Bid Loan has been accepted
shall, prior to 10:00 a.m. on the date
specified for the making of such Loan, make
the amount of such Loan available
to the Agent at the Agent's Account in
immediately available funds, for the
account of the Borrower. The amount so received by the
Agent shall, subject
to the terms and conditions of this
Agreement, be made available to the
Borrower on or before 11:00 a.m. on such
date by depositing the same, in
immediately available funds, in the
Borrower Account.
Section 2.3. Use of Proceeds.
The proceeds of the Loans shall be used by
the Borrower only for working
capital, capital expenditures and other
lawful general corporate purposes of
the Borrower and its Subsidiaries,
including (a) loans made by the Borrower
to its Subsidiaries and (b) the payment of
commercial paper. No
part of the
proceeds of the Loans shall be used
directly or indirectly for the purpose,
whether immediate, incidental or ultimate,
of purchasing or carrying any
Margin Stock or maintaining or extending
credit to others for such purpose or
for any other purpose that otherwise
violates the Margin Regulations.
Notwithstanding the foregoing, the proceeds
of the Loans shall not be used to
finance any acquisition of all or
substantially all of the Capital Stock of
another Person unless the board of
directors (or other comparable governing
body) of such Person has duly approved such
acquisition.
Section 2.4. Interest; Interest Periods;
Conversion/Continuation.
(a) Interest Rate and Payment.
(i) Each Loan shall bear interest on the
unpaid principal amount thereof,
from and including the date of the making
of such Loan to and excluding the
due date or the date of any repayment
thereof, at the following rates per
annum: (A) for so long as and to the extent
that such Loan is a Base Rate
Loan, at the Base Rate; (B) for so long as
and to the extent that such Loan
is a Euro-Dollar Rate Loan, at the
Euro-Dollar Rate for each Interest Period
applicable thereto plus the Applicable
Margin; and (C) if such Loan is a Bid
Loan, at the Absolute Rate quoted by the
Lender making such Bid Loan pursuant
to Section 2.2(b)(ii).
(ii) Notwithstanding the foregoing
provisions of this Section 2.4(a),
(A) during the existence of an Event of
Default pursuant to
Section 7.1(a)(i), such overdue principal
shall bear interest at a rate per
annum equal to the Post-Default Rate,
without notice or demand of any kind
and (B) during the existence of any Event
of Default (other than pursuant to
Section 7.1(a)(i)), any principal, overdue
interest or other amount payable
under this Agreement and the other Loan
Documents shall, at the request of
the Required Lenders, bear interest at a
rate per annum equal to the Post-
Default Rate.
(iii) Accrued interest shall be payable in
arrears (A) in the case of a Base
Rate Loan, on the last Business Day of each
month; (B) in the case of a Euro-
Dollar Rate Loan, on the last day of each
Interest Period applicable thereto;
provided that if the Interest Period
applicable to a Euro-Dollar Rate Loan is
longer than three months, interest also
shall be payable on the last day of
the third month of such Interest Period;
(C) in the case of a Bid Loan, on
the last day of the Interest Period
applicable thereto; and (D) in the case
of any Loan, when the Loan shall become
due, whether by reason of maturity,
mandatory prepayment, acceleration or
otherwise. The Agent
shall provide a
Page 20
<page>
billing to the Borrower setting forth the
amount of interest payable in
sufficient time for the Borrower to make
timely payments of the correct
amount without incurring any penalty or
interest at the Post-Default Rate.
(b) Conversion or Continuation of Revolving
Loans.
(i) Subject to this Section 2.4(b) and
Sections 2.4(c) and 2.14, the Borrower
shall have the option (A) at any time, to
convert all or any part of its
outstanding Base Rate Loans to Euro-Dollar
Rate Loans, and (B) on the last
day of the Interest Period applicable
thereto, to (1) convert all or any part
of its outstanding Euro-Dollar Rate Loans
to Base Rate Loans, or (2) to
continue all or any part of its Euro-Dollar
Rate Loans as Loans of the same
Type; provided that, in the case of clause
(A) or (B) (2), there does not
exist a Default or an Event of Default at
such time. If a
Default or an
Event of Default shall exist upon the
expiration of the Interest Period
applicable to any Euro-Dollar Rate Loan,
such Euro-Dollar Rate Loan
automatically shall be converted into a
Base Rate Loan.
(ii) If the Borrower elects to convert or
continue a Revolving Loan under
this Section 2.4(b), it shall provide
telephonic notice to the Agent (which
shall promptly notify, the Lenders)
followed promptly by a written Notice of
Conversion/Continuation substantially in
the form of Exhibit 2.4(b)(ii), duly
completed and executed by a Responsible
Officer (a "Notice of
Continuation/Conversion") (A) not later
than 10:00 a.m. at least three
Euro-Dollar Business Days before the
proposed conversion or continuation
date, if the Borrower proposes to convert
into, or to continue, a Euro-Dollar
Rate Loan, and (B) otherwise not later than
10:00 a.m. on the Business Day
next preceding the proposed conversion or
continuation date.
(iii) No Lender Party shall incur any
liability to the Borrower or any other
Lender Party in acting upon any telephonic
notice that such Lender Party
believes to have been given by a
Responsible Officer or for otherwise acting
in good faith under this Section 2.4(b) in
converting or continuing any Loan
(or a part thereof) pursuant to any
telephonic notice.
(iv) Any Notice of Conversion/Continuation
(or telephonic notice) shall be
irrevocable and the Borrower shall be bound
to convert or continue in
accordance therewith. If any request for the conversion
or continuation of a
Loan is not made in accordance with this
Section 2.4(b), or if no notice is
so given with respect to a Euro-Dollar Rate
Loan as to which the Interest
Period expires, then such Euro-Dollar Rate
Loan automatically shall be
converted into a Base Rate Loan.
(v) Bid Loans may not be continued or
converted but instead must be repaid in
full at the end of the applicable Interest
Period.
(c) Interest Periods and Minimum Amounts.
Notwithstanding
anything herein to
the contrary, (i) all Interest Periods
applicable to Euro-Dollar Rate Loans
and Bid Loans shall comply with the
definition of "Interest Period," and (ii)
there may be no more than ten different
Interest Periods for all Euro-Dollar
Rate Loans and Bid Loans outstanding at any
one time. For purposes
of the
foregoing clause (ii), Interest Periods
applicable to Loans of different
Types shall constitute different Interest
Periods even if they are
coterminous.
Page 21
<page>
(d) Computations. Interest on each Loan and all Fees
and other amounts
payable hereunder or under the other Loan
Documents shall be computed on the
basis of a 360-day year or, in the case of
interest on Base Rate Loans that
are based upon the "prime rate" (as defined
in the definition of Base Rate),
a 365 or 366-day year, as the case may be,
for the actual number of days
elapsed including the first day but
excluding the last day on which such Loan
is outstanding (it being understood and
agreed that if a Loan is borrowed and
repaid on the same day, one day's interest
shall be payable with respect to
such Loan). Any change in the interest rate on
any Loan or other amount
resulting from a change in the rate
applicable thereto (or any component
thereof, including the Applicable Margin)
pursuant to the terms hereof shall
become effective as of the opening of
business on the day on which such
change in the applicable rate (or
component) shall become effective. Each
determination of an interest rate by the
Agent pursuant to any provision of
this Agreement shall be conclusive and
binding on all parties for all
purposes, in the absence of manifest
error.
(e) Maximum Lawful Rate of Interest.
The rate of interest
payable on any
Loan or other amount shall in no event
exceed the maximum rate of non-
usurious interest permissible under
Applicable Law. If the
rate of interest
payable on any Loan or other amount is ever
reduced as a result of this
Section 2.4(e) and at any time thereafter
the maximum rate permitted by
Applicable Law shall exceed the rate of
interest provided for in this
Agreement, then the rate provided for in
this Agreement shall be increased to
the maximum rate provided by Applicable Law
for such period as is required so
that the total amount of interest received
by the Lenders is that which would
have been received by the Lenders but for
the operation of the first sentence
of this Section 2.4(e).
Section 2.5. Notes, Etc.
(a) Loans Evidenced by Notes. The Revolving Loans made by each
Lender shall
be evidenced by a single Revolving Loan
Note payable to such Lender. The Bid
Loans made by each Lender shall be
evidenced by a single Bid Loan Note
payable to such Lender. Each Note shall, by its terms,
mature in accordance
with the provisions of this Agreement
applicable to the relevant Loans.
(b) Notation of Amounts and Maturities,
Etc. Each Lender is
hereby
irrevocably authorized to record on the
schedule attached to its Notes (or a
continuation thereof) the information
contemplated by such schedule. The
failure to record, or any error in
recording, any such information shall not,
however, affect the obligations of the
Borrower hereunder or under any Note
to repay the principal amount of the Loans
evidenced thereby, together with
all interest accrued thereon. All such notations shall
constitute conclusive
evidence of the accuracy of the information
so recorded, in the absence of
manifest error.
Section 2.6. Fees.
(a) Facility Fee. The Borrower shall pay to the
Agent, for the pro rata
benefit of the Lenders, a per annum
facility fee (the "Facility Fee") equal
to the Applicable Margin for the Facility
Fee, in effect from time to time,
based upon the then Revolving Committed
Amount, whether or not used, for each
day from and after the Closing Date until
the Revolving Commitment
Termination Date. The Facility Fee shall be payable
quarterly in arrears on
the last day of each calendar quarter and
on the Revolving Commitment
Termination Date. The Agent shall provide a billing
to the Borrower setting
forth the amount of the Facility Fee
payable in sufficient time for the
Borrower to make timely payments of the
correct amount without incurring any
penalty or interest at the Post-Default
Rate.
Page 22
<page>
(b) Utilization Fee. If, on any day, the aggregate
principal amount of all
Loans outstanding exceeds 50% of the then
Revolving Committed Amount, the
Borrower shall pay to the Agent, for the
pro rata benefit of the Lenders, a
per annum utilization fee (the "Utilization
Fee") equal to (a) the Applicable
Margin for the Utilization Fee, in effect
from time to time, multiplied by
(b) the aggregate principal amount of all
Loans outstanding on such day. The
Utilization Fee shall be payable quarterly
in arrears on the last day of each
calendar quarter and on the Revolving
Commitment Termination Date. The Agent
shall provide a billing to the Borrower
setting forth the amount of each
Utilization Fee payable in sufficient time
for the Borrower to make timely
payments of the correct amount without
incurring any penalty or interest at
the Post-Default Rate.
(c) Other Fees. On the Closing Date and from time
to time thereafter as
specified in the Fee Letter, the Borrower
shall pay to the Agent the fees
specified in the Fee Letter.
(d) Fees Non-Refundable. All Fees shall be fully earned
when payable
hereunder or under the Fee Letter and shall
be non-refundable.
Section 2.7. Termination and Reduction of
Revolving Commitments.
(a) Automatic Termination. Each Lender's Revolving Commitment
shall
terminate without further action on the
part of such Lender on the earlier to
occur of (i) the Maturity Date, and (ii)
the date of complete (but not
partial) termination of the Revolving
Commitments pursuant to Section 2.7(b)
or Section 7.2 (such earlier date being
referred to herein as the "Revolving
Commitment Termination Date").
(b) Voluntary Reductions. Upon not less than five Business
Days' prior
written notice to the Agent, the Borrower
shall have the right, at any time
or from time to time after the Closing
Date, to terminate in whole or
permanently reduce in part, without premium
or penalty, the Revolving
Committed Amount to an amount not less than
the then aggregate principal
amount of all outstanding Loans.
Any such termination
or partial reduction
shall be effective on the date specified in
the Borrower's notice, and any
such partial reduction shall be in a
minimum amount of $10,000,000 and in
integral multiples of $1,000,000 in excess
thereof.
(c) Change of Control. If a Change of Control shall occur
(a) the Borrower
will, within ten days after the occurrence
thereof, give the Agent notice
thereof and shall describe in reasonable
detail the facts and circumstances
giving rise thereto and (b) each Lender
may, by three Business Days' notice
to the Borrower and the Agent given not
later than 60 days after receipt of
such notice of Change of Control, terminate
its Revolving Commitment, which
shall thereupon be terminated, and declare
the Notes held by it (together
with accrued interest thereon) and any
other amounts payable hereunder for
its account to be, and such Notes and such
other amounts shall thereupon
become, immediately due and payable without
presentment, demand, protest or
other notice of any kind, all of which are
hereby waived by the Borrower.
Section 2.8. Repayments and
Prepayments.
(a) Repayment. The unpaid principal amount of all
Loans, together with
accrued but unpaid interest and all other
sums owing thereunder shall be due
and payable in full on the Revolving
Commitment Termination Date.
(b) Excess Revolving Loans. If at any time the aggregate
principal amount
Page 23
<page>
of all outstanding Loans exceeds the
Revolving Committed Amount, the Borrower
shall, not later than the Business Day
after the Borrower learns or is
notified of the excess, make mandatory
prepayments of the Revolving Loans as
may be necessary so that, after such
prepayment, such excess is eliminated.
(c) Optional Prepayments.
(i) Subject to this Section 2.8(c), the
Borrower may, at its option, at any
time or from time to time, prepay Revolving
Loans in whole or in part,
without premium or penalty, provided that
(A) any prepayment shall be in an
aggregate principal amount of at least
$5,000,000 and in integral multiples
of $1,000,000 in excess thereof (or,
alternatively, the whole amount of
Revolving Loans then outstanding) and (B)
any prepayment of a Euro-Dollar
Rate Loan on a day other than the last day
of the Interest Period applicable
thereto shall be made together with the
amounts payable pursuant to
Section 2.14. Bid Loans may not be voluntarily
prepaid at any time.
(ii) If the Borrower elects to prepay a
Revolving Loan under this
Section 2.8(c), it shall deliver to the
Agent a notice of optional prepayment
(A) with respect to a Base Rate Loan, not
later than 10:00 a.m. on the
proposed repayment date or (B) with respect
to a Euro-Dollar Rate Loan, not
later than 10:00 a.m. at least three
Business Days before the proposed
prepayment date. Any notice of optional prepayment
shall be irrevocable, and
the payment amount specified in such notice
shall be due and payable on the
date specified in such notice, together
with interest accrued thereon to such
date.
(d) Payments Set Aside. To the extent the Agent or any
Lender receives
payment of any amount under the Loan
Documents, whether by way of payment by
the Borrower, set-off or otherwise, which
payment is subsequently
invalidated, declared to be fraudulent or
preferential, set aside or required
to be repaid to a trustee, receiver or any
other party under any bankruptcy
law, other law or equitable cause, in whole
or in part, then, to the extent
of such payment received, the Obligations
or part thereof intended to be
satisfied thereby shall be revived and
continue in full force and effect.
Section 2.9. Manner of Payment.
(a) All payments to be made by the Borrower
shall be made without condition
or deduction for any counterclaim, defense,
recoupment or setoff.
Except as
otherwise expressly provided, the Borrower
shall make each payment under the
Loan Documents to the Agent, in Dollars and
in immediately available funds at
the Agent's Office, for the account of the
Applicable Lending Offices of the
Lenders entitled to such payment, by
depositing such payment in the Agent's
Account not later than 11:00 a.m. on the
due date thereof. Any
payments
received after 11:00 a.m. on any Business
Day shall be deemed received on the
next succeeding Business Day. Not later than 12:00 Noon on the
day such
payment is made, the Agent shall deliver to
each Lender, for the account of
the Lender's Applicable Lending Office, in
Dollars and in immediately
available funds, such Lender's share of the
payment so made.
Delivery shall
be made in accordance with the written
instructions satisfactory to the Agent
from time to time given to the Agent by
each Lender.
(b) Unless the Agent shall have received
notice from the Borrower prior to
the date on which any payment is due to the
Agent for the account of the
Lenders hereunder that the Borrower will
not make such payment, the Agent may
Page 24
<page>
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, the amount due. In such event, if the Borrower has
not in fact made
such payment, then each of the Lenders
severally agrees to repay to the Agent
forthwith on demand the amount so
distributed to such Lender, in immediately
available funds 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 Agent, at the greater of the Federal
Funds Rate and a rate determined by
the Agent in accordance with banking
industry rules on interbank
compensation.
(c) If the Agent shall fail to deliver to
any other Lender Party its share of
any payment received from the Borrower as
and when required by
Section 2.9(a), the Agent shall pay to such
Lender its share of such payment
together with interest on such amount at
the Federal Funds Rate, for each day
from the date such amount was required to
be paid to such Lender until the
date the Agent pays such amount to such
Lender.
(d) Subject to Sections 2.10 and 7.3, all
payments made by the Borrower under
the Loan Documents shall be applied to the
Obligations as the Borrower may
direct; provided that if the Borrower does
not provide any such direction to
the Agent, all amounts paid or received
shall be applied, subject to
Section 2.10, as the Agent may reasonably
deem appropriate.
(e) Whenever any payment to be made
hereunder shall be stated to be due on a
day that is not a Business Day, such
payment shall instead by made on the
next succeeding Business Day (subject to
accrual of interest and fees for the
period of extension), except that, in the
case of Euro-Dollar Rate Loans, if
the extension would cause the payment to be
made in the next following
calendar month, then such payment shall
instead be made on the preceding
Business Day.
Section 2.10. Pro Rata Treatment.
Except to the extent otherwise expressly
provided herein,
(a) Revolving Loans shall be made by the
Lenders pro rata according to their
respective Revolving Commitment
Percentages.
(b) Each reduction of the Revolving
Committed Amount and each payment of
Revolving Loans, interest on Revolving
Loans, Facility Fees and Utilization
Fees shall be applied pro rata among the
Lenders according to their
respective Revolving Commitment
Percentages.
(c) Each payment by the Borrower of
principal of Bid Loans made as part of
the same Borrowing shall be made and
applied for the account of the Lenders
holding such Bid Loans pro rata according
to the respective unpaid principal
amount of such Bid Loans owed to such
Lenders and each payment by the
Borrower of interest on Bid Loans shall be
made and applied for the account
of the Lenders holding such Bid Loans pro
rata according to the respective
accrued but unpaid interest on the Bid
Loans owed to such Lenders.
Section 2.11 Sharing of Payments.
The Lenders agree among themselves that,
except to the extent otherwise
provided herein, in the event that any
Lender shall obtain payment in respect
of any Loan, or any other obligation owing
to such Lender under this Agreement
through the exercise of a right of setoff,
banker's lien or counterclaim, or
pursuant to a secured claim under Section
506 of the Bankruptcy Code or other
security or interest arising from, or in
lieu of, such secured claim, received
by such Lender under any applicable
bankruptcy, insolvency or other similar law
Page 25
<page>
or otherwise, or by any other means, in
excess of its pro rata share of such
payment as provided for in this Agreement,
such Lender shall promptly pay in
cash or purchase from the other Lenders a
participation in such Loans and other
obligations in such amounts, and make such
other adjustments from time to time,
as shall be equitable to the end that all
Lenders share such payment in
accordance with their respective ratable
shares as provided for in this
Agreement. The Lenders further agree among
themselves that if payment to a
Lender obtained by such Lender through the
exercise of a right of setoff,
banker's lien, counterclaim or other event
as aforesaid shall be rescinded or
must otherwise be restored, each Lender
which shall have shared the benefit of
such payment shall, by payment in cash or a
repurchase of a participation
theretofore sold, return its share of that
benefit (together with its share of
any accrued interest payable with respect
thereto) to each Lender whose payment
shall have been rescinded or otherwise
restored. Except as
otherwise expressly
provided in this Agreement, if any Lender
or the Agent shall fail to remit to
any other Lender an amount payable by such
Lender or the Agent to such other
Lender pursuant to this Agreement on the
date when such amount is due, such
payments shall be made together with
interest thereon for each date from the
date such amount is due until the date such
amount is paid to the Agent or
such other Lender at a rate per annum equal
to the Federal Funds Rate. If
under any applicable bankruptcy, insolvency
or other similar law, any Lender
receives a secured claim in lieu of a
setoff to which this Section 2.11
applies, such Lender shall, to the extent
practicable, exercise its rights in
respect of such secured claim in a manner
consistent with the rights of the
Lenders under this Section 2.11 to share in
the benefits of any recovery on
such secured claim.
Section 2.12. Mandatory Suspension and
Conversion of Euro-Dollar Rate Loans.
Each Lender's obligation to make, continue
or convert Loans into Euro-Dollar
Rate Loans shall be suspended, all
outstanding Euro-Dollar Rate Loans shall
be converted into Base Rate Loans on the
last day of the respective Interest
Periods applicable thereto (or, if earlier,
in the case of Section 2.12(b),
on the last day that such Lender can
lawfully continue to maintain Euro-
Dollar Rate Loans) and all pending requests
for the making or continuation
of, or conversion into, Euro-Dollar Rate
Loans shall be considered requests
for the making or conversion into Base Rate
Loans (or, in the case of
requests for conversion, disregarded) on
the same Funding Date or the end of
the currently applicable Interest Period,
as applicable, if:
(a) on or prior to the determination of the
interest rate for a Euro-Dollar
Rate Loan for any Interest Period, the
Agent determines that for any reason
appropriate quotations (as referenced in
the definition of "Interbank Offered
Rate" appearing in Section 1.1) are not
available to the Agent in the
relevant interbank market for purposes of
determining the Euro-Dollar Rate or
a Lender advises the Agent (which shall
thereupon notify the Borrower and the
other Lenders) that such rate would not
accurately reflect the cost to such
Lender of making, continuing, or converting
a Loan into, a Euro-Dollar Rate
Loan for such Interest Period; or
(b) after the date hereof, a Lender
notifies the Agent (which shall thereupon
notify the Borrower and the other Lenders)
of its determination that any
Regulatory Change makes it unlawful or
impossible for such Lender or its
Euro-Dollar Lending Office to make or
maintain any Euro-Dollar Rate Loan, or
to comply with its obligations hereunder in
respect thereof; provided,
however, that if the Euro-Dollar Lending
Office of any affected Lender is
other than the affected Lender's main
office, before giving such notice, such
affected Lender agrees to use reasonable
efforts (consistent with its
internal policy and legal and regulatory
restrictions) to designate a
different Euro-Dollar Lending Office if
such designation will avoid the need
for giving such notice and will not be
otherwise materially disadvantageous
to such Lender.
Page 26
<page>
Section 2.13. Regulatory Changes.
(a) Increased Costs. If, on or after the date hereof,
any Regulatory Change
shall impose, modify, or deem applicable
any reserve, special deposit,
compulsory loan, insurance or similar
requirement (other than any such
requirement with respect to any Euro-Dollar
Rate Loan to the extent included
in the Euro-Dollar Reserve Requirement),
against, or any fees or charges in
respect of, assets held by, deposits with
or other liabilities for the
account of, commitments of, advances or
Loans by or other credit extended by,
any Lender Party (or its Applicable Lending
Office) or shall impose on any
Lender Party (or its Applicable Lending
Office) or on the relevant interbank
market any other condition affecting any
Euro-Dollar Rate Loan, or any
obligation to make Euro-Dollar Rate Loans,
and the effect of the foregoing is
(i) to increase the cost to such Lender
Party (or its Applicable Lending
Office) of making, issuing, renewing or
maintaining any Euro-Dollar Rate Loan
or its Revolving Commitment in respect
thereof or (ii) to reduce the amount
of any sum received or receivable by such
Lender Party (or its Applicable
Lending Office) hereunder or under any
other Loan Document with respect
thereto, then, the Borrower shall from time
to time pay to such Lender Party,
within 15 days after request by such Lender
Party, such additional amounts as
are necessary, in such Lender Party's
reasonable determination, to compensate
such Lender Party for such increased cost
or reduction; provided, however,
that if the Euro-Dollar Lending Office of
any affected Lender is other than
the affected Lender's main office, before
giving such notice, such affected
Lender agrees to use reasonable efforts
(consistent with its internal policy
and legal and regulatory restrictions) to
designate a different Euro-Dollar
Lending Office if such designation will
avoid the need for giving such notice
and will not be otherwise materially
disadvantageous to such Lender.
(b) Capital Costs. If a Regulatory Change after the
date hereof regarding
capital adequacy (including the adoption or
becoming effective of any treaty,
law, rule, regulation or guideline adopted
pursuant to or arising out of the
July 1988 report of the Basle Committee on
Banking Regulations and
Supervisory Practices entitled
"International Convergence of Capital
Measurement and Capital Standards") has or
would have the effect of reducing
the rate of return on the capital of or
maintained by any Lender or any
company controlling such Lender as a
consequence of such Lender's Loans or
obligations hereunder and other commitments
of this type to a level below
that which such Lender or company could
have achieved but for such Regulatory
Change (taking into account such Lender's
or company's policies with respect
to capital adequacy), then the Borrower
shall from time to time pay to such
Lender, within 15 days after request by
such Lender, such additional amounts
as are necessary in such Lender's
reasonable determination to compensate such
Lender or company for such reduction in
return, to the extent such Lender or
company determines such reduction to be
attributable to the existence of
obligations for the account of the
Borrower.
Section 2.14. Compensation for Funding
Losses.
The Borrower shall pay to any Lender, upon
demand by such Lender, such amount
or amounts as such Lender reasonably
determines is or are necessary to
compensate it for any loss, cost, expense
or liabilities incurred (including
any loss, cost, expense or liability
incurred by reason of the liquidation or
redeployment of deposits) by it as a result
of (a) any payment, prepayment or
conversion of any Euro-Dollar Rate Loan for
any reason (including by reason
of a prepayment pursuant to Section 2.8(b)
or an acceleration pursuant to
Section 7.2, but excluding any prepayment
pursuant to Section 2.1(e)) on a
date other than the last day of an Interest
Period applicable to such Euro-
Dollar Rate Loan, or (b) any Euro-Dollar
Rate Loan for any reason not being
made (other than a wrongful failure to fund
by such Lender or failure to make
such a Loan due to circumstances described
in Section 2.12), converted or
continued, or any payment of principal of
or interest thereon not being made,
on the date therefore determined in
accordance with the applicable provisions
Page 27
<page>
of this Agreement or (c) for any prepayment
of a Bid Loan due to acceleration
pursuant to Section 7.2 or otherwise.
Notwithstanding the
foregoing, the
Borrower shall not be responsible to any
Lender for any costs hereunder that
result from the application of Section 2.12
or from any wrongful actions or
omissions or default (including under
Section 2.1(e)) of such Lender.
Section 2.15. Certificates Regarding Yield
Protection, Etc.
Any request by any Lender Party for payment
of additional amounts pursuant to
Sections 2.13, 2.14 and 2.16 shall be
accompanied by a certificate of such
Lender Party setting forth the basis and
amount of such request. In
determining the amount of such payment,
such Lender Party may use such
reasonable attribution or averaging methods
as it deems appropriate and
practical.
Section 2.16 Taxes.
(a) Tax Liabilities Imposed on a Lender.
Any and all payments
by the
Borrower hereunder or under any of the Loan
Documents shall be made, in
accordance with the terms hereof and
thereof, subject to the provisions of
this Section 2.16 and Section 2.17, free
and clear of and without deduction
for any and all Taxes other than Excluded
Taxes. If the Borrower
shall be
required by law to deduct any Taxes from or
in respect of any sum payable
hereunder to any Lender, (i) the sum
payable shall be increased as may be
necessary so that after making all required
deductions (including deductions
applicable to additional sums payable under
this Section 2.16) such Lender
receives an amount equal to the sum it
would have received had no such
deductions been made, (ii) the Borrower
shall make such deductions, (iii) the
Borrower shall pay the full amount deducted
to the relevant Governmental
Authority in accordance with Applicable
Law, and (iv) the Borrower shall
deliver to such Lender evidence of such
payment to the relevant Governmental
Authority. Notwithstanding any other
provision of this Section 2.16, the
Borrower shall not be required to pay any
additional amounts pursuant to this
Section 2.16(a) with respect to Taxes that
are attributable to such Lender's
failure to fully comply with Section
2.16(c) and/or the
