AutoZone Credit Agreement


EXHIBIT 10.1

 

 





FIVE-YEAR CREDIT AGREEMENT

 

Dated as of May 23, 2000

among

AUTOZONE, INC.,

as Borrower,

 

THE SEVERAL LENDERS

FROM TIME TO TIME PARTY HERETO

AND

BANK OF AMERICA, N.A.,

as Administrative Agent

and

THE CHASE MANHATTAN BANK,

as Syndication Agent

______________________________________________________________

 

BANC OF AMERICA SECURITIES, LLC

and

CHASE SECURITIES INC.,

as Lead Arrangers

and

Book Managers

and

BANK ONE, NA

and

FLEET NATIONAL BANK,

as

Co-Documentation Agents









TABLE OF CONTENTS









SECTION 1 DEFINITIONS

1.1     Definitions.

1.2     Computation of Time Periods.

1.3     Accounting Terms.

SECTION 2 CREDIT FACILITIES
2.1     Revolving Loans.

2.2     Competitive Loan Subfacility.

2.3     Swingline Loan Subfacility.

SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES
3.1     Default Rate.

3.2     Extension and Conversion.

3.3     Prepayments.

3.4     Termination, Reduction and Increase of
Revolving Committed Amount.

3.5     Fees.

3.6     Capital Adequacy.

3.7     Inability To Determine Interest Rate.

3.8     Illegality.

3.9     Yield Protection.

3.10    Withholding Tax Exemption.

3.11     Indemnity.

3.12     Pro Rata Treatment.

3.13     Sharing of Payments.

3.14     Payments, Computations, Etc.

3.15     Evidence of Debt.

3.16     Replacement of Lenders.

SECTION 4 CONDITIONS
4.1     Closing Conditions.

4.2     Conditions to all Extensions of Credit.

SECTION 5 REPRESENTATIONS AND WARRANTIES
5.1     Financial Condition.

5.2     Organization; Existence; Compliance with
Law.

5.3     Power; Authorization; Enforceable Obligations.

5.4     No Legal Bar.

5.5     No Material Litigation.

5.6     No Default.

5.7     Ownership of Property; Liens.

5.8     No Burdensome Restrictions.

5.9     Taxes.

5.10     ERISA.

5.11     Governmental Regulations, Etc.

5.12     Subsidiaries.

5.13     Purpose of Loans

5.14    Year 2000 Matters.

SECTION 6 AFFIRMATIVE COVENANTS
6.1     Information Covenants.

6.2     Preservation of Existence and Franchises.

6.3     Books and Records.

6.4     Compliance with Law.

6.5     Payment of Taxes and Other Indebtedness.

6.6     Insurance.

6.7     Maintenance of Property.

6.8     Use of Proceeds.

6.9     Audits/Inspections.

6.10     Adjusted Debt to EBITDAR Ratio.

6.11     Interest Coverage Ratio.

SECTION 7 NEGATIVE COVENANTS
7.1     Liens.

7.2     Nature of Business.

7.3     Consolidation, Merger, Sale or Purchase
of Assets, etc.

7.4     Fiscal Year.

7.5     Subsidiary Indebtedness.

SECTION 8 EVENTS OF DEFAULT
8.1     Events of Default.

8.2     Acceleration; Remedies.

SECTION 9 AGENCY PROVISIONS
9.1     Appointment.

9.2     Delegation of Duties.

9.3     Exculpatory Provisions.

9.4     Reliance on Communications.

9.5     Notice of Default.

9.6     Non-Reliance on Administrative Agent and
Other Lenders.

9.7     Indemnification.

9.8     Administrative Agent in its Individual
Capacity.

9.9     Successor Administrative Agent.

9.10   Syndication Agent.

SECTION 10 MISCELLANEOUS
10.1     Notices.

10.2     Right of Set-Off.

10.3     Benefit of Agreement.

10.4     No Waiver; Remedies Cumulative.

10.5     Payment of Expenses, etc.

10.6     Amendments, Waivers and Consents.

10.7     Counterparts.

10.8     Headings.

10.9     Survival.

10.10     Governing Law; Submission to Jurisdiction;
Venue.

10.11     Severability.

10.12     Entirety.

10.13     Binding Effect; Termination.

10.14     Confidentiality.

10.15     Source of Funds.

10.16     Conflict.


SCHEDULES

Schedule 1.1 Applicable Percentage

Schedule 2.1(a) Lenders

Schedule 2.1(b)(i) Form of Notice of Borrowing

Schedule 2.1(e) Form of Revolving Note

Schedule 2.2(f) Form of Competitive Note

Schedule 2.3(d) Form of Swingline Note

Schedule 3.2 Form of Notice of Extension/Conversion

Schedule 3.4(b) Form of New Commitment Agreement

Schedule 4.1(f) Form of Legal Opinion

Schedule 5.5 Material Litigation

Schedule 5.12 Subsidiaries

Schedule 6.1(c) Form of Officer's Compliance Certificate

Schedule 7.5 Subsidiary Indebtedness

Schedule 10.3(b) Form of Assignment and Acceptance







FIVE-YEAR CREDIT AGREEMENT

THIS FIVE-YEAR CREDIT AGREEMENT dated as of May 23, 2000 (the
"Credit Agreement"), is by and among AUTOZONE, INC., a Nevada
corporation (the "Borrower"), the several lenders identified on
the signature pages hereto and such other lenders as may from time to time
become a party hereto (the "Lenders"), BANK OF AMERICA, N.A.,
as administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), and THE CHASE MANHATTAN BANK, as syndication agent
(in such capacity, the "Syndication Agent").

 

 






W I T N E S S E T H


WHEREAS, the Borrower has requested that the Lenders provide
a $650,000,000 credit facility (as such credit facility may be increased
or decreased pursuant to the terms hereof) 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;

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:

 

 




SECTION 1

DEFINITIONS


1.1 Definitions.

As used in this Credit Agreement, the following terms shall have the
meanings specified below unless the context otherwise requires:

"364-Day Credit Agreement" means that certain Credit Agreement
dated as of the date hereof by and among the Borrower, the lenders party
thereto, Bank of America, N.A., as administrative agent and The Chase Manhattan
Bank, as syndication agent.
"364-Day Revolver" means the revolving loan facility established
pursuant to the 364-Day Credit Agreement.

"Administrative Agent" shall have the meaning assigned to such
term in the heading hereof, together with any successors or assigns.

"Administrative Agent's Fee Letter" means that certain letter
agreement, dated as of April 14, 2000, between the Administrative Agent
and the Borrower, as amended, modified, supplemented or replaced from time
to time.

"Administrative Agent's Fees" shall have the meaning assigned
to such term in Section 3.5(b).

"Affiliate" means, with respect to any Person, any other Person
(i) directly or indirectly controlling or controlled by or under direct
or indirect common control with such Person or (ii) directly or indirectly
owning or holding five percent (5%) or more of the equity interest in such
Person. For purposes of this definition, "control" when used with respect
to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.

"Agency Services Address" means Bank of America, N.A., Agency
Administrative Services, 1850 Gateway Boulevard, 5th Floor,
Concord, California 94520-3281, Attention: Jennifer Reeves, or such other
address as may be identified by written notice from the Administrative
Agent to the Borrower.

"Applicable Percentage" means, for purposes of calculating the
applicable interest rate for any day for any Revolving Loan, the applicable
rate of the Facility Fee for any day for purposes of Section 3.5(a) or
the applicable rate of the Utilization Fee for any day for the purposes
of Section 3.5(c), the appropriate applicable percentage set forth on Schedule
1.1. The Applicable Percentages shall be determined and adjusted on
the following dates (each a "Calculation Date"):

 

(i) where the Borrower has a senior unsecured (non-credit enhanced)
long term debt rating from S&P and/or Moody's, five (5) Business Days
after receipt of notice by the Administrative Agent of a change in any
such debt rating, based on such debt rating(s); and
 
(ii) where the Borrower previously had a senior unsecured (non-credit enhanced)
long term debt rating from S&P and/or Moody's, but either or both of
S&P and Moody's withdraws its rating such that the Borrower's senior
unsecured (non-credit enhanced) long term debt no longer is rated by either
S&P or Moody's, five (5) Business Days after receipt by the Administrative
Agent of notice of the withdrawal of the last to exist of such previous
debt ratings, based on Pricing Level V until the earlier of (A) such time
as S&P and/or Moody's provides another rating for such debt of the
Borrower or (B) the Required Lenders have agreed to an alternative pricing
grid or other method for determining Pricing Levels pursuant to an effective
amendment to this Credit Agreement.
 

The Applicable Percentage shall be effective from a Calculation Date until
the next such Calculation Date. The Administrative Agent shall determine
the appropriate Applicable Percentages promptly upon receipt of the notices
and information necessary to make such determination and shall promptly
notify the Borrower and the Lenders of any change thereof. Such determinations
by the Administrative Agent shall be conclusive absent manifest error.
The Applicable Percentage from the Closing Date shall be based on Pricing
Level II, subject to adjustment as provided herein.
"Bank of America" means Bank of America, N.A. and its successors.

"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from time
to time.

"Bankruptcy Event" means, with respect to any Person, the occurrence
of any of the following with respect to such Person: (i) a court or governmental
agency having jurisdiction in the premises shall enter a decree or order
for relief in respect of such Person in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of such Person or for any substantial part of its
Property or ordering the winding up or liquidation of its affairs; or (ii)
there shall be commenced against such Person an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or any case, proceeding or other action for the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of such Person or for any substantial part of its Property
or for the winding up or liquidation of its affairs, and such involuntary
case or other case, proceeding or other action shall remain undismissed,
undischarged or unbonded for a period of sixty (60) consecutive days; or
(iii) such Person shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official)
of such Person or for any substantial part of its Property or make any
general assignment for the benefit of creditors; or (iv) such Person shall
be unable to, or shall admit in writing its inability to, pay its debts
generally as they become due.

"Base Rate" means, for any day, the rate per annum (rounded upwards,
if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the
greater of (a) the Federal Funds Rate in effect on such day plus
1⁄2 of 1% or (b) the Prime Rate in effect on such day. If for any
reason the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable after due
inquiry to ascertain the Federal Funds Rate for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms hereof, the Base Rate shall be determined
without regard to clause (a) of the first sentence of this definition until
the circumstances giving rise to such inability no longer exist. Any change
in the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the Prime
Rate or the Federal Funds Rate, respectively.

"Base Rate Loan" means any Loan bearing interest at a rate determined
by reference to the Base Rate.

"Borrower" means the Person identified as such in the heading
hereof, together with any permitted successors and assigns.

"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required
by law to close, except that, when used in connection with
a Eurodollar Loan, such day shall also be a day on which dealings between
banks are carried on in U.S. dollar deposits in London, England and New
York, New York.

"Calculation Date" has the meaning set forth in the definition
of Applicable Percentage.

"Capital Lease" means, as applied to any Person, any lease of
any Property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a capital
lease on the balance sheet of that Person.

"Change of Control" means either (i) a "person" or a "group"
(within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange
Act of 1934) becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934) of more than 50% of the then outstanding
voting stock of the Borrower or (ii) a majority of the board of directors
of the Borrower shall consist of individuals who are not Continuing Directors.
For purposes hereof, "Continuing Directors" means, as of any date of determination,
(i) an individual who on the date two years prior to such determination
date was a member of the Borrower's board of directors or (ii) (a) any
new director whose nomination for election by the Borrower's shareholders
was approved by a vote of a majority of the directors then still in office
who either were directors on the date two years prior to such determination
date or whose nomination for election was previously so approved or (b)
any new director who was elected by a majority of the directors then still
in office who either were directors on the date two years prior to such
determination date or whose nomination for election was previously so approved.

"Closing Date" means the date hereof.

"Code" means the Internal Revenue Code of 1986, as amended, and
any successor statute thereto, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time. References
to sections of the Code shall be construed also to refer to any successor
sections.

"Commercial Credit Business Arrangement" means any agreement
between the Borrower or any of its Subsidiaries and an entity that purchases
such Person's commercial accounts receivables with only such limited recourse
back to such Person as is customary in factoring arrangements of this type.
As of the Closing Date, such services are provided to the Borrower pursuant
to an agreement between the Borrower and Transamerica Accounts Receivables
Servicing, Inc.

"Commitment" means (i) with respect to each Lender, the Revolving
Commitment of such Lender and (ii) with respect to the Swingline Lender,
the Swingline Commitment.

"Commitment Percentage" means, for any Lender, the percentage
which such Lender's Revolving Commitment then constitutes of the aggregate
Revolving Committed Amount.

"Competitive Bid" means an offer by a Lender to make a Competitive
Loan pursuant to the terms of Section 2.2.

"Competitive Bid Rate" means, as to any Competitive Bid made
by a Lender in accordance with the provisions of Section 2.2, the fixed
rate of interest offered by the Lender making the Competitive Bid.

"Competitive Loan" means a loan made by a Lender in its discretion
pursuant to the provisions of Section 2.2.

"Competitive Note" means a promissory note of the Borrower in
favor of a Lender delivered pursuant to Section 2.2(f) and evidencing the
Competitive Loans, if any, of such Lender, as such promissory note may
be amended, modified, restated or replaced from time to time.

"Consolidated Adjusted Debt" means, at any time, the sum of (i)
Consolidated Funded Indebtedness and (ii) the product of Consolidated Rents
multiplied by 6.0.

"Consolidated EBITDA" means, for any period for the Borrower
and its Subsidiaries, Consolidated Net Income plus Consolidated
Interest Expense plus all provisions for any Federal, state or other
domestic and foreign income taxes plus depreciation and amortization,
in each case on a consolidated basis determined in accordance with GAAP
applied on a consistent basis. Except as otherwise expressly provided,
the applicable period shall be for the four consecutive fiscal quarters
ending as of the date of determination.

"Consolidated EBITDAR" means, for any period, the sum of Consolidated
EBITDA and Consolidated Rents. Except as otherwise expressly provided,
the applicable period shall be for the four consecutive fiscal quarters
ending as of the date of determination.

"Consolidated EBITR" means, for any period for the Borrower and
its Subsidiaries, Consolidated EBITDA minus depreciation and amortization
plus
Consolidated Rents, in each case on a consolidated basis as determined
in accordance with GAAP applied on a consistent basis. Except as otherwise
expressly provided, the applicable period shall be for the four consecutive
fiscal quarters ending as of the date of determination.

"Consolidated Funded Indebtedness" means, at any time, the outstanding
principal amount of all Funded Indebtedness, without duplication, of the
Borrower and its Subsidiaries at such time.

"Consolidated Interest Coverage Ratio" means, as of the last
day of any fiscal quarter of the Borrower, the ratio of (i) Consolidated
EBITR to (ii) Consolidated Interest Expense plus Consolidated Rents.

"Consolidated Interest Expense" means, for any period for the
Borrower and its Subsidiaries, all interest expense plus the interest
component under Capital Leases, in each case on a consolidated basis as
determined in accordance with GAAP applied on a consistent basis. Except
as otherwise expressly provided, the applicable period shall be for the
four consecutive fiscal quarters ending as of the date of determination.

"Consolidated Net Income" means, for any period for the Borrower
and its Subsidiaries, net income on a consolidated basis determined in
accordance with GAAP applied on a consistent basis, but excluding non-recurring
charges in an aggregate amount not to exceed $50,000,000 collectively with
respect to all periods relevant for the calculation of the financial covenants
contained in Sections 6.10 and 6.11. Except as otherwise expressly provided,
the applicable period shall be for the four consecutive fiscal quarters
ending as of the date of determination.

"Consolidated Rents" means, for any period for the Borrower and
its Subsidiaries, all rental expense of the Borrower and its Subsidiaries
for such period under operating leases (specifically including rents paid
in connection with synthetic leases, tax retention operating leases, off-balance
sheet loans or similar off-balance sheet financing products), on a consolidated
basis as determined in accordance with GAAP applied on a consistent basis.
Except as otherwise expressly provided, the applicable period shall be
for the four consecutive fiscal quarters ending as of the date of determination.

"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, the Administrative Agent's Fee Letter, and all other
related agreements and documents issued or delivered hereunder or thereunder
or pursuant hereto or thereto.

"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.

"Designating Lender" has the meaning set forth in Section 10.3(e).

"Dollars" and "$" means dollars in lawful currency of
the United States of America.

"Environmental Laws" means any and all lawful and applicable
Federal, state, local and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants, franchises,
licenses, agreements or other governmental restrictions relating to the
environment or to emissions, discharges, releases or threatened releases
of pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes into the environment including, without limitation,
ambient air, surface water, ground water, or land, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, chemicals,
or industrial, toxic or hazardous substances or wastes.

"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed also
to refer to any successor sections.

"ERISA Affiliate" means an entity which is under common control
with the Borrower within the meaning of Section 4001(a)(14) of ERISA, or
is a member of a group which includes the Borrower and which is treated
as a single employer under Sections 414(b) or (c) of the Code.

"ERISA Event" means (i) with respect to any Plan, the occurrence
of a Reportable Event or the substantial cessation of operations (within
the meaning of Section 4062(e) of ERISA); (ii) the withdrawal by the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate from a Multiple Employer
Plan during a plan year in which it was a substantial employer (as such
term is defined in Section 4001(a)(2) of ERISA), or the termination of
a Multiple Employer Plan; (iii) the distribution of a notice of intent
to terminate or the actual termination of a Plan pursuant to Section 4041(a)(2)
or 4041A of ERISA; (iv) the institution of proceedings to terminate or
the actual termination of a Plan by the PBGC under Section 4042 of ERISA;
(v) any event or condition which could reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan; (vi) the complete or partial withdrawal
of the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
from a Multiemployer Plan; (vii) the conditions for imposition of a lien
under Section 302(f) of ERISA exist with respect to any Plan; or (vii)
the adoption of an amendment to any Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA.

"Eurodollar Loan" means any Loan bearing interest at a rate determined
by reference to the Eurodollar Rate.

"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Loan comprising part of the same borrowing (including conversions, extensions
and renewals), a per annum interest rate determined pursuant to the following
formula:

 

Eurodollar Rate = Interbank Offered Rate

                          
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that percentage
(expressed as a decimal) which is in effect from time to time under Regulation
D of the Board of Governors of the Federal Reserve System (or any successor),
as such regulation may be amended from time to time or any successor regulation,
as the maximum reserve requirement (including, without limitation, any
basic, supplemental, emergency, special, or marginal reserves) applicable
with respect to Eurocurrency liabilities as that term is defined in Regulation
D (or against any other category of liabilities that includes deposits
by reference to which the interest rate of Eurodollar Loans is determined),
whether or not Lender has any Eurocurrency liabilities subject to such
reserve requirement at that time. Eurodollar Loans shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed subject to reserve
requirements without benefits of credits for proration, exceptions or offsets
that may be available from time to time to a Lender. The Eurodollar Rate
shall be adjusted automatically on and as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Event of Default" means such term as defined in Section 8.1.

"Existing Credit Agreements" means, collectively, (i) that certain
Credit Agreement, dated as of December 20, 1996, as amended by Amendment
No. 1 to Credit Agreement dated as of February 10, 1998, Amendment No.
2 to Credit Agreement dated as of November 13, 1998 and Amendment No. 3
to Credit Agreement dated as of March 28, 2000, by and among the Borrower,
the lenders party thereto and Bank of America, formerly known as NationsBank,
N.A., as Agent, and (ii) that certain Credit Agreement dated as of November
13, 1998, as amended by Amendment No. 1 to Credit Agreement dated as of
July 16, 1999 and Amendment No. 2 to Credit Agreement dated as of March
28, 2000, by and among the Borrower, the lenders party thereto and Bank
of America, formerly known as NationsBank, N.A., as Agent.

"Facilities" means a collective reference to (i) the revolving
loan facility established pursuant to Section 2.1 and (ii) the 364-Day
Revolver.

"Facility Fee" shall have the meaning assigned to such term in
Section 3.5(a).

"Facility Fee Calculation Period" shall have the meaning assigned
to such term in Section 3.5(a).

"Fees" means all fees payable pursuant to Section 3.5.

"Federal Funds Rate" means, for any day, the rate of interest
per annum (rounded upwards, if necessary, to the nearest whole multiple
of 1/100 of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day, provided
that (A) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day and (B) if no such rate is so published on such next preceding
Business Day, the Federal Funds Rate for such day shall be the average
rate quoted to the Administrative Agent on such day on such transactions
as determined by the Administrative Agent.

"Financial Officer" means, with respect to the Borrower, the
Treasurer, the Chief Accounting Officer, the General Counsel, the Chief
Financial Officer, or the Vice President-Finance of the Borrower; provided
that the Borrower may designate additional persons or delete persons so
authorized by written notice to the Administrative Agent from at least
two existing Financial Officers of the Borrower.

"Funded Indebtedness" means, with respect to any Person (for
purposes of this sentence only, the "Debtor"), without duplication,
(i) all Indebtedness of such Debtor for borrowed money, (ii) all purchase
money Indebtedness of such Debtor, including without limitation the principal
portion of all obligations of such Debtor under Capital Leases, (iii) all
Guaranty Obligations of such Debtor with respect to Funded Indebtedness
of another Person, (iv) the maximum available amount of all standby letters
of credit or acceptances issued or created for the account of such Debtor,
and (v) all Funded Indebtedness of another Person secured by a Lien on
any Property of such Debtor, whether or not such Funded Indebtedness has
been assumed; provided that Funded Indebtedness shall not include
(i) any letters of credit used by such Debtor for the financing of inventory
in the ordinary course of business or (ii) any amounts received by such
Debtor pursuant to a Commercial Credit Business Arrangement. The Funded
Indebtedness of any Person shall include the Funded Indebtedness of any
partnership or joint venture in which such Person is a general partner
or joint venturer.

"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3 hereof.

"Governmental Authority" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory
body.

"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in
the ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including without
limitation any obligation, whether or not contingent, (i) to purchase any
such Indebtedness or any Property constituting security therefor, (ii)
to advance or provide funds or other support for the payment or purchase
of any such Indebtedness or to maintain working capital, solvency or other
balance sheet condition of such other Person (including without limitation
keep well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of Indebtedness
of such other Person, (iii) to lease or purchase Property, securities or
services primarily for the purpose of assuring the holder of such Indebtedness,
or (iv) to otherwise assure or hold harmless the holder of such Indebtedness
against loss in respect thereof. The amount of any Guaranty Obligation
hereunder shall (subject to any limitations set forth therein) be deemed
to be an amount equal to the outstanding principal amount (or maximum principal
amount, if larger) of the Indebtedness in respect of which such Guaranty
Obligation is made.

"Indebtedness" of any Person means (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced
by bonds, debentures, notes or similar instruments, or upon which interest
payments are customarily made, (iii) all obligations of such Person under
conditional sale or other title retention agreements relating to Property
purchased by such Person (other than customary reservations or retentions
of title under agreements with suppliers entered into in the ordinary course
of business), (iv) all obligations of such Person issued or assumed as
the deferred purchase price of Property or services purchased by such Person
(other than trade debt incurred in the ordinary course of business and
due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person, (v) all obligations of such
Person under take-or-pay or similar arrangements or under commodities agreements,
(vi) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
Property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (vii) all Guaranty Obligations of such
Person, (viii) the principal portion of all obligations of such Person
under Capital Leases, (ix) all obligations of such Person in respect of
interest rate protection agreements, foreign currency exchange agreements,
commodity purchase or option agreements or other interest or exchange rate
or commodity price hedging agreements, (x) the maximum amount of all standby
letters of credit issued or bankers' acceptances facilities created for
the account of such Person and, without duplication, all drafts drawn thereunder
(to the extent unreimbursed), (xi) all preferred stock issued by such Person
and required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due, by a fixed date and (xii) the principal
balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
to which such Person is a party, where such transaction is considered borrowed
money indebtedness for tax purposes but is classified as an operating lease
in accordance with GAAP; provided that Indebtedness shall not include
(i) any letters of credit used by such Person for the financing of inventory
in the ordinary course of business or (ii) any amounts received by such
Person pursuant to a Commercial Credit Business Arrangement. The Indebtedness
of any Person shall include the Indebtedness of any partnership or joint
venture in which such Person is a general partner or a joint venturer.

"Interbank Offered Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate (rounded upwards, if
necessary, to the nearest whole multiple of 1/100 of 1%) equal to the rate
of interest, determined by the Administrative Agent on the basis of the
offered rates for deposits in dollars for a period of time corresponding
to such Interest Period (and commencing on the first day of such Interest
Period), appearing on Telerate Page 3750 (or, if, for any reason, Telerate
Page 3750 is not available, the Reuters Screen LIBO Page) as of approximately
11:00 A.M. (London time) two (2) Business Days before the first day of
such Interest Period. As used herein, "Telerate Page 3750" means the display
designated as page 3750 by Dow Jones Telerate, Inc. (or such other page
as may replace such page on that service for the purpose of displaying
the British Bankers Association London interbank offered rates) and "Reuters
Screen LIBO Page" means the display designated as page "LIBO" on the Reuters
Monitor Money Rates Service (or such other page as may replace the LIBO
page on that service for the purpose of displaying London interbank offered
rates of major banks).

"Interest Payment Date" means (i) as to any Base Rate Loan, the
last day of each March, June, September and December, the date of repayment
of principal of such Loan and the Termination Date and (ii) as to any Eurodollar
Loan, any Competitive Loan or any Swingline Loan, the last day of each
Interest Period for such Loan, the date of repayment of principal of such
Loan and on the Termination Date, and in addition where the applicable
Interest Period is more than 3 months, then also on the date 3 months from
the beginning of the Interest Period, and each 3 months thereafter. If
an Interest Payment Date falls on a date which is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding Business
Day, except that in the case of Eurodollar Loans where the
next succeeding Business Day falls in the next succeeding calendar month,
then on the next preceding Business Day.

"Interest Period" means (i) as to any Eurodollar Loan, a period
of one, two, three or six month's duration, as the Borrower may elect,
commencing in each case, on the date of the borrowing (including conversions,
extensions and renewals), (ii) as to any Competitive Loan, a period commencing
in each case on the date of the borrowing and ending on the date specified
in the applicable Competitive Bid whereby the offer to make such Competitive
Loan was extended (such ending date in any event to be no less than one
week and not more than 180 days from the date of the borrowing) and (iii)
as to any Swingline Loan, a period commencing in each case on the date
of the borrowing and ending on the date agreed to by the Borrower and the
Swingline Lender in accordance with the provisions of Section 2.3(b)(i)
(such ending date in any event to be not more than seven (7) Business Days
from the date of borrowing); provided, however, (A) if any
Interest Period would end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day (except that
in the case of Eurodollar Loans where the next succeeding Business Day
falls in the next succeeding calendar month, then on the next preceding
Business Day), (B) no Interest Period shall extend beyond the Termination
Date, and (C) in the case of Eurodollar Loans, where an Interest Period
begins on a day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end, such Interest
Period shall end on the last day of such calendar month.

"Lenders" means each of the Persons identified as a "Lender"
on the signature pages hereto, and each Person which may become a Lender
by way of assignment in accordance with the terms hereof, together with
their successors and permitted assigns.

"Lending Installation" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such
Lender or the Administrative Agent.

"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement, any financing or similar statement or notice filed under the
Uniform Commercial Code as adopted and in effect in the relevant jurisdiction
or other similar recording or notice statute, and any lease in the nature
thereof).

"Loan" or "Loans" means the Revolving Loans, the Competitive
Loans and/or the Swingline Loans (or any Swingline Loan bearing interest
at the Base Rate or the Quoted Rate and referred to as a Base Rate Loan
or a Quoted Rate Swingline Loan), individually or collectively, as appropriate.

"Master Account" means such account as may be identified by written
notice from at least two Financial Officers of the Borrower to the Administrative
Agent.

"Material Adverse Effect" means a material adverse effect on
(i) the condition (financial or otherwise), operations, business, assets
or liabilities of the Borrower and its Subsidiaries, taken as a whole,
(ii) the ability of the Borrower to perform any material obligation under
the Credit Documents or (iii) any aspect of the Borrower or its business
that adversely affects the material rights and remedies of the Lenders
under the Credit Documents.

"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Laws, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.

"Moody's" means Moody's Investors Service, Inc., or any successor
or assignee of the business of such company in the business of rating securities.

"Multiemployer Plan" means a Plan which is a multiemployer plan
as defined in Sections 3(37) or 4001(a)(3) of ERISA.

"Multiple Employer Plan" means a Plan which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and at least one employer
other than the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
are contributing sponsors.

"New Commitment Agreement" means a New Commitment Agreement substantially
in the form of Schedule 3.4(b), as executed pursuant to Section
3.4(b).

"Note" or "Notes" means any Revolving Note, any Competitive
Note or the Swingline Note, as the context may require.

"Notice of Borrowing" means a written notice of borrowing in
substantially the form of Schedule 2.1(b)(i), as required by Section
2.1(b)(i).

"Notice of Extension/Conversion" means the written notice of
extension or conversion in substantially the form of Schedule 3.2,
as required by Section 3.2.

"Participation Interest" means, the extension of credit by a
Lender by way of a purchase of a participation in any Swingline Loans as
provided in Section 2.3(b)(iii) or in any Loans as provided in Section
3.13.

"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any successor thereof.

"Permitted Liens" means:

 

(i) Liens in favor of the Administrative Agent on behalf of the Lenders;
(ii) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or Liens for
taxes being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been established
(and as to which the Property subject to any such Lien is not yet subject
to foreclosure, sale or loss on account thereof);

(iii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or
pursuant to customary reservations or retentions of title arising in the
ordinary course of business, provided that any such Liens which
are material secure only amounts not yet due and payable or, if due and
payable, are unfiled and no other action has been taken to enforce the
same or are being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been established
(and as to which the Property subject to any such Lien is not yet subject
to foreclosure, sale or loss on account thereof);

(iv) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made by the Borrower and its Subsidiaries in the ordinary course
of business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of tenders,
statutory obligations, bids, leases, government contracts, performance
and return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);

(v) Liens in connection with attachments or judgments (including judgment
or appeal bonds) provided that the judgments secured shall, within
30 days after the entry thereof, have been discharged or execution thereof
stayed pending appeal, or shall have been discharged within 30 days after
the expiration of any such stay;

(vi) easements, rights-of-way, restrictions (including zoning restrictions),
minor defects or irregularities in title and other similar charges or encumbrances
not, in any material respect, impairing the use of the encumbered Property
for its intended purposes;

(vii) leases or subleases granted to others not interfering in any material
respect with the business of the Borrower and its Subsidiaries taken as
a whole;

(viii) Liens in favor of customs and revenue authorities arising as
a matter of law to secure payment of customs duties in connection with
the importation of goods;

(ix) Liens on assets at the time such assets are acquired by the Borrower
or any Subsidiary in accordance with Section 7.3(d); provided that
such Liens are not created in contemplation of such acquisition;

(x) Liens on assets of any Person at the time such Person becomes a
Subsidiary in accordance with Section 7.3(d); provided that such
Liens are not created in contemplation of such Person becoming a Subsidiary;

(xi) normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;

(xii) Liens on receivables sold pursuant to a Commercial Credit Business
Arrangement;

(xiii) Liens on inventory held by the Borrower or any of its Subsidiaries
under consignment;

(xiv) Liens on any inventory of the Borrower or any of its Subsidiaries
in favor of a vendor of such inventory, arising in the normal course of
business upon its sale to the Borrower or any such Subsidiary; and

(xv) other Liens on Property of the Borrower and its Subsidiaries, so
long as the Borrower and its Subsidiaries own at all times Property (a)
unencumbered by any Liens other than Liens permitted by clauses (i) through
(xiv) above and (b), having an aggregate fair market value of at least
$2,000,000,000.

 

"Person" means any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
(whether or not incorporated) or any Governmental Authority.

"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.

"Pricing Level" means the applicable pricing level for the Applicable
Percentage shown in Schedule 1.1.

"Prime Rate" means the rate of interest per annum publicly announced
or established from time to time by Bank of America as its prime rate in
effect at its principal office in Charlotte, North Carolina, with each
change in the Prime Rate being effective on the date such change is publicly
announced as effective (it being understood and agreed that the Prime Rate
is a reference rate used by Bank of America in determining interest rates
on certain loans and is not intended to be the lowest rate of interest
charged on any extension of credit by Bank of America to any debtor).

"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.

"Quoted Rate" means, with respect to any Quoted Rate Swingline
Loan, the fixed percentage rate per annum offered by the Swingline Lender
and accepted by the Borrower with respect to such Swingline Loan as provided
in accordance with the provisions of Section 2.3.

"Quoted Rate Swingline Loan" means a Swingline Loan bearing interest
at a Quoted Rate.

"Register" shall have the meaning given such term in Section
10.3(c).

"Regulation D, T, U, or X" means Regulation D, T, U or X, respectively,
of the Board of Governors of the Federal Reserve System as from time to
time in effect and any successor to all or a portion thereof.

"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing
into the environment (including the abandonment or discarding of barrels,
containers and other closed receptacles containing any Materials of Environmental
Concern).

"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice requirement
has been waived by regulation.

"Required Lenders" means, at any time, Lenders which are then
in compliance with their obligations hereunder (as determined by the Administrative
Agent) and holding in the aggregate at least 51% of (i) the Commitment
Percentages or (ii) if the Commitments have been terminated, the outstanding
Loans and Participation Interests.

"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its material property
is subject.

"Revolving Commitment" means, with respect to each Lender, the
commitment of such Lender in an aggregate principal amount at any time
outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.1(a) (as such amount may be reduced or increased from
time to time in accordance with the provisions of this Credit Agreement),
(i) to make Revolving Loans in accordance with the provisions of Section
2.1(a) and (ii) to purchase participation interests in the Swingline Loans
in accordance with the provisions of Section 2.3(b)(iii).

"Revolving Committed Amount" shall have the meaning assigned
to such term in Section 2.1(a).

"Revolving Loans" shall have the meaning assigned to such term
in Section 2.1(a).

"Revolving Note" means a promissory note of the Borrower in favor
of a Lender delivered pursuant to Section 2.1(e) and evidencing the Revolving
Loans of such Lender, as such promissory note may be amended, modified,
restated or replaced from time to time.

"S&P" means Standard & Poor's Ratings Group, a division
of McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.

"SPV" has the meaning set forth in Section 10.3(e).

"Single Employer Plan" means any Plan which is covered by Title
IV of ERISA, but which is not a Multiemployer Plan or a Multiple Employer
Plan.

"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or classes of such
corporation shall have or might have voting power by reason of the happening
of any contingency) is at the time owned by such Person directly or indirectly
through Subsidiaries, and (b) any partnership, association, joint venture
or other entity in which such Person directly or indirectly through Subsidiaries
has more than 50% equity interest at any time.

"Swingline Commitment" means the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any
time outstanding of up to the Swingline Committed Amount.

"Swingline Committed Amount" shall have the meaning assigned
to such term in Section 2.3(a).

                   
"Swingline Lender" means Bank of America.

"Swingline Loan" shall have the meaning assigned to such term
in Section 2.3(a).
"Swingline Note" means the promissory note of the Borrower in
favor of the Swingline Lender in the original principal amount of $25,000,000,
as such promissory note may be amended, modified, restated or replaced
from time to time.

"Syndication Agent" shall have the meaning assigned to such term
in the heading hereof together with any successors and assigns.

"Termination Date" means May 23, 2005.

"Utilization Fee" shall have the meaning set forth in Section
3.5(c).

"Utilization Fee Period" shall have the meaning assigned to such
term in Section 3.5(c).

1.2 Computation of Time Periods.

For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to
but excluding."

1.3 Accounting Terms.

Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance
with this Credit Agreement shall (except as otherwise expressly provided
herein) be made by application of GAAP applied on a basis consistent with
the most recent annual or quarterly financial statements delivered pursuant
to Section 6.1 hereof (or, prior to the delivery of the first financial
statements pursuant to Section 6.1 hereof, consistent with the financial
statements as at August 28, 1999); provided, however, if
(a) the Borrower shall object to determining such compliance on such basis
at the time of delivery of such financial statements due to any change
in GAAP or the rules promulgated with respect thereto or (b) the Administrative
Agent or the Required Lenders shall so object in writing within 30 days
after delivery of such financial statements, then such calculations shall
be made on a basis consistent with the most recent financial statements
delivered by the Borrower to the Lenders as to which no such objection
shall have been made.

 

 




SECTION 2

CREDIT FACILITIES


2.1 Revolving Loans.

(a) Revolving Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth
herein, each Lender severally agrees to make available to the Borrower
revolving credit loans requested by the Borrower in Dollars ("Revolving
Loans") up to such Lender's Revolving Commitment from time to time
from the Closing Date until the Termination Date, or such earlier date
as the Revolving Commitments shall have been terminated as provided herein
for the purposes hereinafter set forth; provided, however,
that the sum of the aggregate principal amount of outstanding Revolving
Loans shall not exceed SIX HUNDRED FIFTY MILLION DOLLARS ($650,000,000.00)
(as such aggregate maximum amount may be reduced or increased from time
to time as provided in Sections 3.3 and 3.4, the "Revolving Committed
Amount"); provided, further, (i) with regard to each
Lender individually, such Lender's outstanding Revolving Loans shall not
exceed such Lender's Revolving Commitment, and (ii) with regard to the
Lenders collectively, the aggregate principal amount of outstanding Revolving
Loans plus the aggregate principal amount of outstanding Competitive
Loans plus the aggregate principal amount of outstanding Swingline
Loans shall not exceed the Revolving Committed Amount. Revolving Loans
may consist of Base Rate Loans or Eurodollar Loans, or a combination thereof,
as the Borrower may request, and may be repaid and reborrowed in accordance
with the provisions hereof; provided, however, that no more
than 25 Eurodollar Loans shall be outstanding hereunder at any time. For
purposes hereof, Eurodollar Loans with different Interest Periods shall
be considered as separate Eurodollar Loans, even if they begin on the same
date, although borrowings, extensions and conversions may, in accordance
with the provisions hereof, be combined at the end of existing Interest
Periods to constitute a new Eurodollar Loan with a single Interest Period.
Revolving Loans hereunder may be repaid and reborrowed in accordance with
the provisions hereof.

(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower shall request a Revolving
Loan borrowing by written notice (or telephone notice promptly confirmed
in writing) to the Administrative Agent not later than 11:30 A.M. (Charlotte,
North Carolina time) on the Business Day of the requested borrowing in
the case of Base Rate Loans, and not later than 2:00 P.M. (Charlotte, North
Carolina time) on the third Business Day prior to the date of the requested
borrowing in the case of Eurodollar Loans. Each such request for borrowing
shall be irrevocable, executed by a Financial Officer of the Borrower and
shall specify (A) that a Revolving Loan is requested, (B) the date of the
requested borrowing (which shall be a Business Day), (C) the aggregate
principal amount to be borrowed, and (D) whether the borrowing shall be
comprised of Base Rate Loans, Eurodollar Loans or a combination thereof,
and if Eurodollar Loans are requested, the Interest Period(s) therefor.
If the Borrower shall fail to specify in any such Notice of Borrowing (I)
an applicable Interest Period in the case of a Eurodollar Loan, then such
notice shall be deemed to be a request for an Interest Period of one month,
or (II) the type of Revolving Loan requested, then such notice shall be
deemed to be a request for a Base Rate Loan hereunder. The Administrative
Agent shall give notice to each affected Lender promptly upon receipt of
each Notice of Borrowing pursuant to this Section 2.1(b)(i), the contents
thereof and each such Lender's share of any borrowing to be made pursuant
thereto.
(ii) Minimum Amounts. Each Eurodollar Loan or Base Rate Loan
that is a Revolving Loan shall be in a minimum aggregate principal amount
of $5,000,000 and integral multiples of $1,000,000 in excess thereof (or
the remaining amount of the Revolving Committed Amount, if less).

(iii) Advances. Each Lender will make its Commitment Percentage
of each Revolving Loan borrowing available to the Administrative Agent
for the account of the Borrower as specified in Section 3.14(a),
or in such other manner as the Administrative Agent may specify in writing,
by 1:00 P.M. (Charlotte, North Carolina time) on the date specified in
the applicable Notice of Borrowing in Dollars and in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent by crediting the
Master Account with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.

 

(c) Repayment. The principal amount of all Revolving Loans shall
be due and payable in full on the Termination Date.

(d) Interest. Subject to the provisions of Section 3.1,

 

(i) Base Rate Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Base Rate Loans, such Base Rate
Loans shall bear interest at a per annum rate equal to the Base Rate plus
the Applicable Percentage; and
(ii) Eurodollar Loans. During such periods as Revolving Loans
shall be comprised in whole or in part of Eurodollar Loans, such Eurodollar
Loans shall bear interest at a per annum rate equal to the Eurodollar Rate
plus
the Applicable Percentage.

 

Interest on Revolving Loans shall be payable in arrears on each applicable
Interest Payment Date (or at such other times as may be specified herein).

(e) Revolving Notes. The Revolving Loans made by each Lender
shall be evidenced by a duly executed promissory note of the Borrower to
such Lender in an original principal amount equal to such Lender's Revolving
Commitment and in substantially the form of Schedule 2.1(e).

2.2 Competitive Loan Subfacility.

(a) Competitive Loans. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, the
Borrower may, from time to time from the Closing Date until the Termination
Date, request and each Lender may, in its sole discretion, agree to make,
Competitive Loans in Dollars to the Borrower; provided, however,
that (i) the aggregate principal amount of outstanding Competitive Loans
shall not at any time exceed the Revolving Committed Amount, and (ii) the
sum of the aggregate principal amount of outstanding Revolving Loans plus
the aggregate principal amount of outstanding Competitive Loans plus
the aggregate principal amount of outstanding Swingline Loans shall not
at any time exceed the Revolving Committed Amount. Each Competitive Loan
shall be not less than $10,000,000 in the aggregate and integral multiples
of $1,000,000 in excess thereof (or the remaining portion of the Revolving
Committed Amount, if less).
(b) Competitive Bid Requests. The Borrower may solicit by making
a written or telefax request to all of the Lenders for a Competitive Loan.
To be effective, such request must be received by each of the Lenders by
such time as determined by each such Lender in accordance with such Lender's
customary practices (in any event not to be later than 2:00 P.M. (Charlotte,
North Carolina time)) one Business Day prior to the date of the requested
borrowing and must specify (i) that a Competitive Loan is requested, (ii)
the amount of such Competitive Loan and (iii) the Interest Period for such
Competitive Loan.

(c) Competitive Bids. Upon receipt of a request by the Borrower
for a Competitive Loan, each Lender may, in its sole discretion, submit
a Competitive Bid containing an offer to make a Competitive Loan in an
amount up to the amount specified in the related request for Competitive
Loans. Such Competitive Bid shall be submitted to the Borrower by telephone
notice (to be immediately confirmed by telecopy) by such time as determined
by such Lender in accordance with such Lender's customary practices (in
any event not to be later than 10:30 A.M. (Charlotte, North Carolina time))
on the date of the requested Competitive Loan. Competitive Bids so made
shall be irrevocable. Each Competitive Bid shall specify (i) the date of
the proposed Competitive Loan, (ii) the maximum and minimum principal amounts
of the Competitive Loan for which such offer is being made (which may be
for all or a part of (but not more than) the amount requested by the Borrower),
(iii) the applicable Competitive Bid Rate, and (iv) the applicable Interest
Period.

(d) Acceptance of Competitive Bids. The Borrower may, before
such time as determined by the applicable Lender in accordance with such
Lender's customary practices (in any event until 1:00 P.M. (Charlotte,
North Carolina time)) on the date of the requested Competitive Loan, accept
any Competitive Bid by giving the applicable Lender and the Administrative
Agent telephone notice (immediately confirmed in writing) of (i) the Lender
or Lenders whose Competitive Bid(s) is/are accepted, (ii) the principal
amount of the Competitive Bid(s) so accepted and (iii) the Interest Period
of the Competitive Bid(s) so accepted. The Borrower may accept any Competitive
Bid in whole or in part; provided, however, that (a) the principal amount
of each Competitive Loan may not exceed the maximum amount offered in the
Competitive Bid and may not be less than the minimum amount offered in
the Competitive Bid, (b) the principal amount of each Competitive Loan
may not exceed the total amount requested pursuant to subsection (a) above,
(c) the Borrower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if it has decided to reject a Competitive Bid made
at a lower Competitive Bid Rate and (d) if the Borrower shall accept a
Competitive Bid or Bids made at a particular Competitive Bid Rate but the
amount of such Competitive Bid or Bids shall cause the total amount of
Competitive Bids to be accepted by the Borrower to exceed the total amount
requested pursuant to subsection (a) above, then the Borrower shall accept
a portion of such Competitive Bid or Bids in an amount equal to the total
amount requested pursuant to subsection (a) above less the amount of other
Competitive Bids accepted with respect to such request, which acceptance,
in the case of multiple Competitive Bids at the same Competitive Bid Rate,
shall be made pro rata in accordance with each such Competitive Bid at
such Competitive Bid Rate. Competitive Bids so accepted by the Borrower
shall be irrevocable.

(e) Funding of Competitive Loans. Upon acceptance by the Borrower
pursuant to subsection (d) above of all or a portion of any Lender's Competitive
Bid, such Lender shall, before such time as determined by such Lender in
accordance with such Lender's customary practices, on the date of the requested
Competitive Loan, make such Competitive Loan available by crediting the
Master Account with the amount of such Competitive Loan.

(f) Competitive Notes. The Competitive Loans of each Lender shall
be evidenced by a single Competitive Note duly executed on behalf of the
Borrower, dated the date hereof, in substantially the form of Schedule
2.2(f), payable to the order of such Lender.

(g) Repayment of Competitive Loans. The Borrower shall repay
to each Lender which has made a Competitive Loan on the last day of the
Interest Period for such Competitive Loan the then unpaid principal amount
of such Competitive Loan. Unless the Borrower shall repay the maturing
Competitive Loan or give to notice to the Administrative Agent of its intent
to otherwise repay such Loan not later than 11:30 A.M. (Charlotte, North
Carolina time) on the last day of the Interest Period, the Borrower shall
be deemed to have requested a Revolving Loan advance comprised of Base
Rate Loans in the amount of the maturing Competitive Loan, the proceeds
of which will be used to repay such Competitive Loan.

(h) Interest on Competitive Loans. The Borrower shall pay interest
to each Lender on the unpaid principal amount of each Competitive Loan
from and including the date of such Competitive Loan to but excluding the
stated maturity date thereof, at the applicable Competitive Bid Rate for
such Competitive Loan (computed on the basis of the actual number of days
elapsed over a year of 360 days). Interest on Competitive Loans shall be
payable in arrears on each applicable Interest Payment Date (or at such
other times as may be specified herein).

(i) Limitation on Number of Competitive Loans. The Borrower shall
not request a Competitive Loan if, assuming the maximum amount of Competitive
Loans so requested is borrowed as of the date of such request, the sum
of the aggregate principal amount of outstanding Revolving Loans plus
the aggregate principal amount of outstanding Competitive Loans plus
the aggregate principal amount of outstanding Swingline Loans would exceed
the aggregate Revolving Committed Amount.

(j) Change in Procedures for Requesting Competitive Loans. The
Borrower and the Lenders hereby agree that, notwithstanding any other provision
to the contrary contained in this Credit Agreement, upon mutual agreement
of the Administrative Agent and the Borrower and written notice by the
Administrative Agent to the Lenders, all further requests by the Borrower
for Competitive Loans shall be made by the Borrower to the Lenders through
the Administrative Agent in accordance with such procedures as shall be
prescribed by the Administrative Agent and acceptable to the Borrower and
each Lender.

2.3 Swingline Loan Subfacility.

(a) Swingline Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties herein set
forth, the Swingline Lender, in its individual capacity, agrees to make
certain revolving credit loans requested by the Borrower in Dollars to
the Borrower (each a "Swingline Loan" and, collectively, the "Swingline
Loans") from time to time from the Closing Date until the Termination
Date for the purposes hereinafter set forth; provided, however,
(i) the aggregate principal amount of Swingline Loans outstanding at any
time shall not exceed TWENTY-FIVE MILLION DOLLARS ($25,000,000.00)
(the "Swingline Committed Amount"), and (ii) the aggregate principal
amount of outstanding Revolving Loans plus the aggregate principal
amount of outstanding Competitive Loans plus the aggregate principal
amount of outstanding Swingline Loans shall not exceed the Revolving Committed
Amount. Swingline Loans hereunder shall be made as Base Rate Loans or Quoted
Rate Swingline Loans as the Borrower may request in accordance with the
provisions of this Section 2.3, and may be repaid and reborrowed in accordance
with the provisions hereof.
(b) Swingline Loan Advances.

 

(i) Notices; Disbursement. Whenever the Borrower desires a
Swingline Loan advance hereunder it shall give written notice (or telephone
notice promptly confirmed in writing) to the Swingline Lender not later
than 2:00 P.M. (Charlotte, North Carolina time) on the Business Day of
the requested Swingline Loan advance. Each such notice shall be irrevocable
and shall specify (A) that a Swingline Loan advance is requested, (B) the
date of the requested Swingline Loan advance (which shall be a Business
Day) and (C) the principal amount of the Swingline Loan advance requested.
Each Swingline Loan shall be made as a Base Rate Loan or a Quoted Rate
Swingline Loan and shall have such maturity date as the Swingline Lender
and the Borrower shall agree upon receipt by the Swingline Lender of any
such notice from the Borrower. The Swingline Lender shall initiate the
transfer of funds representing the Swingline Loan advance to the Master
Account by 3:30 P.M. (Charlotte, North Carolina time) on the Business Day
of the requested borrowing.
(ii) Minimum Amounts. Each Swingline Loan advance shall be in
a minimum principal amount of $250,000 and in integral multiples of $100,000
in excess thereof (or the remaining amount of the Swingline Committed Amount,
if less).

(iii) Repayment of Swingline Loans. The principal amount of all
Swingline Loans shall be due and payable on the earlier of (A) the maturity
date agreed to by the Swingline Lender and the Borrower with respect to
such Loan (which maturity date shall not be a date more than seven (7)
Business Days from the date of advance thereof) or (B) the Termination
Date. The Swingline Lender may, at any time, in its sole discretion, by
written notice to the Borrower and the Lenders, demand repayment of its
Swingline Loans by way of a Revolving Loan advance, in which case the Borrower
shall be deemed to have requested a Revolving Loan advance comprised solely
of Base Rate Loans in the amount of such Swingline Loans; provided,
however,
that any such demand shall be deemed to have been given one Business Day
prior to the Termination Date and on the date of the occurrence of any
Event of Default described in Section 8.1 and upon acceleration of the
indebtedness hereunder and the exercise of remedies in accordance with
the provisions of Section 8.2. Each Lender hereby irrevocably agrees to
make its pro rata share of each such Revolving Loan in the amount, in the
manner and on the date specified in the preceding sentence notwithstanding
(I) the amount of such borrowing may not comply with the minimum amount
for advances of Revolving Loans otherwise required hereunder, (II) whether
any conditions specified in Section 4.2 are then satisfied, (III) whether
a Default or an Event of Default then exists, (IV) failure of any such
request or deemed request for Revolving Loan to be made by the time otherwise
required hereunder, (V) whether the date of such borrowing is a date on
which Revolving Loans are otherwise permitted to be made hereunder or (VI)
any termination of the Commitments relating thereto immediately prior to
or contemporaneously with such borrowing. In the event that any Revolving
Loan cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to the Borrower), then each Lender
hereby agrees that it shall forthwith purchase (as of the date such borrowing
would otherwise have occurred, but adjusted for any payments received from
the Borrower on or after such date and prior to such purchase) from the
Swingline Lender such participations in the outstanding Swingline Loans
as shall be necessary to cause each such Lender to share in such Swingline
Loans ratably based upon its Commitment Percentage (determined before giving
effect to any termination of the Commitments pursuant to Section 3.4),
provided
that (A) all interest payable on the Swingline Loans shall be for the account
of the Swingline Lender until the date as of which the respective participation
is purchased and (B) at the time any purchase of participations pursuant
to this sentence is actually made, the purchasing Lender shall be required
to pay to the Swingline Lender, to the extent not paid to the Swingline
Lender by the Borrower in accordance with the terms of subsection (c)(ii)
hereof, interest on the principal amount of participation purchased for
each day from and including the day upon which such borrowing would otherwise
have occurred to but excluding the date of payment for such participation,
at the rate equal to the Federal Funds Rate.

 

(c) Interest on Swingline Loans.

 

(i) Subject to the provisions of Section 3.1, each Swingline Loan
shall bear interest as follows:

 
(A) Base Rate Loans. If such Swingline Loan is a Base Rate
Loan, at a per annum rate (computed on the basis of the actual number of
days elapsed over a year of 365 days) equal to the Base Rate plus
the Applicable Percentage.
(B) Quoted Rate Swingline Loans. If such Swingline Loan is a
Quoted Rate Swingline Loan, at a per annum rate (computed on the basis
of the actual number of days elapsed over a year of 360 days) equal to
the Quoted Rate applicable thereto.

 

Notwithstanding any other provision to the contrary set forth in this Credit
Agreement, in the event that the principal amount of any Quoted Rate Swingline
Loan is not repaid on the last day of the Interest Period for such Loan,
then such Loan shall be automatically converted into a Base Rate Loan at
the end of such Interest Period.

(ii) Payment of Interest. Interest on Swingline Loans shall be
payable in arrears on each applicable Interest Payment Date (or at such
other times as may be specified herein).

 

(d) Swingline Note. The Swingline Loans shall be evidenced by a
duly executed promissory note of the Borrower to the Swingline Lender in
an original principal amount equal to the Swingline Committed Amount substantially
in the form of Schedule 2.3(d).



SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITIES


3.1 Default Rate.

Upon the occurrence, and during the continuance, of an Event of Default,
the principal of and, to the extent permitted by law, interest on the Loans
and any other amounts owing hereunder or under the other Credit Documents
shall bear interest, payable on demand, at a per annum rate 1% greater
than the rate which would otherwise be applicable (or if no rate is applicable,
whether in respect of interest, fees or other amounts, then 1% greater
than the Base Rate).

3.2 Extension and Conversion.

Subject to the terms of Section 4.2, the Borrower shall have the option,
on any Business Day, to extend existing Loans into a subsequent permissible
Interest Period or to convert Loans into Loans of another interest rate
type; provided, however, that (a) except as provided in Section
3.8, Eurodollar Loans may be converted into Base Rate Loans only on the
last day of the Interest Period applicable thereto, (b) Eurodollar Loans
may be extended, and Base Rate Loans may be converted into Eurodollar Loans,
only if no Default or Event of Default is in existence on the date of extension
or conversion, (c) Loans extended as, or converted into, Eurodollar Loans
shall be subject to the terms of the definition of "Interest Period"
set forth in Section 1.1 and shall be in such minimum amounts as provided
in Section 2.1(b)(ii), (d) no more than 25 Eurodollar Loans shall be outstanding
hereunder at any time (it being understood that, for purposes hereof, Eurodollar
Loans with different Interest Periods shall be considered as separate Eurodollar
Loans, even if they begin on the same date, although borrowings, extensions
and conversions may, in accordance with the provisions hereof, be combined
at the end of existing Interest Periods to constitute a new Eurodollar
Loan with a single Interest Period), (e) any request for extension or conversion
of a Eurodollar Loan which shall fail to specify an Interest Period shall
be deemed to be a request for an Interest Period of one month and (f) Competitive
Loans and Swingline Loans may not be extended or converted pursuant to
this Section 3.2. Each such extension or conversion shall be effected by
a Financial Officer of the Borrower giving a Notice of Extension/Conversion
(or telephone notice promptly confirmed in writing) to the Administrative
Agent prior to 11:30 A.M. (Charlotte, North Carolina time) on the Business
Day of, in the case of the extension of Base Rate Loans and prior to 2:00
P.M. (Charlotte, North Carolina time) on the third Business Day prior to,
in the case of the extension of a Eurodollar Loan as, or conversion of
a Base Rate Loan into, a Eurodollar Loan, the date of the proposed extension
or conversion, specifying the date of the proposed extension or conversion,
the Loans to be so extended or converted, the types of Loans into which
such Loans are to be converted and, if appropriate, the applicable Interest
Periods with respect thereto. Each request for extension or conversion
shall be irrevocable and shall constitute a representation and warranty
by the Borrower of the matters specified in subsections (b), (c), (d) and
(e) of Section 4.2. In the event the Borrower fails to request extension
or conversion of any Eurodollar Loan in accordance with this Section, or
any such conversion or extension is not permitted or required by this Section,
then such Eurodollar Loan shall be automatically converted into a Base
Rate Loan at the end of the Interest Period applicable thereto. The Administrative
Agent shall give each Lender notice as promptly as practicable of any such
proposed extension or conversion affecting any Loan.

3.3 Prepayments.

(a) Voluntary Prepayments. The Borrower shall have the right
to prepay Loans (other than Competitive Bid Loans, which may not be prepaid)
in whole or in part from time to time, subject to Section 3.11, but otherwise
without premium or penalty; provided, however, that (i) Eurodollar
Loans may only be prepaid on three Business Days prior written notice
to the Administrative Agent and specifying the applicable Loans to be prepaid;
(ii) any prepayment of Eurodollar Loans or Quoted Rate Swingline Loans
will be subject to Section 3.11; and (iii) each such partial prepayment
of Loans shall be (A) in the case of Revolving Loans, in a minimum principal
amount of $5,000,000 and multiples of $1,000,000 in excess thereof (or,
if less, the full remaining amount of the Revolving Loan being prepaid)
and (B) in the case of Swingline Loans, in a minimum principal amount of
$250,000 and multiples of $100,000 in excess thereof (or, if less, the
full remaining amount of the then outstanding Swingline Loans). Subject
to the foregoing terms, amounts prepaid under this Section 3.3(a) shall
be applied as the Borrower may elect.
(b) Mandatory Prepayments.

 

(i) Commitment Limitation. If at any time, the sum of the aggregate
principal amount of outstanding Revolving Loans plus the aggregate
principal amount of outstanding Competitive Loans plus the aggregate
principal amount of outstanding Swingline Loans shall exceed the Revolving
Committed Amount, the Borrower promises to prepay immediately the outstanding
principal balance on the Revolving Loans and/or Competitive Loans in an
amount sufficient to eliminate such excess.
(ii) Debt and Equity Issuances. During any period in which the
Borrower has a senior unsecured (non-credit enhanced) long term debt rating
from S&P of below BBB- and a senior unsecured (non-credit enhanced)
long term debt rating from Moody's of below Baa3, immediately upon receipt
by the Borrower or any Subsidiary of proceeds from any Debt or Equity Issuance
(as defined below) the Borrower shall prepay the principal amount of Revolving
Loans outstanding under the Facilities in an aggregate amount equal to
50% of the net cash proceeds of such Debt or Equity Issuance. Such prepayment
shall (A) be applied pro rata to the Facilities (to the extent of outstanding
Revolving Loans under each Facility), (B) permanently reduce the Revolving
Committed Amount (and the Revolving Commitments of the Lenders on a pro
rata basis) on a Dollar for Dollar basis and (C) be accompanied by interest
on the principal amount prepaid through the date of prepayment. For purposes
hereof, "Debt or Equity Issuance" means the issuance by the Borrower
or any of its Subsidiaries (to a Person other than the Borrower or any
of its Subsidiaries) of (I) any Indebtedness for borrowed money in the
form of publicly issued or privately placed bonds or other debt securities
with a maturity of three years or greater or (II) any shares of capital
stock or other equity securities.

 

(c) General. All prepayments made pursuant to this Section 3.3 shall
(i) be subject to Section 3.11 and (ii) unless the Borrower shall specify
otherwise, be applied first to Base Rate Loans, if any, and then to Eurodollar
Loans in direct order of Interest Period maturities. Except as otherwise
set forth in subclause (b) above, amounts prepaid on the Revolving Loans
may be reborrowed in accordance with the provisions hereof.

3.4 Termination, Reduction and Increase of Revolving Committed Amount.

(a) Voluntary Reductions. The Borrower may from time to time
permanently reduce or terminate the Revolving Committed Amount in whole
or in part (in minimum aggregate amounts of $5,000,000 or in integral multiples
of $1,000,000 in excess thereof (or, if less, the full remaining amount
of the then applicable Revolving Committed Amount)) upon five Business
Days prior written notice to the Administrative Agent; provided,
however,
no such termination or reduction shall be made which would cause the aggregate
principal amount of outstanding Revolving Loans plus the aggregate
principal amount of outstanding Competitive Loans plus the aggregate
principal amount of outstanding Swingline Loans to exceed the Revolving
Committed Amount unless, concurrently with such termination or reduction,
the Revolving Loans and/or Competitive Loans are repaid to the extent necessary
to eliminate such excess. The Commitments of the Lenders shall automatically
terminate on the Termination Date. The Administrative Agent shall promptly
notify each affected Lender of receipt by the Administrative Agent of any
notice from the Borrower pursuant to this Section 3.4(a).
(b) Additional Commitments. The Borrower shall have the right
no more than once a year to increase the Facilities up to an aggregate
amount of $1,500,000,000 (with such increase to be applied pro rata to
the Facilities) without the consent of the Lenders, subject however to
the satisfaction of each of the following terms and conditions:

 

(i) to the knowledge of the Administrative Agent, no Default or Event
of Default shall exist and be continuing at the time of such increase;
(ii) concurrently with the Borrower's request for such increase hereunder,
the Borrower shall deliver to the Administrative Agent, an officer's certificate
substantially in the form of Schedule 6.1(c) certifying that no Default
or Event of Default has occurred and is continuing and demonstrating compliance
with each of the financial covenants set forth in Sections 6.10 and 6.11
both before and after giving effect to the increase requested hereunder;

(iii) such increase shall be allocated in the following order:

 

(A) first, to the existing Lenders consenting to an increase in the
amount of their Revolving Commitments; provided that (1) on or before
the tenth Business Day following notification of a requested increase in
the Revolving Committed Amount, each Lender shall notify the Borrower of
the desired increase, if any, in its Revolving Commitment and (2) if the
aggregate increases in the Revolving Commitments requested by the existing
Lenders shall exceed the requested increase in the Revolving Committed
Amount, the Revolving Commitments of such Lenders shall be increased on
a pro rata basis according to the existing Commitment Percentage of such
Lenders; and
(B) second, to any other commercial bank, financial institution or "accredited
investor" (as defined in Regulation D of the Securities and Exchange Commission)
reasonably acceptable to the Administrative Agent and the Borrower;

 

(iv) each Person providing a new Commitment shall execute a New Commitment
Agreement
substantially in the form of Schedule 3.4(b) hereto and, upon such
execution and the satisfaction of the other terms and conditions of this
Section 3.4(b), such Person shall thereupon become a party hereto and have
the rights and obligations of a Lender under this Credit Agreement as more
specifically provided in the New Commitment Agreement; and

(v) the Administrative Agent shall promptly notify each Lender of (A)
the new Revolving Committed Amount and (B) each Lender's Commitment Percentage,
in each case after giving effect to the one-time increase in Revolving
Commitment referred to in this Section 3.4(b).

 

On the date (which date shall be a Business Day) on which the increase
in the Revolving Committed Amount occurs the Administrative Agent and the
Lenders shall make adjustments among the Lenders with respect to the Revolving
Loans outstanding hereunder and under the 364-Day Revolver and amounts
of principal, interest, fees and other amounts paid or payable with respect
thereto as shall be necessary in order to reallocate among the Lenders
such outstanding amounts based on the new Commitment Percentages and to
otherwise carry out fully the terms of this Section 3.4(b). The Borrower
agrees that, in connection with any such increase in the Revolving Committed
Amount, it will promptly (i) provide to each Lender providing a new or
increased Revolving Commitment (upon surrender of the existing Revolving
Note of such Lender in the case of an existing Lender) a Revolving Note
in the amount of its new or increased (as applicable) Revolving Commitment
substantially in the form of the Revolving Note attached hereto as Schedule
2.1(e) (but, in the case of a new Revolving Note given to an existing
Lender that increases its Revolving Commitment, with notation thereon that
it is given in substitution for and replacement of the original Revolving
Note or any replacement notes thereof) and (ii) provide to each Lender
(upon surrender of the existing Competitive Note of such Lender in the
case of an existing Lender) a Competitive Note in the amount of the new
Revolving Committed Amount substantially in the form of the Competitive
Note attached hereto as Schedule 2.2(f) (but, in the case of a new
Competitive Note given to an existing Lender, with notation thereon that
it is given in substitution for and replacement of the original Competitive
Note or any replacement notes thereof). Each of the parties hereto acknowledges
and agrees that no Lender shall be obligated to increase its Revolving
Commitment pursuant to the terms of this Section 3.4(b).

(c) Termination Date. The Revolving Commitments of the Lenders
and the Swingline Commitment of the Swingline Lender shall automatically
terminate on the Termination Date. The Termination Date may, on an annual
basis at the request of the Borrower and in the sole discretion of each
Lender, be extended for an additional one year period pursuant to the written
consent of each Lender.

(d) General. The Borrower shall pay to the Administrative Agent
for the account of the Lenders in accordance with the terms of Section
3.5(a), on the date of each termination or reduction of the Revolving Committed
Amount, the Facility Fee accrued through the date of such termination or
reduction on the amount of the Revolving Committed Amount so terminated
or reduced.

3.5 Fees.

(a) Facility Fee. In consideration of the Revolving Commitments
of the Lenders hereunder, the Borrower agrees to pay to the Administrative
Agent for the account of each Lender a fee (the "Facility Fee")
on the Revolving Committed Amount computed at a per annum rate for each
day during the applicable Facility Fee Calculation Period (hereinafter
defined) equal to the Applicable Percentage in effect from time to time.
The Facility Fee shall commence to accrue on the Closing Date and shall
be due and payable in arrears on the last Business Day of each March, June,
September and December (and any date that the Revolving Committed Amount
is reduced or increased as provided in Section 3.4 and the Termination
Date) for the immediately preceding quarter (or portion thereof) (each
such quarter or portion thereof for which the Facility Fee is payable hereunder
being herein referred to as a "Facility Fee Calculation Period"),
beginning with the first of such dates to occur after the Closing Date.
(b) Administrative Fees. The Borrower agrees to pay to the Administrative
Agent, for its own account, the fees referred to in the Administrative
Agent's Fee Letter (collectively, the "Administrative Agent's Fees").

(c) Utilization Fee. During such periods as the aggregate principal
amount of all outstanding Loans is greater than or equal to 33% of the
Revolving Committed Amount (each a "Utilization Fee Period"), the
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a fee (the "Utilization Fee") on all Loans outstanding during
each such Utilization Fee Period computed at a per annum rate for each
day during such period equal to the Applicable Percentage for the Utilization
Fee in effect from time to time. The Utilization Fee shall be due and payable
in arrears on the last Business Day of each March, June, September and
December for all Utilization Fee Periods occurring during the immediately
preceding quarter (or portion thereof), beginning with the first of such
dates to occur after the Closing Date.

3.6 Capital Adequacy.

If any Lender determines the amount of capital required or expected
to be maintained by such Lender, any Lending Installation of such Lender
or any corporation controlling such Lender is increased as a result of
a Change, then, within 15 days of demand by such Lender, the Borrower shall
pay such Lender the amount necessary to compensate for any shortfall in
the rate of return on the portion of such increased capital which such
Lender determines is attributable to this Credit Agreement, its Loans or
its obligation to make Loans hereunder (after taking into account such
Lender's policies as to capital adequacy). "Change" means (i) any change
after the Closing Date in the Risk-Based Capital Guidelines or (ii) any
adoption of or change in any other law, governmental or quasi-governmental
rule, regulation, policy, guideline, interpretation, or directive (whether
or not having the force of law) after the Closing Date which affects the
amount of capital required or expected to be maintained by any Lender or
any Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect
in the United States on the Closing Date, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled "International
Convergence of Capital Measurements and Capital Standards," including transition
rules, and any amendments to such regulations adopted prior to the Closing
Date.

3.7 Inability To Determine Interest Rate.

If prior to the first day of any Interest Period, the Administrative
Agent shall have reasonably determined that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist
for ascertaining the Eurodollar Rate for such Interest Period, the Administrative
Agent shall give telecopy or telephonic notice thereof to the Borrower
and the Lenders as soon as practicable thereafter. If such notice is given
(a) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans and (b) any Loans that
were to have been converted on the first day of such Interest Period to
or continued as Eurodollar Loans shall be converted to or continued as
Base Rate Loans. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loans shall be made or continued as such,
nor shall the Borrower have the right to convert Base Rate Loans to Eurodollar
Loans.

3.8 Illegality.

Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof occurring after the Closing Date shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this Credit
Agreement, (a) such Lender shall promptly give written notice of such circumstances
to the Borrower and the Administrative Agent (which notice shall be withdrawn
whenever such circumstances no longer exist), (b) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert a Base Rate Loan to Eurodollar Loans shall forthwith be
canceled and, until such time as it shall no longer be unlawful for such
Lender to make or maintain Eurodollar Loans, such Lender shall then have
a commitment only to make a Base Rate Loan when a Eurodollar Loan is requested
and (c) such Lender's Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Base Rate Loans on the respective last
days of the then current Interest Periods with respect to such Loans or
within such earlier period as required by law. If any such conversion of
a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to
such Lender such amounts, if any, as may be required pursuant to Section
3.11.

3.9 Yield Protection.

If any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law),
or any interpretation thereof, or the compliance of any Lender therewith,

(a) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due from the Borrower
(excluding federal taxation of the overall net income of any Lender or
applicable Lending Installation), or changes the basis of taxation of payments
to any Lender in respect of its Loans or other amounts due it hereunder;
(b) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirements against assets
of, deposits with or for the account of, or credit extended by, any Lender
or any applicable Lending Installation (other than reserves and assessments
taken into account in determining the Base Rate);

and the result of which is to increase the cost to any Lender of making,
funding or maintaining loans or reduces any amount receivable by any Lender
or any applicable Lending Installation in connection with loans, or requires
any Lender or any applicable Lending Installation to make any payment calculated
by reference to the amount of loans held or interest received by it, by
an amount deemed material by such Lender;

then, within 15 days of demand by such Lender, the Borrower shall pay
such Lender that portion of such increased expense incurred or reduction
in an amount received which such Lender determines is attributable to making,
funding and maintaining its Loans and its Commitments. This covenant shall
survive the termination of this Credit Agreement and the payment of the
Loans and all other amounts payable hereunder.

3.10 Withholding Tax Exemption.

Each Lender that is not incorporated under the laws of the United States
of America or a state thereof shall:

(a) (i) on or before the date of any payment by the Borrower under
this Credit Agreement or Notes to such Lender, deliver to the Borrower
and the Administrative Agent (A) two (2) duly completed copies of United
States Internal Revenue Service Form 1001 or 4224, or successor applicable
form, as the case may be, certifying that it is entitled to receive payments
under this Credit Agreement and any Notes without deduction or withholding
of any United States federal income taxes and (B) an Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may be, certifying
that it is entitled to an exemption from United States backup withholding
tax;
(ii) deliver to the Borrower and the Administrative Agent two (2) further
copies of any such form or certification on or before the date that any
such form or certification expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form previously delivered
by it to the Borrower; and

(iii) obtain such extensions of time for filing and complete such forms
or certifications as may reasonably be requested by the Borrower or the
Administrative Agent; or

 

(b) in the case of any such Lender that is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Internal Revenue Code, (i) represent to
the Borrower (for the benefit of the Borrower and the Administrative Agent)
that it is not a bank within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (ii) agree to furnish to the Borrower on or before
the date of any payment by the Borrower, with a copy to the Administrative
Agent two (2) accurate and complete original signed copies of Internal
Revenue Service Form W-8, or successor applicable form certifying to such
Lender's legal entitlement at the date of such certificate to an exemption
from U.S. withholding tax under the provisions of Section 881(c) of the
Internal Revenue Code with respect to payments to be made under this Credit
Agreement and any Notes (and to deliver to the Borrower and the Administrative
Agent two (2) further copies of such form on or before the date it expires
or becomes obsolete and after the occurrence of any event requiring a change
in the most recently provided form and, if necessary, obtain any extensions
of time reasonably requested by the Borrower or the Administrative Agent
for filing and completing such forms), and (iii) agree, to the extent legally
entitled to do so, upon reasonable request by the Borrower, to provide
to the Borrower (for the benefit of the Borrower and the Administrative
Agent) such other forms as may be reasonably required in order to establish
the legal entitlement of such Lender to an exemption from withholding with
respect to payments under this Credit Agreement and any Notes;

unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises
the Borrower and the Administrative Agent in either case. Each Person that
shall become a Lender or a participant of a Lender pursuant to subsection
10.3 shall, upon the effectiveness of the related transfer, be required
to provide all of the forms, certifications and statements required pursuant
to this subsection, provided that in the case of a participant of
a Lender the obligations of such participant of a Lender pursuant to this
Section 3.10 shall be determined as if the participant of a Lender were
a Lender except that such participant of a Lender shall furnish all such
required forms, certifications and statements to the Lender from which
the related participation shall have been purchased.

3.11 Indemnity.

The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur
(other than through such Lender's gross negligence or willful misconduct)
as a consequence of (a) default by the Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans or Quoted Rate Swingline
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Credit Agreement, (b) default by the Borrower
in making any prepayment of a Eurodollar Loan or a Quoted Rate Swingline
Loan after the Borrower has given a notice thereof in accordance with the
provisions of this Credit Agreement or (c) the making of a prepayment of
Eurodollar Loans or Quoted Rate Swingline Loans on a day which is not the
last day of an Interest Period with respect thereto. With respect to Eurodollar
Loans, such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the amount
so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert
or continue to the last day of the applicable Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable
rate of interest for such Eurodollar Loans provided for herein (excluding,
however, the Applicable Percentage included therein, if any) over (ii)
the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount
on deposit for a comparable period with leading banks in the interbank
Eurodollar market. The covenants of the Borrower set forth in this Section
3.11 shall survive the termination of this Credit Agreement and the payment
of the Loans and all other amounts payable hereunder.

3.12 Pro Rata Treatment.

Except to the extent otherwise provided herein:

(a) Loans. Each Loan, each payment or prepayment of principal
of any Loan, each payment of interest on the Loans, each payment of Facility
Fees, each payment of Utilization Fees, each reduction of the Revolving
Committed Amount and each conversion or extension of any Loan, shall be
allocated pro rata among the Lenders in accordance with the respective
principal amounts of their outstanding Loans and Participation Interests.
With respect to Competitive Loans, if the Borrower fails to specify the
particular Competitive Loan or Loans as to which any payment or other amount
should be applied and it is not otherwise clear as to the particular Competitive
Loan or Loans to which such payment or other amounts relate, or any such
payment or other amount is to be applied to Competitive Loans without regard
to any such direction by the Borrower, then each payment or prepayment
of principal on Competitive Loans and each payment of interest or other
amount on or in respect of Competitive Loans, shall be allocated pro rata
among the relevant Lenders of Competitive Loans in accordance with the
then outstanding amounts of their respective Competitive Loans.
(b) Advances. Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such Lender
will not make the amount that would constitute its ratable share of such
borrowing available to the Administrative Agent, the Administrative Agent
may assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. If such amount is
not made available to the Administrative Agent by such Lender within the
time period specified therefor hereunder, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the Federal Funds Rate for the period until such Lender makes
such amount immediately available to the Administrative Agent. A certificate
of the Administrative Agent submitted to any Lender with respect to any
amounts owing under this subsection shall be conclusive in the absence
of manifest error.

3.13 Sharing of Payments.

The Lenders agree among themselves that, in the event that any Lender
shall obtain payment in respect of any Loan or any other obligation owing
to such Lender under this Credit Agreement through the exercise of a right
of setoff, banker's lien or counterclaim, or pursuant to a secured claim
under Section 506 of Title 11 of the United States 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 or otherwise, or by any other means, in excess of its pro rata share
of such payment as provided for in this Credit Agreement, such Lender shall
promptly 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 Credit 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 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. The Borrower agrees
that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including setoff,
banker's lien or counterclaim, with respect to such participation as fully
as if such Lender were a holder of such Loan or other obligation in the
amount of such participation. Except as otherwise expressly provided in
this Credit Agreement, if any Lender or the Administrative Agent shall
fail to remit to the Administrative Agent or any other Lender an amount
payable by such Lender or the Administrative Agent to the Administrative
Agent or such other Lender pursuant to this Credit 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 Administrative 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 3.13 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 3.13 to share in the benefits of any recovery on such secured claim.

3.14 Payments, Computations, Etc.

(a) Except as otherwise specifically provided herein, all payments
hereunder (other than payments in respect of Competitive Loans) shall be
made to the Administrative Agent in dollars in immediately available funds,
without offset, deduction, counterclaim or withholding of any kind, at
the Administrative Agent's office specified in Schedule 2.1(a) not
later than 4:00 P.M. (Charlotte, North Carolina time) on the date when
due. Payments received after such time shall be deemed to have been received
on the next succeeding Business Day. The Administrative Agent may (but
shall not be obligated to) debit the amount of any such payment which is
not made by such time to any ordinary deposit account of the Borrower maintained
with the Administrative Agent (with notice to the Borrower). The Borrower
shall, at the time it makes any payment under this Credit Agreement (other
than payments in respect of Competitive Loans), specify to the Administrative
Agent the Loans, Fees, interest or other amounts payable by the Borrower
hereunder to which such payment is to be applied (and in the event that
it fails so to specify, or if such application would be inconsistent with
the terms hereof, the Administrative Agent shall distribute such payment
to the Lenders in such manner as the Administrative Agent may determine
to be appropriate in respect of obligations owing by the Borrower hereunder,
subject to the terms of Section 3.12(a)). The Administrative Agent will
distribute such payments to such Lenders, if any such payment is received
prior to 12:00 Noon (Charlotte, North Carolina time) on a Business Day
in like funds as received prior to the end of such Business Day and otherwise
the Administrative Agent will distribute such payment to such Lenders on
the next succeeding Business Day. All payments of principal and interest
in respect of Competitive Loans shall be made in accordance with the terms
of Section 2.2. Whenever any payment hereunder shall be stated to be due
on a day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day (subject to accrual of interest and
Fees for the period of such extension), except that in the case of Eurodollar
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
next preceding Business Day. Except as expressly provided otherwise herein,
all computations of interest and fees shall be made on the basis of actual
number of days elapsed over a year of 360 days, except with respect to
computation of interest on Base Rate Loans which (unless the Base Rate
is determined by reference to the Federal Funds Rate) shall be calculated
based on a year of 365 or 366 days, as appropriate. Interest shall accrue
from and include the date of borrowing, but exclude the date of payment.
(b) Allocation of Payments After Event of Default. Notwithstanding
any other provisions of this Credit Agreement to the contrary, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account
of the Loans, Fees or any other amounts outstanding under any of the Credit
Documents shall be paid over or delivered as follows:

 

FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation reasonable attorneys' fees) of the Administrative
Agent in connection with enforcing the rights of the Lenders under the
Credit Documents;
SECOND, to payment of any fees owed to the Administrative Agent;

THIRD, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation, reasonable attorneys' fees) of each of the
Lenders in connection with enforcing its rights under the Credit Documents
or otherwise with respect to amounts owing to such Lender;

FOURTH, to the payment of accrued fees and interest;

FIFTH, to the payment of the outstanding principal amount of the Loans;

SIXTH, to all other amounts and other obligations which shall have become
due and payable under the Credit Documents or otherwise and not repaid
pursuant to clauses "FIRST" through "FIFTH" above; and

SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully
entitled to receive such surplus.

 

In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to the
next succeeding category; and (ii) each of the Lenders shall receive an
amount equal to its pro rata share (based on the proportion that the then
outstanding Loans held by such Lender bears to the aggregate then outstanding
Loans) of amounts available to be applied pursuant to clauses "THIRD",
"FOURTH", "FIFTH" and "SIXTH" above.

3.15 Evidence of Debt.

(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from
time to time under this Credit Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and to promptly
update
its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 10.3(c) hereof, and a subaccount for each Lender, in which Register
and subaccounts (taken together) shall be recorded (i) the amount, type
and Interest Period of each such Loan hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from or for the account of the Borrower and each Lender's
share thereof. The Administrative Agent will make reasonable efforts to
maintain the accuracy of the subaccounts referred to in the preceding sentence
and to promptly update such subaccounts from time to time, as necessary.

(c) The entries made in the accounts, Register and subaccounts maintained
pursuant to subsection (b) of this Section 3.15 (and, if consistent with
the entries of the Administrative Agent, subsection (a)) shall be prima
facie, but not conclusive, evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain
any such account, such Register or such subaccount, as applicable, or any
error therein, shall not in any manner affect the obligation of the Borrower
to repay the Loans made by such Lender in accordance with the terms hereof.

3.16 Replacement of Lenders.

In the event any Lender delivers to the Borrower any notice in accordance
with Sections 3.6, 3.8, 3.9 or 3.10, then the Borrower shall have the right,
if no Default or Event of Default then exists, to replace such Lender (the
"Replaced Lender") with one or more additional banks or financial
institutions (collectively, the "Replacement Lender"), provided
that (A) at the time of any replacement pursuant to this Section 3.16,
the Replacement Lender shall enter into one or more assignment agreements
substantially in the form of Schedule 10.3(b) pursuant to, and in
accordance with the terms of, Section 10.3(b) (and with all fees payable
pursuant to said Section 10.3(b) to be paid by the Replacement Lender)
pursuant to which the Replacement Lender shall acquire all of the rights
and obligations of the Replaced Lender hereunder and, in connection therewith,
shall pay to the Replaced Lender in respect thereof an amount equal to
the sum of (a) the principal of, and all accrued interest on, all outstanding
Loans of the Replaced Lender, and (b) all accrued, but theretofore unpaid,
fees owing to the Replaced Lender pursuant to Section 3.5(a), and (B) all
obligations of the Borrower owing to the Replaced Lender (including all
obligations, if any, owing pursuant to Section 3.6, 3.8 or 3.9, but excluding
those obligations specifically described in clause (A) above in respect
of which the assignment purchase price has been, or is concurrently being
paid) shall be paid in full to such Replaced Lender concurrently with such
replacement.

 

 




SECTION 4

CONDITIONS


4.1 Closing Conditions.

The obligation of the Lenders to enter into this Credit Agreement and
to make the initial Loans shall be subject to satisfaction of the following
conditions (in form and substance acceptable to the Lenders):

(a) The Administrative Agent shall have received original counterparts
of this Credit Agreement executed by each of the parties hereto;
(b) The Administrative Agent shall have received an appropriate original
Revolving Note for each Lender, executed by the Borrower;

(c) The Administrative Agent shall have received an appropriate original
Competitive Note for each Lender, executed by the Borrower;

(d) The Administrative Agent shall have received an appropriate original
Swingline Note for the Swingline Lender, executed by the Borrower;

(e) The Administrative Agent shall have received all documents it may
reasonably request relating to the existence and good standing of the Borrower,
the corporate or other necessary authority for and the validity of the
Credit Documents, and any other matters relevant thereto, all in form and
substance reasonably satisfactory to the Administrative Agent;

(f) The Administrative Agent shall have received a legal opinion of
Harry L. Goldsmith, Esq., general counsel for the Borrower, dated as of
the Closing Date and substantially in the form of Schedule 4.1(f);

(g) Since August 28, 1999 there shall not have occurred nor otherwise
exist an event or condition which has a Material Adverse Effect;

(h) The Administrative Agent shall have received, for its own account
and for the accounts of the Lenders, all fees and expenses required by
this Credit Agreement or any other Credit Document to be paid on or before
the Closing Date;

(i) Each of the Existing Credit Agreements shall have been terminated;
and

(j) The Administrative Agent shall have received such other documents,
agreements or information which may be reasonably requested by the Administrative
Agent.

4.2 Conditions to all Extensions of Credit.

The obligations of each Lender to make, convert or extend any Loan (including
the initial Loans) are subject to satisfaction of the following conditions
in addition to satisfaction on the Closing Date of the conditions set forth
in Section 4.1:

(a) The Borrower shall have delivered, in the case of any Revolving
Loan, an appropriate Notice of Borrowing or Notice of Extension/Conversion;
(b) The representations and warranties set forth in Section 5 shall
be, subject to the limitations set forth therein, true and correct in all
material respects as of such date (except for those which expressly relate
to an earlier date);

(c) There shall not have been commenced against the Borrower an involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) of the Borrower or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded;

(d) No Default or Event of Default shall exist and be continuing either
prior to or after giving effect thereto; and

(e) Immediately after giving effect to the making of such Loan (and
the application of the proceeds thereof), the sum of the aggregate principal
amount of outstanding Revolving Loans plus the aggregate principal
amount of outstanding Competitive Loans plus the aggregate principal
amount of outstanding Swingline Loans shall not exceed the Revolving Committed
Amount.

The delivery of each Notice of Borrowing and each Notice of Extension/Conversion
shall constitute a representation and warranty by the Borrower of the correctness
of the matters specified in subsections (b), (c), (d) and (e) above.

 

 




SECTION 5

REPRESENTATIONS AND WARRANTIES


The Borrower hereby represents to the Administrative Agent and each
Lender that:

5.1 Financial Condition.

The audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as of August 28, 1999 and the audited consolidated statements
of earnings and statements of cash flows for the year ended August 28,
1999 have heretofore been furnished to each Lender. Such financial statements
(including the notes thereto) (a) have been audited by Ernst & Young
LLP, (b) have been prepared in accordance with GAAP consistently applied
throughout the periods covered thereby and (c) present fairly (on the basis
disclosed in the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of the Borrower
and its consolidated Subsidiaries as of such date and for such periods.
During the period from August 28, 1999 to and including the Closing Date,
there has been no sale, transfer or other disposition by the Borrower or
any of its Subsidiaries of any material part of the business or property
of the Borrower and its consolidated Subsidiaries, taken as a whole, and
no purchase or other acquisition by any of them of any business or property
(including any capital stock of any other person) material in relation
to the consolidated financial condition of the Borrower and its consolidated
Subsidiaries, taken as a whole, in each case, which, is not reflected in
the foregoing financial statements or in the notes thereto and has not
otherwise been disclosed in writing to the Lenders on or prior to the Closing
Date.

5.2 Organization; Existence; Compliance with Law.

Each of the Borrower and its Subsidiaries (a) is duly organized, validly
existing and is in good standing under the laws of the jurisdiction of
its incorporation or organization, (b) has the corporate or other necessary
power and authority, and the legal right, to own and operate its property,
to lease the property it operates as lessee and to conduct the business
in which it is currently engaged, except to the extent that the failure
to have such legal right would not be reasonably expected to have a Material
Adverse Effect, (c) is duly qualified as a foreign entity and in good standing
under the laws of each jurisdiction where its ownership, lease or operation
of property or the conduct of its business requires such qualification,
other than in such jurisdictions where the failure to be so qualified and
in good standing would not be reasonably expected to have a Material Adverse
Effect, and (d) is in compliance with all material Requirements of Law,
except to the extent that the failure to comply therewith would not, in
the aggregate, be reasonably expected to have a Material Adverse Effect.

5.3 Power; Authorization; Enforceable Obligations.

The Borrower has the corporate or other necessary power and authority,
and the legal right, to make, deliver and perform the Credit Documents
to which it is a party, and in the case of the Borrower, to borrow hereunder,
and has taken all necessary corporate action to authorize the borrowings
on the terms and conditions of this Credit Agreement and to authorize the
execution, delivery and performance of the Credit Documents to which it
is a party. No consent or authorization of, filing with, notice to or other
similar act by or in respect of, any Governmental Authority or any other
Person is required to be obtained or made by or on behalf of the Borrower
in connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Credit Documents to which
the Borrower is a party. This Credit Agreement has been, and each other
Credit Document to which the Borrower is a party will be, duly executed
and delivered on behalf of the Borrower. This Credit Agreement constitutes,
and each other Credit Document to which the Borrower is a party when executed
and delivered will constitute, a legal, valid and binding obligation of
the Borrower enforceable against such party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).

5.4 No Legal Bar.

The execution, delivery and performance of the Credit Documents by the
Borrower, the borrowings hereunder and the use of the proceeds thereof
(a) will not violate any Requirement of Law or contractual obligation of
the Borrower or any of its Subsidiaries in any respect that would reasonably
be expected to have a Material Adverse Effect, (b) will not result in,
or require, the creation or imposition of any Lien on any of the properties
or revenues of any of the Borrower or any of its Subsidiaries pursuant
to any such Requirement of Law or contractual obligation, and (c) will
not violate or conflict with any provision of the Borrower's articles of
incorporation or by-laws.

5.5 No Material Litigation.

Except as disclosed in Schedule 5.5, there are no actions, suits or
proceedings pending or, to the best knowledge of the Borrower, threatened
against or affecting the Borrower, any of its Subsidiaries or any of its
properties before any Governmental Authority that (a) could reasonably
be expected to have a Material Adverse Effect or (b) in any manner draw
into question the validity, legality or enforceability of any Credit Document
or any transaction contemplated thereby.

5.6 No Default.

Neither the Borrower nor any of its Subsidiaries is in default under
or with respect to any of their contractual obligations in any respect
which would be reasonably expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.

5.7 Ownership of Property; Liens.

Each of the Borrower and its Subsidiaries has good record and marketable
title in fee simple to, or a valid leasehold interest in, all its material
real property, and good title to, or a valid leasehold interest in, all
its other material property, and none of such property is subject to any
Lien, except for Permitted Liens.

5.8 No Burdensome Restrictions.

Except as previously disclosed in writing to the Lenders on or prior
to the Closing Date, no Requirement of Law or contractual obligation of
the Borrower or any of its Subsidiaries would be reasonably expected to
have a Material Adverse Effect.

5.9 Taxes.

Each of the Borrower and its Subsidiaries has filed or caused to be
filed all United States federal income tax returns and all other material
tax returns which, to the best knowledge of the Borrower, are required
to be filed and has paid (a) all taxes shown to be due and payable on said
returns or (b) all taxes shown to be due and payable on any assessments
of which it has received notice made against it or any of its property
and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any (i) taxes, fees
or other charges with respect to which the failure to pay, in the aggregate,
would not have a Material Adverse Effect or (ii) taxes, fees or other charges
the amount or validity of which are currently being contested and with
respect to which reserves in conformity with GAAP have been provided on
the books of such Person), and no tax Lien has been filed, and, to the
best knowledge of the Borrower, no claim is being asserted, with respect
to any such tax, fee or other charge.

5.10 ERISA.

Except as would not result in a Material Adverse Effect:

(a) During the five-year period prior to the date on which this representation
is made or deemed made: (i) no ERISA Event has occurred, and, to the best
knowledge of the Borrower, no event or condition has occurred or exists
as a result of which any ERISA Event could reasonably be expected to occur,
with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, has occurred with respect to any Plan; (iii) each
Single Employer Plan and, to the best knowledge of the Borrower, each Multiemployer
Plan has been maintained, operated, and funded in compliance with its own
terms and in material compliance with the provisions of ERISA, the Code,
and any other applicable federal or state laws; and (iv) no lien in favor
of the PBGC or a Plan has arisen or is reasonably likely to arise on account
of any Plan.
(b) The actuarial present value of all "benefit liabilities" (as defined
in Section 4001(a)(16) of ERISA), whether or not vested, under each Single
Employer Plan, as of the last annual valuation date prior to the date on
which this representation is made or deemed made (determined, in each case,
utilizing the actuarial assumptions used in such Plan's most recent actuarial
valuation report), did not exceed as of such valuation date the fair market
value of the assets of such Plan.

(c) Neither the Borrower, any of the Subsidiaries of the Borrower nor
any ERISA Affiliate has incurred, or, to the best knowledge of the Borrower,
could be reasonably expected to incur, any withdrawal liability under ERISA
to any Multiemployer Plan or Multiple Employer Plan. Neither the Borrower,
any of the Subsidiaries of the Borrower nor any ERISA Affiliate would become
subject to any withdrawal liability under ERISA if the Borrower, any of
the Subsidiaries of the Borrower or any ERISA Affiliate were to withdraw
completely from all Multiemployer Plans and Multiple Employer Plans as
of the valuation date most closely preceding the date on which this representation
is made or deemed made. Neither the Borrower, any of the Subsidiaries of
the Borrower nor any ERISA Affiliate has received any notification that
any Multiemployer Plan is in reorganization (within the meaning of Section
4241 of ERISA), is insolvent (within the meaning of Section 4245 of ERISA),
or has been terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the best knowledge of the Borrower, reasonably
expected to be in reorganization, insolvent, or terminated.

(d) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility
has occurred with respect to a Plan which has subjected or may subject
the Borrower, any of the Subsidiaries of the Borrower or any ERISA Affiliate
to any liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other instrument pursuant
to which the Borrower, any of the Subsidiaries of the Borrower or any ERISA
Affiliate has agreed or is required to indemnify any person against any
such liability.

(e) Neither the Borrower, any Subsidiary of the Borrower nor any ERISA
Affiliates has any material liability with respect to "expected post-retirement
benefit obligations" within the meaning of the Financial Accounting Standards
Board Statement 106.

(f) Neither the execution and delivery of this Credit Agreement nor
the consummation of the financing transactions contemplated thereunder
will involve any transaction which is subject to the prohibitions of Sections
404, 406 or 407 of ERISA or in connection with which a tax could be imposed
pursuant to Section 4975 of the Code. The representation by the Borrower
in the preceding sentence is made in reliance upon and subject to the accuracy
of the Lenders' representation in Section 10.15 with respect to their source
of funds and is subject, in the event that the source of the funds used
by the Lenders in connection with this transaction is an insurance company's
general asset account, to the application of Prohibited Transaction Class
Exemption 95-60, 60 Fed. Reg. 35,925 (1995), compliance with the regulations
issued under Section 401(c)(1)(A) of ERISA, or the issuance of any other
prohibited transaction exemption or similar relief, to the effect that
assets in an insurance company's general asset account do not constitute
assets of an "employee benefit plan" within the meaning of Section 3(3)
of ERISA of a "plan" within the meaning of Section 4975(e)(1) of the Code.

5.11 Governmental Regulations, Etc.

(a) No part of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin stock"
in violation of Regulation U. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender
a statement to the foregoing effect in conformity with the requirements
of FR Form U-1 referred to in said Regulation U. No indebtedness being
reduced or retired out of the proceeds of the Loans was or will be incurred
for the purpose of purchasing or carrying any margin stock within the meaning
of Regulation U or any "margin security" within the meaning of Regulation
T. "Margin stock" within the meanings of Regulation U does not constitute
more than 25% of the value of the consolidated assets of the Borrower and
its Subsidiaries. None of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of
the proceeds of the Loans) will violate or result in a violation of the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934,
as amended, or regulations issued pursuant thereto, or Regulation T, U
or X.
(b) Neither the Borrower nor any of its Subsidiaries is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power
Act or the Investment Company Act of 1940, each as amended. In addition,
neither the Borrower nor any of its Subsidiaries is (i) an "investment
company" registered or required to be registered under the Investment Company
Act of 1940, as amended, and is not controlled by such a company, or (ii)
a "holding company", or a "subsidiary company" of a "holding company",
or an "affiliate" of a "holding company" or of a "subsidiary" of a "holding
company", within the meaning of the Public Utility Holding Company Act
of 1935, as amended.

(c) Each of the Borrower and its Subsidiaries has obtained all licenses,
permits, franchises or other governmental authorizations necessary to the
ownership of its respective Property and to the conduct of its business,
except where such failure could not reasonably be expected to have a Material
Adverse Effect.

(d) Neither the Borrower nor any of its Subsidiaries is in violation
of any applicable statute, regulation or ordinance of the United States
of America, or of any state, city, town, municipality, county or any other
jurisdiction, or of any agency thereof (including without limitation, environmental
laws and regulations), except where such violation could not reasonably
be expected to have a Material Adverse Effect.

(e) Each of the Borrower and its Subsidiaries is current with all material
reports and documents, if any, required to be filed with any state or federal
securities commission or similar agency and is in full compliance in all
material respects with all applicable rules and regulations of such commissions,
except where such failure could not reasonably be expected to have a Material
Adverse Effect.

5.12 Subsidiaries.

Schedule 5.12 sets forth all the Subsidiaries of the Borrower
at the Closing Date, the jurisdiction of their organization and the direct
or indirect ownership interest of the Borrower therein.

5.13 Purpose of Loans.

The proceeds of the Loans hereunder shall be used solely by the Borrower
to (a) to refinance existing Indebtedness of the Borrower under the Existing
Credit Agreements, (b) repurchase stock in the Borrower, (c) to finance
acquisitions to the extent permitted under this Credit Agreement and (d)
for the working capital, commercial paper back up, capital expenditures
and other lawful corporate purposes of the Borrower and its Subsidiaries.

5.14 Year 2000 Matters.

The Borrower believes that all computer applications (including those
of its suppliers, vendors and customers) that are material to its or any
of its Subsidiaries' business and operations are able to perform properly
date-sensitive functions for all dates before and after January 1, 2000
(that is, are "Year 2000 compliant"), except to the extent as would not
reasonably be expected to have a Material Adverse Effect.

 

 




SECTION 6

AFFIRMATIVE COVENANTS


The Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:

6.1 Information Covenants.

The Borrower will furnish, or cause to be furnished, to the Administrative
Agent and the Lenders:

(a) Annual Financial Statements. As soon as available, and
in any event within 100 days after the close of each fiscal year of the
Borrower and its Subsidiaries, a consolidated balance sheet and income
statement of the Borrower and its Subsidiaries, as of the end of such fiscal
year, together with related consolidated statements of operations and retained
earnings and of cash flows for such fiscal year, setting forth in comparative
form consolidated figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and audited
by Ernst & Young LLP (or independent certified public accountants of
recognized national standing reasonably acceptable to the Administrative
Agent) and whose opinion shall be to the effect that such financial statements
have been prepared in accordance with GAAP (except for changes with which
such accountants concur) and shall not be limited as to the scope of the
audit or qualified as to the status of the Borrower and its Subsidiaries
as a going concern.
(b) Quarterly Financial Statements. As soon as available, and
in any event within 50 days after the close of each fiscal quarter of the
Borrower and its Subsidiaries (other than the fourth fiscal quarter, in
which case 100 days after the end thereof) a consolidated balance sheet
and income statement of the Borrower and its Subsidiaries, as of the end
of such fiscal quarter, together with related consolidated statements of
operations and retained earnings and of cash flows for such fiscal quarter
in each case setting forth in comparative form consolidated figures for
the corresponding period of the preceding fiscal year, all such financial
information described above to be in reasonable form and detail and reasonably
acceptable to the Administrative Agent, and accompanied by a certificate
of a Financial Officer of the Borrower to the effect that such quarterly
financial statements fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries and have been prepared in
accordance with GAAP, subject to changes resulting from audit and normal
year-end audit adjustments.

(c) Officer's Certificate. At the time of delivery of the financial
statements provided for in Sections 6.1(a) and 6.1(b) above, a certificate
of a Financial Officer of the Borrower substantially in the form of Schedule
6.1(c), (i) demonstrating compliance with the financial covenants contained
in Sections 6.10 and 6.11 by calculation thereof as of the end of each
such fiscal period and (ii) stating that no Default or Event of Default
exists, or if any Default or Event of Default does exist, specifying the
nature and extent thereof and what action the Borrower proposes to take
with respect thereto.

(d) Reports. Promptly upon transmission or receipt thereof, (a)
copies of any filings and registrations with, and reports to or from, the
Securities and Exchange Commission, or any successor agency, and copies
of all financial statements, proxy statements, notices and reports as the
Borrower or any of its Subsidiaries shall send to its shareholders or to
a holder of any Indebtedness owed by the Borrower or any of its Subsidiaries
in its capacity as such a holder and (b) upon the request of the Administrative
Agent, all reports and written information to and from the United States
Environmental Protection Agency, or any state or local agency responsible
for environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and
safety
matters, or any successor agencies or authorities concerning environmental,
health or safety matters.

(e) Notices. Upon obtaining knowledge thereof, the Borrower will
give written notice to the Administrative Agent immediately of (a) the
occurrence of an event or condition consisting of a Default or Event of
Default, specifying the nature and existence thereof and what action the
Borrower propose to take with respect thereto, and (b) the occurrence of
any of the following with respect to the Borrower or any of its Subsidiaries
(i) the pendency or commencement of any litigation, arbitral or governmental
proceeding against such Person which if adversely determined is reasonably
likely to have a Material Adverse Effect, (ii) the institution of any proceedings
against such Person with respect to, or the receipt of notice by such Person
of potential liability or responsibility for violation, or alleged violation
of any federal, state or local law, rule or regulation, including but not
limited to, Environmental Laws, the violation of which would likely have
a Material Adverse Effect, or (iii) any notice or determination concerning
the imposition of any withdrawal liability by a Multiemployer Plan against
such Person or any ERISA Affiliate, the determination that a Multiemployer
Plan is, or is expected to be, in reorganization within the meaning of
Title IV of ERISA or the termination of any Plan.

(f) ERISA. Upon obtaining knowledge thereof, the Borrower will
give written notice to the Administrative Agent promptly (and in any event
within five business days) of: (i) of any event or condition, including,
but not limited to, any Reportable Event, that constitutes, or might reasonably
lead to, an ERISA Event; (ii) with respect to any Multiemployer Plan, the
receipt of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against the Borrower or any of its ERISA Affiliates,
or of a determination that any Multiemployer Plan is in reorganization
or insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including extensions)
thereof of all amounts which the Borrower, any of the Subsidiaries of the
Borrower or any ERISA Affiliate is required to contribute to each Plan
pursuant to its terms and as required to meet the minimum funding standard
set forth in ERISA and the Code with respect thereto; or (iv) any change
in the funding status of any Plan that reasonably could be expected to
have a Material Adverse Effect, together with a description of any such
event or condition or a copy of any such notice and a statement by a Financial
Officer of the Borrower briefly setting forth the details regarding such
event, condition, or notice, and the action, if any, which has been or
is being taken or is proposed to be taken by the Borrower with respect
thereto. Promptly upon request, the Borrower shall furnish the Administrative
Agent and the Lenders with such additional information concerning any Plan
as may be reasonably requested, including, but not limited to, copies of
each annual report/return (Form 5500 series), as well as all schedules
and attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code, respectively,
for each "plan year" (within the meaning of Section 3(39) of ERISA).

(g) Other Information. With reasonable promptness upon any such
request, such other information regarding the business, properties or financial
condition of the Borrower or any of its Subsidiaries as the Administrative
Agent or the Required Lenders may reasonably request.

6.2 Preservation of Existence and Franchises.

Except as would not result in a Material Adverse Effect, the Borrower
will, and will cause each of its Subsidiaries to, do all things necessary
to preserve and keep in full force and effect its existence, rights, franchises
and authority.

6.3 Books and Records.

The Borrower will, and will cause each of its Subsidiaries to, keep
complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the establishment
and maintenance of appropriate reserves).

6.4 Compliance with Law.

The Borrower will, and will cause each of its Subsidiaries to, comply
with all laws, rules, regulations and orders, and all applicable restrictions
imposed by all Governmental Authorities, applicable to it and its property
if noncompliance with any such law, rule, regulation, order or restriction
would have a Material Adverse Effect.

6.5 Payment of Taxes and Other Indebtedness.

Except as otherwise provided pursuant to the terms of the definition
of "Permitted Liens" set forth in Section 1.1, the Borrower will, and will
cause each of its Subsidiaries to, pay and discharge (a) all taxes, assessments
and governmental charges or levies imposed upon it, or upon its income
or profits, or upon any of its properties, before they shall become delinquent,
(b) all lawful claims (including claims for labor, materials and supplies)
which, if unpaid, might give rise to a Lien upon any of its properties,
and (c) except as prohibited hereunder, all of its other Indebtedness as
it shall become due.

6.6 Insurance.

The Borrower will, and will cause each of its Subsidiaries to, at all
times maintain in full force and effect insurance (including worker's compensation
insurance, liability insurance and casualty insurance) in such amounts,
covering such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice.

6.7 Maintenance of Property.

The Borrower will, and will cause each of its Subsidiaries to, maintain
and preserve its properties and equipment material to the conduct of its
business in good repair, working order and condition, normal wear and tear
and casualty and condemnation excepted, and will make, or cause to be made,
in such properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements thereto
as may be needed or proper, to the extent and in the manner customary for
companies in similar businesses.

6.8 Use of Proceeds.

The Borrower will use the proceeds of the Loans solely for the purposes
set forth in Section 5.13.

6.9 Audits/Inspections.

Upon reasonable notice and during normal business hours, the Borrower
will, and will cause each of its Subsidiaries to, permit representatives
appointed by the Administrative Agent, including, without limitation, independent
accountants, agents, attorneys, and appraisers to visit and inspect its
property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees
and representatives of such Person.

6.10 Adjusted Debt to EBITDAR Ratio.

The Borrower shall cause the ratio of Consolidated Adjusted Debt to
Consolidated EBITDAR as of the last day of each fiscal quarter to be no
greater than the amount set forth below with respect to the applicable
periods set forth below:

 

	
Period
	
Ratio

	Closing Date through 

and including August 31, 2000	
3.25 to 1.00

	September 1, 2000 through 

and including May 31, 2001	
3.50 to 1.00

	June 1, 2001 through

and including August 31, 2001	
3.25 to 1.00

	September 1, 2001 through 

and including May 31, 2002	
3.50 to 1.00

	June 1, 2002 through

and including May 31, 2004	
3.00 to 1.00

	June 1, 2004 and thereafter	
2.75 to 1.00




6.11 Interest Coverage Ratio.

The Borrower shall cause the Consolidated Interest Coverage Ratio as
of the last day of each fiscal quarter to be no less than 2.50 to 1.0.

 

 




SECTION 7

NEGATIVE COVENANTS


The Borrower hereby covenants and agrees that, so long as this Credit
Agreement is in effect or any amounts payable hereunder or under any other
Credit Document shall remain outstanding, and until all of the Commitments
hereunder shall have terminated:

7.1 Liens.

The Borrower will not, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Lien with respect
to any of their Property, whether now owned or after acquired, except for
Permitted Liens.

7.2 Nature of Business.

The Borrower will not, nor will it permit any of its Subsidiaries to,
substantively alter the character or conduct of the business conducted
by any such Person as of the Closing Date.

7.3 Consolidation, Merger, Sale or Purchase of Assets, etc.

The Borrower will not, nor will it permit any of its Subsidiaries to:

(a) except in connection with a disposition of assets permitted by
the terms of subsection (c) below, dissolve, liquidate or wind up their
affairs;
(b) enter into any transaction of merger or consolidation; provided,
however,
that, so long as no Default or Event of Default would be directly or indirectly
caused as a result thereof, (i) the Borrower may merge or consolidate with
any of its Subsidiaries provided that the Borrower is the surviving corporation;
(ii) any Subsidiary of the Borrower may merge or consolidate with any other
Subsidiary of the Borrower; and (iii) the Borrower or any of its Subsidiaries
may merge or consolidate with any Person (other than the Borrower or any
of its Subsidiaries) provided that (A) the Borrower or a Subsidiary of
the Borrower is the surviving corporation and (B) after giving effect on
a pro forma basis to such merger or consolidation, no Default or Event
of Default would exist hereunder;

(c) sell, lease, transfer or otherwise dispose of Property owned by
and material to the Borrower and its Subsidiaries, taken as a whole (other
than (i) any such sale, lease, transfer or other disposition by a Subsidiary
of the Borrower to the Borrower or any other Subsidiary of the Borrower),
provided,
however,
for the purposes of this subsection (c), sale-leaseback transactions entered
into by the Borrower or its Subsidiaries shall not be deemed material to
the Borrower and its Subsidiaries, taken as a whole to the extent the aggregate
amount with respect to all such transactions entered into after the Closing
Date does not exceed $500,000,000; or

(d) except as otherwise permitted by Section 7.3(a) or Section 7.3(b),
acquire all or any portion of the capital stock or securities of any other
Person or purchase, lease or otherwise acquire (in a single transaction
or a series of related transactions) all or any substantial part of the
Property of any other Person; provided that (i) the Borrower or
any of its Subsidiaries shall be permitted to make acquisitions of the
type referred to in this Section 7.3(d), so long as such acquisitions are
non-hostile and (ii) after giving effect on a pro forma basis to any such
acquisition (including but not limited to any Indebtedness to be incurred
or assumed by the Borrower or any of its Subsidiaries in connection therewith),
no Default or Event of Default would exist hereunder.

7.4 Fiscal Year.

The Borrower will not, nor will it permit any of its Subsidiaries to,
change its fiscal year without first obtaining the written consent of the
Required Lenders (such consent not to be unreasonably withheld).

7.5 Subsidiary Indebtedness.

The Borrower will not permit any of its Subsidiaries to contract, create,
incur, assume or permit to exist any Indebtedness, except:

(a) Indebtedness set forth on Schedule 7.5 (and any renewals,
refinancings or extensions thereof on terms and conditions no more favorable,
in the aggregate, to such creditor than such existing Indebtedness and
in a principal amount not in excess of that outstanding as of the date
of such renewal, refinancing or extension);
(b) intercompany Indebtedness owed by a Subsidiary of the Borrower to
the Borrower or to another wholly-owned Subsidiary of the Borrower;

(c) Indebtedness of the Subsidiaries incurred after the Closing Date
to provide all or a portion of the purchase price of short-lived assets
(such as trucks and computer equipment) which may be treated as Capital
Leases in accordance with GAAP in an aggregate amount not to exceed $50,000,000
in any fiscal year;

(d) Indebtedness of the Subsidiaries incurred in connection with synthetic
leases, tax retention operating leases, off-balance sheet loans or similar
off-balance sheet financings in an aggregate amount not to exceed $250,000,000
in any two consecutive fiscal years; and

(e) other Indebtedness in an aggregate principal amount not to exceed
$25,000,000 at any time outstanding.

 

 



SECTION 8
EVENTS OF DEFAULT


8.1 Events of Default.

An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):

(a) Payment. The Borrower shall

 
(i) default in the payment when due of any principal of any of the
Loans, or
(ii) default, and such default shall continue for five (5) or more Business
Days, in the payment when due of any interest on the Loans, or of any Fees
or other amounts owing hereunder, under any of the other Credit Documents
or in connection herewith or therewith; or

 

(b) Representations. Any representation, warranty or statement made
or deemed to be made by the Borrower herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to
be delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was deemed to have been made; or

(c) Covenants. The Borrower shall

 

(i) default in the due performance or observance of any term, covenant
or agreement contained in Sections 6.2, 6.8, 6.10, 6.11 or 7.1 through
7.3, inclusive, and 7.5 or
(ii) default in the due performance of any term, covenant or agreement
contained in Section 6.1 and such default shall continue unremedied for
a period of at least 5 days after the earlier of a responsible officer
of the Borrower becoming aware of such default or notice thereof by the
Administrative Agent.

(iii) default in the due performance or observance by it of any term,
covenant or agreement (other than those referred to in subsections (a),
(b), (c)(i) or (c)(ii) of this Section 8.1) contained in this Credit Agreement
and such default shall continue unremedied for a period of at least 30
days after the earlier of a responsible officer of the Borrower becoming
aware of such default or notice thereof by the Administrative Agent; or

 

(d) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect
to the Borrower or any of its Subsidiaries; or

(e) Other Indebtedness. With respect to any Indebtedness (other
than Indebtedness outstanding under this Credit Agreement or owing to the
Borrower or any of its Subsidiaries) in excess of $25,000,000 in the aggregate
for the Borrower and its Subsidiaries taken as a whole, (i) the Borrower
or any of its Subsidiaries shall (A) default in any payment (beyond the
applicable grace period with respect thereto, if any) with respect to any
such Indebtedness, or (B) the occurrence and continuance of a default in
the observance or performance relating to such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto,
or any other event or condition shall occur or condition exist, the effect
of which default or other event or condition is to cause, or permit, the
holder or holders of such Indebtedness (or trustee or agent on behalf of
such holders) to cause, any such Indebtedness to become due prior to its
stated maturity but after the expiration of all applicable grace periods;
or (ii) any such Indebtedness shall be declared due and payable, or required
to be prepaid other than by a regularly scheduled required prepayment,
prior to the stated maturity thereof and shall not be repaid when due;
or

(f) Judgments. One or more judgments or decrees shall be entered
against the Borrower or any of its Subsidiaries involving a liability of
$25,000,000 or more in the aggregate (to the extent not paid or covered
by insurance) and any such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 30 days from the entry
thereof; or

(g) ERISA. Any of the following events or conditions, if such
event or condition reasonably could be expected to have a Material Adverse
Effect: (1) any "accumulated funding deficiency," as such term is defined
in Section 302 of ERISA and Section 412 of the Code, whether or not waived,
shall exist with respect to any Plan, or any lien shall arise on the assets
of the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
in favor of the PBGC or a Plan; (2) an ERISA Event shall occur with respect
to a Single Employer Plan, which is, in the reasonable opinion of the Administrative
Agent, likely to result in the termination of such Plan for purposes of
Title IV of ERISA; (3) an ERISA Event shall occur with respect to a Multiemployer
Plan or Multiple Employer Plan, which is, in the reasonable opinion of
the Administrative Agent, likely to result in (i) the termination of such
Plan for purposes of Title IV of ERISA, or (ii) the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate incurring any liability in connection
with a withdrawal from, reorganization of (within the meaning of Section
4241 of ERISA), or insolvency or (within the meaning of Section 4245 of
ERISA) such Plan; or (4) any prohibited transaction (within the meaning
of Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or under
any agreement or other instrument pursuant to which the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate has agreed or is required to indemnify
any person against any such liability.

                   
(h) Ownership. There shall occur a Change of Control.

8.2 Acceleration; Remedies.

Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Required
Lenders or cured to the satisfaction of the Required Lenders (pursuant
to the voting procedures in Section 10.6), the Administrative Agent shall,
upon the request and direction of the Required Lenders, by written notice
to the Borrower take any of the following actions:

(a) Termination of Commitments. Declare the Commitments terminated
whereupon the Commitments shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any accrued
interest in respect of all Loans and any and all other indebtedness or
obligations of any and every kind owing by the Borrower to the Administrative
Agent and/or any of the Lenders hereunder to be due whereupon the same
shall be immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower.

(c) Enforcement of Rights. Enforce any and all rights and interests
created and existing under the Credit Documents and all rights of set-off.

Notwithstanding the foregoing, if an Event of Default specified in Section
8.1(d) shall occur, then the Commitments shall automatically terminate
and all Loans, all accrued interest in respect thereof, all accrued and
unpaid Fees and other indebtedness or obligations owing to the Administrative
Agent and/or any of the Lenders hereunder automatically shall immediately
become due and payable without the giving of any notice or other action
by the Administrative Agent or the Lenders.

 

 




SECTION 9

AGENCY PROVISIONS


9.1 Appointment.

Each Lender hereby designates and appoints Bank of America, N.A. as
administrative agent (in such capacity as Administrative Agent hereunder,
the "Administrative Agent") of such Lender to act as specified herein and
the other Credit Documents, and each such Lender hereby authorizes the
Administrative Agent as the agent for such Lender, to take such action
on its behalf under the provisions of this Credit Agreement and the other
Credit Documents and to exercise such powers and perform such duties as
are expressly delegated by the terms hereof and of the other Credit Documents,
together with such other powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere herein and in the other Credit
Documents, the Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein and therein, or any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Credit Agreement
or any of the other Credit Documents, or shall otherwise exist against
the Administrative Agent. The provisions of this Section are solely for
the benefit of the Administrative Agent and the Lenders and the Borrower
shall have no rights as a third party beneficiary of the provisions hereof.
In performing its functions and duties under this Credit Agreement and
the other Credit Documents, the Administrative Agent shall act solely as
agent of the Lenders and does not assume and shall not be deemed to have
assumed any obligation or relationship of agency or trust with or for the
Borrower or any of its Affiliates.

9.2 Delegation of Duties.

The Administrative Agent may execute any of its respective duties hereunder
or under the other Credit Documents by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining
to such duties; provided that the use of any agents or attorneys-in-fact
shall not relieve the Administrative Agent of its duties hereunder.

9.3 Exculpatory Provisions.

The Administrative Agent and its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall not be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful misconduct),
or (b) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower contained
herein or in any of the other Credit Documents or in any certificate, report,
document, financial statement or other written or oral statement referred
to or provided for in, or received by the Administrative Agent under or
in connection herewith or in connection with the other Credit Documents,
or enforceability or sufficiency therefor of any of the other Credit Documents,
or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be responsible to any
Lender for the effectiveness, genuineness, validity, enforceability, collectability
or sufficiency of this Credit Agreement, or any of the other Credit Documents
or for any representations, warranties, recitals or statements made herein
or therein or made by the Borrower in any written or oral statement or
in any financial or other statements, instruments, reports, certificates
or any other documents in connection herewith or therewith furnished or
made by the Administrative Agent to the Lenders or by or on behalf of the
Borrower to the Administrative Agent or any Lender or be required to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to
the use of the proceeds of the Loans or of the existence or possible existence
of any Default or Event of Default or to inspect the properties, books
or records of the Borrower or any of its Affiliates.

9.4 Reliance on Communications.

The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation reasonably
believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons and upon advice and statements
of legal counsel (including, without limitation, counsel to the Borrower,
independent accountants and other experts selected by the Administrative
Agent with reasonable care). The Administrative Agent may deem and treat
the Lenders as the owner of their respective interests hereunder for all
purposes unless a written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative Agent in accordance
with Section 10.3(b) hereof. The Administrative Agent shall be fully justified
in failing or refusing to take any action under this Credit Agreement or
under any of the other Credit Documents unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from
acting, hereunder or under any of the other Credit Documents in accordance
with a request of the Required Lenders (or to the extent specifically provided
in Section 10.6, all the Lenders) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders
(including their successors and assigns).

9.5 Notice of Default.

The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower
referring to the Credit Document, describing such Default or Event of Default
and stating that such notice is a "notice of default." In the event that
the Administrative Agent receives such a notice, the Administrative Agent
shall give prompt notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Required Lenders.

9.6 Non-Reliance on Administrative Agent and Other Lenders.

Each Lender expressly acknowledges that each of the Administrative Agent
and its officers, directors, employees, agents, attorneys-in-fact or affiliates
has not made any representations or warranties to it and that no act by
the Administrative Agent or any affiliate thereof hereinafter taken, including
any review of the affairs of the Borrower or any of its Affiliates, shall
be deemed to constitute any representation or warranty by the Administrative
Agent to any Lender. Each Lender represents to the Administrative Agent
that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation
into the business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Borrower or its Affiliates and made
its own decision to make its Loans hereunder and enter into this Credit
Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Credit Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other conditions, prospects
and creditworthiness of the Borrower and its Affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, assets, property,
financial or other conditions, prospects or creditworthiness of the Borrower
or any of its Affiliates which may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates.

9.7 Indemnification.

The Lenders agree to indemnify the Administrative Agent in its capacity
as such (to the extent not reimbursed by the Borrower and without limiting
the obligation of the Borrower to do so), ratably according to their respective
Commitments (or if the Commitments have expired or been terminated, in
accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the final payment of
all of the obligations of the Borrower hereunder and under the other Credit
Documents) be imposed on, incurred by or asserted against the Administrative
Agent in its capacity as such in any way relating to or arising out of
this Credit Agreement or the other Credit Documents or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby
or thereby or any action taken or omitted by the Administrative Agent under
or in connection with any of the foregoing; provided that no Lender
shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements resulting from the gross negligence or willful misconduct
of the Administrative Agent. If any indemnity furnished to the Administrative
Agent for any purpose shall, in the opinion of the Administrative Agent,
be insufficient or become impaired, the Administrative Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The agreements in
this Section shall survive the repayment of the Loans and other obligations
under the Credit Documents and the termination of the Commitments hereunder.

9.8 Administrative Agent in its Individual Capacity.

The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower,
its Subsidiaries or their respective Affiliates as though the Administrative
Agent were not the Administrative Agent hereunder. With respect to the
Loans made by and all obligations of the Borrower hereunder and under the
other Credit Documents, the Administrative Agent shall have the same rights
and powers under this Credit Agreement as any Lender and may exercise the
same as though it were not the Administrative Agent, and the terms "Lender"
and "Lenders" shall include the Administrative Agent in its individual
capacity.

9.9 Successor Administrative Agent.

The Administrative Agent may, at any time, resign upon 20 days written
notice to the Lenders, and may be removed, upon show of cause, by the Required
Lenders upon 30 days written notice to the Administrative Agent. Upon
any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Administrative Agent; provided that, so long
as no Default or Event of Default has occurred and is continuing, such
successor Administrative Agent shall be reasonably acceptable to the Borrower.
If no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days
after the notice of resignation or notice of removal, as appropriate, then
the retiring Administrative Agent shall select a successor Administrative
Agent provided such successor is a Lender hereunder or a commercial bank
organized under the laws of the United States of America or of any State
thereof and has a combined capital and surplus of at least $400,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor, such successor Administrative Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations as Administrative Agent,
as appropriate, under this Credit Agreement and the other Credit Documents
and the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative
Agent under this Credit Agreement.

9.10 Syndication Agent.

The Syndication Agent, in its capacity as such, shall have no rights,
powers, duties or obligations under this Credit Agreement or any of the
other Credit Documents.

 

 




SECTION 10

MISCELLANEOUS


10.1 Notices.

Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (i) when
delivered, (ii) when transmitted and received (by confirmation of receipt)
via telecopy (or other facsimile device) to the number set out below, (iii)
the day following the day on which the same has been delivered prepaid
to a reputable national overnight air courier service, or (iv) the third
Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective parties
at the address, in the case of the Borrower and the Administrative Agent,
set forth below, and, in the case of the Lenders, set forth on Schedule
2.1(a), or at such other address as such party may specify by written
notice to the other parties hereto:

            if
to the Borrower:


AutoZone, Inc.

123 South Front Street

Memphis, TN 38103

Attn: Chief Financial Officer

Telephone: (901) 495-7181

Telecopy: (901) 495-8317
with a copy to the Treasurer and to the General Counsel for the Borrower
at the same address;

 




            if to
the Administrative Agent:

Bank of America, N.A.

Agency Administrative Services

1850 Gateway Boulevard, 5th Floor

Concord, California 94520-3281

Attn: Jennifer Reeves

Telephone: (925) 675-8384

Telecopy: (925) 969-2902
with a copy to:

Bank of America, N.A.

Retail Credit Products

Bank of America Corporate Center

100 North Tryon Street, 16th Floor

Charlotte, NC 28255

Attn: Timothy H. Spanos, Managing Director

Telephone: (704) 386-4507

Telecopy: (704) 388-8268






10.2 Right of Set-Off.

In addition to any rights now or hereafter granted under applicable
law, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default, each Lender is authorized at any time and from
time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and
to appropriate and apply any and all deposits (general or special) and
any other indebtedness at any time held or owing by such Lender (including,
without limitation, branches, agencies or Affiliates of such Lender wherever
located) to or for the credit or the account of the Borrower against obligations
and liabilities of such Person to such Lender hereunder, under the Notes
or the other Credit Documents, irrespective of whether such Lender shall
have made any demand hereunder and although such obligations, liabilities
or claims, or any of them, may be contingent or unmatured, and any such
set-off shall be deemed to have been made immediately upon the occurrence
of an Event of Default even though such charge is made or entered on the
books of such Lender subsequent thereto. Any Person purchasing a participation
in the Loans and Commitments hereunder pursuant to Section 3.13 or Section
10.3(d) may exercise all rights of set-off with respect to its participation
interest as fully as if such Person were a Lender hereunder.

10.3 Benefit of Agreement.

(a) Generally. This Credit Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that the Borrower may
not assign or transfer any of its interests without prior written consent
of the Lenders; provided further that the rights of each
Lender to transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth in this Section 10.3,
provided
however that nothing herein shall prevent or prohibit any Lender from (i)
pledging its Loans hereunder to a Federal Reserve Bank in support of borrowings
made by such Lender from such Federal Reserve Bank, or (ii) granting assignments
or selling participations in such Lender's Loans and/or Commitments hereunder
to its parent company and/or to any Affiliate or Subsidiary of such Lender.
(b) Assignments. Each Lender may assign all or a portion of its
rights and obligations hereunder, pursuant to an assignment agreement substantially
in the form of Schedule 10.3(b), to (i) any Lender or any Affiliate
or Subsidiary of a Lender, or (ii) any other commercial bank, financial
institution or "accredited investor" (as defined in Regulation D of the
Securities and Exchange Commission) that is reasonably acceptable to the
Administrative Agent and, so long as no Default or Event of Default has
occurred and is continuing, is reasonably acceptable to the Borrower; provided
that (i) any such assignment (other than any assignment to an existing
Lender) shall be in a minimum aggregate amount of $5,000,000 (or, if less,
the remaining amount of the Commitment being assigned by such Lender) of
the Commitments and in integral multiples of $1,000,000 above such amount,
(ii) so long as no Event of Default has occurred and is continuing, no
Lender shall assign more than 50% of such Lender's original Revolving Commitment
without the written consent of the Borrower and (iii) each such assignment
shall be of a constant, not varying, percentage of all such Lender's rights
and obligations under this Credit Agreement. Any assignment hereunder shall
be effective upon delivery to the Administrative Agent of written notice
of the assignment together with a transfer fee of $3,500 payable to the
Administrative Agent for its own account from and after the later of (i)
the effective date specified in the applicable assignment agreement and
(ii) the date of recording of such assignment in the Register pursuant
to the terms of subsection (c) below. The assigning Lender will give prompt
notice to the Administrative Agent and the Borrower of any such assignment.
Upon the effectiveness of any such assignment (and after notice to, and
(to the extent required pursuant to the terms hereof), with the consent
of, the Borrower as provided herein), the assignee shall become a "Lender"
for all purposes of this Credit Agreement and the other Credit Documents
and, to the extent of such assignment, the assigning Lender shall be relieved
of its obligations hereunder to the extent of the Loans and Commitment
components being assigned. Along such lines the Borrower agrees that upon
notice of any such assignment and surrender of the appropriate Note or
Notes, it will promptly provide to the assigning Lender and to the assignee
separate promissory notes in the amount of their respective interests substantially
in the form of the original Note (but with notation thereon that it is
given in substitution for and replacement of the original Note or any replacement
notes thereof). By executing and delivering an assignment agreement in
accordance with this Section 10.3(b), the assigning Lender thereunder and
the assignee thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) such assigning Lender
warrants that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim; (ii) except as set
forth in clause (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto or the financial condition
of the Borrower or any of its respective Affiliates or the performance
or observance by the Borrower of any of its obligations under this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such assignment
agreement; (iv) such assignee confirms that it has received a copy of this
Credit Agreement, the other Credit Documents and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such assignment agreement; (v) such assignee
will independently and without reliance upon the Administrative Agent,
such assigning Lender or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this Credit
Agreement and the other Credit Documents; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action on its behalf and
to exercise such powers under this Credit Agreement or any other Credit
Document as are delegated to the Administrative Agent by the terms hereof
or thereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Credit Agreement
and the other Credit Documents are required to be performed by it as a
Lender. If the assignee is not a United States person under Section 7701(a)(30)
of the Code, it shall deliver to the Borrower and the Administrative Agent
a valid certification as to exemption from deduction or withholding of
taxes in accordance with Section 3.10.

(c) Maintenance of Register. The Administrative Agent shall maintain
at one of its offices in Charlotte, North Carolina (i) a copy of each New
Commitment Agreement, (ii) a copy of each Lender assignment agreement delivered
to it in accordance with the terms of subsection (b) above and (iii) a
register for the recordation of the identity of the principal amount, type
and Interest Period of each Loan outstanding hereunder, the names, addresses
and the Commitments of the Lenders pursuant to the terms hereof from time
to time (the "Register"). The Administrative Agent will make reasonable
efforts to maintain the accuracy of the Register and to promptly update
the Register from time to time, as necessary. The Register shall be prima
facie, but not conclusive, evidence of the information contained therein
and the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Borrower and each Lender, at any
reasonable time and from time to time upon reasonable prior notice.

(d) Participations. Each Lender may sell, transfer, grant or
assign participations in all or any part of such Lender's interests and
obligations hereunder; provided that (i) such selling Lender shall
remain a "Lender" for all purposes under this Credit Agreement (such selling
Lender's obligations under the Credit Documents remaining unchanged) and
the participant shall not constitute a Lender hereunder, (ii) no such participant
shall have, or be granted, rights to approve any amendment or waiver relating
to this Credit Agreement or the other Credit Documents except to the extent
any such amendment or waiver would (A) reduce the principal of or rate
of interest on or Fees in respect of any Loans in which the participant
is participating or (B) postpone the date fixed for any payment of principal
(including extension of the Termination Date or the date of any mandatory
prepayment), interest or Fees in which the participant is participating,
and (iii) sub-participations by the participant (except to an affiliate,
parent company or affiliate of a parent company of the participant) shall
be prohibited. In the case of any such participation, the participant shall
not have any rights under this Credit Agreement or the other Credit Documents
(the participant's rights against the selling Lender in respect of such
participation to be those set forth in the participation agreement with
such Lender creating such participation) and all amounts payable by the
Borrower hereunder shall be determined as if such Lender had not sold such
participation, provided, however, that such participant shall
be entitled to receive additional amounts under Sections 3.6, 3.9 and 3.11
on the same basis as if it were a Lender provided that it shall not be
entitled to receive any more than the selling Lender would have received
had
it not sold the participation.

(e) Designation.

 

(i) Notwithstanding anything to the contrary contained herein, any
Lender (a "Designating Lender") may grant to one or more special
purpose funding vehicles (each, an "SPV"), identified as such in
writing from time to time by the Designating Lender to the Administrative
Agent and the Borrower, the option to provide to the Borrower all or any
part of any Loan that such Designating Lender would otherwise be obligated
to make to the Borrower pursuant to this Credit Agreement; provided that
(I) nothing herein shall constitute a commitment by any SPV to make any
Loan, (II) if an SPV elects not to exercise such option or otherwise fails
to provide all or any part of such Loan, the Designating Lender shall be
obligated to make such Loan pursuant to the terms hereof, (III) the Designating
Lender shall remain liable for any indemnity or other payment obligation
with respect to its Commitment hereunder and (IV) each such SPV would satisfy
the requirements of Section 3.10 if such SPV was a Lender hereunder. The
making of a Loan by an SPV hereunder shall utilize the Commitment of the
Designating Lender to the same extent, and as if, such Loan were made by
such Designating Lender.
(ii) As to any Loans or portion thereof made by it, each SPV shall have
all the rights that a Lender making such Loans or portion thereof would
have had under this Credit Agreement; provided, however that each SPV shall
have granted to its Designating Lender an irrevocable power of attorney,
to deliver and receive all communications and notices under this Credit
Agreement (and any related documents) and to exercise on such SPV's behalf,
all of such SPV's voting rights under this Credit Agreement. No additional
Note shall be required to evidence the Loans or portion thereof made by
an SPV; and the related Designating Lender shall be deemed to hold its
Note as agent for such SPV to the extent of the Loans or portion thereof
funded by such SPV. In addition, any payments for the account of any SPV
shall be paid to its Designating Lender as agent for such SPV.

(iii) Each party hereto hereby agrees that no SPV shall be liable for
any indemnity or payment under this Credit Agreement for which a Lender
would otherwise be liable for so long as, and to the extent, the Designating
Lender provides such indemnity or makes such payment. In furtherance of
the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Credit Agreement) that, prior to the date that
is one year and one day after the payment in full of all outstanding prior
indebtedness of any SPV, it will not institute against, or join any other
person in instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings
under the laws of the United States or any State thereof.

(iv) In addition, notwithstanding anything to the contrary contained
in this Section 10.3 or otherwise in this Credit Agreement, any SPV may
(I) at any time and without paying any processing fee therefor, assign
or participate all or a portion of its interest in any Loans to the Designating
Lender (or to any other SPV of such Designating Lender) or to any financial
institutions providing liquidity and/or credit support to or for the account
of such SPV to support the funding or maintenance of Loans and (II) disclose
on a confidential basis any non-public information relating to its Loans
to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancements to such SPV. This Section
10.3 may not be amended without the written consent of any Designating
Lender affected thereby.



10.4 No Waiver; Remedies Cumulative.

No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Administrative Agent
or any Lender and the Borrower shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder
or under any other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder
or thereunder. The rights and remedies provided herein are cumulative and
not exclusive of any rights or remedies which the Administrative Agent
or any Lender would otherwise have. No notice to or demand on the Borrower
in any case shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the
rights of the Administrative Agent or the Lenders to any other or further
action in any circumstances without notice or demand.

10.5 Payment of Expenses, etc.

The Borrower agrees to: (a) pay all reasonable out-of-pocket costs and
expenses (i) of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery and administration of this Credit Agreement
and the other Credit Documents and the documents and instruments referred
to therein (including, subject to agreed upon limitations, the reasonable
fees and expenses of Moore & Van Allen, PLLC, special counsel to the
Administrative Agent and non-duplicative allocated costs of internal counsel)
and any amendment, waiver or consent relating hereto and thereto including,
but not limited to, any such amendments, waivers or consents resulting
from or related to any work-out, renegotiation or restructure relating
to the performance by the Borrower under this Credit Agreement and (ii)
of the Administrative Agent and the Lenders in connection with enforcement
of the Credit Documents and the documents and instruments referred to therein
(including, without limitation, in connection with any such enforcement,
the reasonable fees and disbursements of counsel (including non-duplicative
allocated costs of internal counsel) for the Administrative Agent and each
of the Lenders); (b) pay and hold each of the Lenders harmless from and
against any and all future stamp and other similar taxes with respect to
the foregoing matters and save each of the Lenders harmless from and against
any and all liabilities with respect to or resulting from any delay or
omission (other than to the extent attributable to such Lender) to pay
such taxes; and (c) indemnify each Lender, its officers, directors, employees,
representatives, agents and Affiliates from and hold each of them harmless
against any and all losses, liabilities, claims, damages or expenses incurred
by any of them as a result of, or arising out of, or in any way related
to, or by reason of (i) any investigation, litigation or other proceeding
(whether or not any Lender is a party thereto, but excluding any investigation
initiated by the Person seeking indemnification hereunder) related to the
entering into and/or performance of any Credit Document or the use of proceeds
of any Loans (including other extensions of credit) hereunder or the consummation
of any other transactions contemplated in any Credit Document, including,
without limitation, the reasonable fees and disbursements of counsel (including
non-duplicative allocated costs of internal counsel) incurred in connection
with any such investigation, litigation or other proceeding or (ii) the
presence or Release of any Materials of Environmental Concern at, under
or from any Property owned, operated or leased by the Borrower or any of
its Subsidiaries, or the failure by the Borrower or any of its Subsidiaries
to comply with any Environmental Law (but excluding, in the case of either
of clause (i) or (ii) above, any such losses, liabilities, claims, damages
or expenses to the extent (A) incurred by reason of gross negligence or
willful misconduct on the part of the Person to be indemnified, (B) owing
to the Borrower or (C) owing to another Person entitled to indemnification
hereunder).

10.6 Amendments, Waivers and Consents.

Neither this Credit Agreement nor any other Credit Document nor any
of the terms hereof or thereof may be amended, changed, waived, discharged
or terminated unless such amendment, change, waiver, discharge or termination
is in writing entered into by, or approved in writing by, the Required
Lenders and the Borrower, provided, however, that:

(a) no such amendment, change, waiver, discharge or termination shall,
without the consent of each Lender directly affected thereby, (i) reduce
the rate or extend the time of payment of interest (other than as a result
of (x) waiving the applicability of any post-default increase in interest
rates or (y) an amendment approved by the Required Lenders as set forth
in the definition of "Applicable Percentage" following the withdrawal by
S&P and Moody's of their ratings on the Borrower's senior unsecured
(non-credit enhanced) long term debt) on any Loan or fees hereunder, (ii)
reduce the rate or extend the time of payment of any fees owing hereunder,
(iii) extend (A) the Commitments of the Lenders, or (B) the final maturity
of any Loan, or any portion thereof, or (iv) reduce the principal amount
on any Loan;
(b) no such amendment, change, waiver, discharge or termination shall,
without the consent of each Lender directly affected thereby, (i) except
as otherwise permitted under Section 3.4(b), increase the Commitments of
the Lenders over the amount thereof in effect (it being understood and
agreed that a waiver of any Default or Event of Default shall not constitute
a change in the terms of any Commitment of any Lender), (ii) amend, modify
or waive any provision of this Section 10.6 or Section 3.6, 3.10, 3.11,
3.12, 3.13, 8.1(a), 10.2, 10.3, 10.5 or 10.9, (iii) reduce or increase
any percentage specified in, or otherwise modify, the definition of "Required
Lenders," or (iv) consent to the assignment or transfer by the Borrower
of any of its rights and obligations under (or in respect of) the Credit
Documents to which it is a party;

(c) no provision of Section 2.3 may be amended without the consent of
the Swingline Lender and no provision of Section 9 may be amended without
the consent of the Administrative Agent; and

(d) designation of the Master Account or of any Financial Officer may
not be made without the written consent of at least two Financial Officers
of the Borrower.

10.7 Counterparts.

This Credit Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but
all of which shall constitute one and the same instrument. It shall not
be necessary in making proof of this Credit Agreement to produce or account
for more than one such counterpart.

10.8 Headings.

The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction
of any provision of this Credit Agreement.

10.9 Survival.

All indemnities set forth herein, including, without limitation, in
Section 3.9, 3.11, 9.7 or 10.5 shall survive the execution and delivery
of this Credit Agreement, the making of the Loans, the repayment of the
Loans and other obligations under the Credit Documents and the termination
of the Commitments hereunder, and all representations and warranties made
by the Borrower herein shall survive delivery of the Notes and the making
of the Loans hereunder.

10.10 Governing Law; Submission to Jurisdiction; Venue.

(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. Any legal action or proceeding with respect to this Credit
Agreement or any other Credit Document may be brought in the courts of
the State of New York in New York County, or of the United States for the
Southern District of New York, and, by execution and delivery of this Credit
Agreement, the Borrower hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the nonexclusive jurisdiction
of such courts. The Borrower further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address set out for notices pursuant
to Section 10.1, such service to become effective three (3) days after
such mailing. Nothing herein shall affect the right of the Administrative
Agent to serve process in any other manner permitted by law or to commence
legal proceedings or to otherwise proceed against the Borrower in any other
jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Credit Agreement
or any other Credit Document brought in the courts referred to in subsection
(a) hereof and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.

(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS AND
THE BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT
AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY.

10.11 Severability.

If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable
and the remaining provisions shall remain in full force and effect and
shall be construed without giving effect to the illegal, invalid or unenforceable
provisions.

10.12 Entirety.

This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all
prior agreements and understandings, oral or written, if any, including
any commitment letters or correspondence relating to the Credit Documents
or the transactions contemplated herein and therein.

10.13 Binding Effect; Termination.

(a) This Credit Agreement shall become effective at such time on or
after the Closing Date when it shall have been executed by the Borrower
and the Administrative Agent, and the Administrative Agent shall have received
copies hereof (telefaxed or otherwise) which, when taken together, bear
the signatures of each Lender, and thereafter this Credit Agreement shall
be binding upon and inure to the benefit of the Borrower, the Administrative
Agent and each Lender and their respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans or any
other amounts payable hereunder or under any of the other Credit Documents
shall remain outstanding and until all of the Commitments hereunder shall
have expired or been terminated.

10.14 Confidentiality.

The Administrative Agent and the Lenders agree to keep confidential
(and to cause their respective affiliates, officers, directors, employees,
agents and representatives to keep confidential) all information, materials
and documents furnished to the Administrative Agent or any such Lender
by or on behalf of the Borrower (whether before or after the Closing Date)
which relates to the Borrower or any of its Subsidiaries (the "Information").
Notwithstanding the foregoing, the Administrative Agent and each Lender
shall be permitted to disclose Information (i) to its affiliates, officers,
directors, employees, agents and representatives in connection with its
participation in any of the transactions evidenced by this Credit Agreement
or any other Credit Documents or the administration of this Credit Agreement
or any other Credit Documents; (ii) to the extent required by applicable
laws and regulations or by any subpoena or similar legal process, or requested
by any Governmental Authority; (iii) to the extent such Information (A)
becomes publicly available other than as a result of a breach of this Credit
Agreement or any agreement entered into pursuant to clause (iv) below,
(B) becomes available to the Administrative Agent or such Lender on a non-confidential
basis from a source other than the Borrower or (C) was available to the
Administrative Agent or such Lender on a non-confidential basis prior to
its disclosure to the Administrative Agent or such Lender by the Borrower;
(iv) to any assignee or participant (or prospective assignee or participant)
so long as such assignee or participant (or prospective assignee or participant)
first specifically agrees in a writing furnished to and for the benefit
of the Borrower to be bound by the terms of this Section 10.14; (v) to
the extent required in connection with the exercise of remedies under this
Credit Agreement or any other Credit Documents; or (vi) to the extent
that the Borrower shall have consented in writing to such disclosure. Nothing
set forth in this Section 10.14 shall obligate the Administrative Agent
or any Lender to return any materials furnished by the Borrower.

10.15 Source of Funds.

Each of the Lenders hereby represents and warrants to the Borrower that
at least one of the following statements is an accurate representation
as to the source of funds to be used by such Lender in connection with
the financing hereunder:

(a) no part of such funds constitutes assets allocated to any separate
account maintained by such Lender in which any employee benefit plan (or
its related trust) has any interest;
(b) to the extent that any part of such funds constitutes assets allocated
to any separate account maintained by such Lender, such Lender has disclosed
to the Borrower the name of each employee benefit plan whose assets in
such account exceed 10% of the total assets of such account as of the date
of such purchase (and, for purposes of this subsection (b), all employee
benefit plans maintained by the same employer or employee organization
are deemed to be a single plan);

(c) to the extent that any part of such funds constitutes assets of
an insurance company's general account, such insurance company has complied
with all of the requirements of the regulations issued under Section 401(c)(1)(A)
of ERISA; or

(d) such funds constitute assets of one or more specific benefit plans
which such Lender has identified in writing to the Borrower.

As used in this Section 10.15, the terms "employee benefit plan" and "separate
account" shall have the respective meanings assigned to such terms in Section
3 of ERISA.

10.16 Conflict.

To the extent that there is a conflict or inconsistency between any
provision hereof, on the one hand, and any provision of any Credit Document,
on the other hand, this Credit Agreement shall control.


[Signature Pages to Follow]


IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Credit Agreement to be duly executed and delivered as of the date
first above written.

 

 

BORROWER:                                  
AUTOZONE, INC.

                                         
                  
a Nevada corporation






By:  /s/ Robert J. Hunt

Name: Robert J. Hunt

Title: EVP & CFO
By: /s/ Harry L. Goldsmith

Name: Harry L. Goldsmith

Title: Sr. V.P. & General Counsel

 












LENDERS:                                      
  
BANK OF AMERICA, N.A.,

                                         
                   
individually in its capacity as a

                                         
                   
Lender and in its capacity as Administrative Agent





By: /s/ Timothy H. Spanos

Name: Timothy H. Spanos

Title: Managing Director











                                          
                 
THE CHASE MANHATTAN BANK





By: /s/ Barry K. Bergman

Name: Barry K. Bergman

Title: Vice President

















BANK ONE, NA
By:  /s/ Catherine A. Muszynski

Name: Catherine A. Muszynski

Title: Vice President

 












                                          
                 
FLEET NATIONAL BANK





By:  /s/ Thomas J. Bullard

Name: Thomas J. Bullard

Title: Director











                                          
                 
THE BANK OF NEW YORK





By:  /s/ Howard F. Bascom, Jr.

Name: Howard F. Bascom, Jr.

Title: Vice President

















 

CITICORP USA, INC.
By:  /s/ Robert Spence

Name:

Title:

 












                                          
                 
FIRST UNION NATIONAL BANK





By:  /s/ Anthony D. Braxton

Name: Anthony D. Braxton

Title: Vice President











                                          
                 
THE FIFTH THIRD BANK





By: /s/ Megan Heisel

Name: Megan Heisel

Title: Large Corporate Accounts











                                          
                 
FIRST TENNESSEE BANK

                                         
                  
NATIONAL ASSOCIATION





By: /s/ James H. Moore, Jr.

Name: James H. Moore, Jr.

Title: Senior Vice President

















FIRSTAR BANK, NA
By: /s/ Amanda Smith

Name: Amanda Smith

Title: Banking Officer

 












                                          
                 
HIBERNIA NATIONAL BANK





By: /s/ Laura K. Watts

Name: Laura K. Watts

Title: Assistant Vice President











                                          
                 
THE INDUSTRIAL BANK OF JAPAN,

                                         
                  
LIMITED





By: /s/ Minami Miure

Name: Minami Miure

Title: Senior Vice President











                                          
                 
KEYBANK NATIONAL ASSOCIATION





By: /s/ Mark A. LoSchiavo

Name: Mark A. LoSchiavo

Title: Assistant Vice President











                                          
                 
MERRILL LYNCH BANK USA





By: /s/ Raymond J. Dardano

Name: Raymond J. Dardano

Title: Senior Credit Officer











                                          
                 
NATIONAL CITY BANK





By: /s/ James Ritchie

Name: James Ritchie

Title: Account Officer

















SUNTRUST BANK
By: /s/ Bryan W. Ford

Name: Bryan W. Ford

Title: Vice President

 












                                          
                 
UNION BANK OF CALIFORNIA, N.A.





By: /s/ J. William Bloore

Name: J. William Bloore

Title: Vice President











                                          
                 
UNION PLANTERS BANK





By:  /s/ Shea Buchignani

Name: Shea Buchignani

Title: Assistant Vice President











                                          
                 
WACHOVIA BANK, N.A.





By:  /s/ Elizabeth Witherspoon

Name: Elizabeth Witherspoon

Title: Assistant Vice President














Schedule 1.1
APPLICABLE PERCENTAGE





	Pricing 

Level	S&P/Moody's

Rating	
Applicable Margin

for

Eurodollar Loans
	
Applicable Margin for Base Rate Loans
	
Applicable Percentage

for 

Facility Fee
	
Applicable Percentage

for

Utilization Premium

	Level I	A-/A3 or above	
37.5 bps
	
0
	
12.5 bps
	
12.5 bps

	Level II	BBB+/Baa1	
47.5 bps
	
0
	
15.0 bps
	
12.5 bps

	Level III	BBB/Baa2 	
57.5 bps
	
0
	
17.5 bps
	
25.0 bps

	Level IV	BBB-/Baa3	
87.5 bps
	
0
	
25.0 bps
	
25.0 bps

	Level V	BB+/Ba1 or below 	
117.5 bps 
	
0
	
32.5 bps
	
25.0 bps




The Applicable Percentage shall be based on the applicable Pricing Level
corresponding to the Rating(s) then in effect. In the event of a Split
Rating, the applicable Pricing Level shall be based on the higher Rating.
In the event of a Double Split Rating, the applicable Pricing Level shall
be based on the Pricing Level which is one above that corresponding to
the lower Rating. If no Rating exists, the applicable Pricing Level shall
be based on Pricing Level V until the earlier of (A) such time as S&P
and/or Moody's provides another Rating or (B) the Required Lenders have
agreed to an alternative pricing grid or other method for determining Pricing
Levels pursuant to an effective amendment to this Credit Agreement.

As used herein:

"Rating" means the senior unsecured (non-credit enhanced) long
term debt rating of the Borrower, as published by S&P and/or Moody's.
"Split Rating" means the ratings of S&P and Moody's would
indicate different Pricing Levels, but the Pricing Levels are not more
than one Pricing Level apart.

"Double Split Rating" means the ratings of S&P and Moody's
would indicate different Pricing Levels, but the Pricing Levels are two
or more Pricing Levels apart.






Schedule 2.1(a)

LENDERS


	

Lender	Commitment

Percentage	Revolving

Commitment
	Bank of America, N.A.

Bank of America Corporate Center

100 N. Tryon Street, 16th Floor

Charlotte, NC 28255

Attn: Timothy H. Spanos 

Tel: (704) 386-4507

Fax: (704) 388-8268	11.53846153%	$75,000,000
	The Chase Manhattan Bank

220 Park Avenue, 48th Floor

New York, NY 10017

Attn: Barry Bergman

Tel: (212) 270-0203

Fax: (212) 270-5646	11.53846153%	$75,000,000
	Fleet National Bank

100 Federal Street

MHDE 10009E

Boston, MA 02110

Attn: Thomas J. Bullard

Tel: (617) 434-3824

Fax: (617) 434-6685	10.96153861%	$71,250,000
	Bank One, NA

1 Bank One Plaza, 14th Floor

IL1-0086

Chicago, IL 60670

Attn: John D. Runger

Tel: (312) 732-7101

Fax: (312) 732-1117	10.96153861%	$71,250,000
	The Bank of New York

One Wall Street, 8th Floor

Retailing Industry Division

New York, NY 10286

Attn: Lucille Cuttone

Telephone: (212) 635-7879

Facsimile: (212) 635-1481	1.92307692%	$12,500,000
	Citicorp USA, Inc.

399 Park Avenue, 5th Floor

New York, NY 10043

Attn: Robert Kane

Tel: (212) 559-3414

Fax: (212) 793-7460	9.61538462%	$62,500,000
	First Union National Bank

PA4843

Widener Building, 12th Floor

1339 Chestnut Street

Philadelphia, PA 19107

Attn: Mark S. Supple

Tel: (215) 973-8933

Fax: (215) 786-2877	9.61538462%	$62,500,000
	The Fifth Third Bank

38 Fountain Square Plaza

MD 109054

Cincinnati, OH 45263

Attn: Megan Heisel

Tel: (513) 744-8662

Fax: (513) 744-5947	1.92307692%	$12,500,000
	First Tennessee Bank National
Association

165 Madison Avenue, 9th Floor

Memphis, TN 38103-2723

Attn: James H. Moore, Jr.

Tel: (901) 523-4108

Fax: (901) 523-4267	1.53846154%	$10,000,000
	Firstar Bank, NA

1 Firstar Plaza, TRAM 12-3

St. Louis, MO 63101-0524

Attn: Amanda Smith

Tel: (314) 418-3638

Fax: (314) 418-1963	3.84615385%	$25,000,000
	Hibernia National Bank

313 Carondelet St.

New Orleans, LA 70130

Attn: Laura K. Watts

Tel: (504) 533-2029

Fax: (504) 533-5344	0.76923077%	$5,000,000
	The Industrial Bank of Japan,
Limited

One Ninety One Peachtree Tower

Suite 3825

191 Peachtree Street, N.E.

Atlanta, GA 30303-1757

Attn: James Masters

Tel: (404) 524-8770 x106

Fax: (404) 524-8509	1.92307692%	$12,500,000
	KeyBank National Association

127 Public Square, OH-01-27-0606

Cleveland, OH 44114-1306

Attn: Mark A. LoSchiavo

Tel: (216) 689-0598

Fax: (216) 689-4981	1.92307692%	$12,500,000
	Merrill Lynch Bank USA

15 W. South Temple, Suite 300

Salt Lake City, UT 84101

Attn: Raymond J. Dardano

Tel: (801) 526-8309

Fax: (801) 363-8611	2.69230769%	$17,500,000
	National City Bank

1900 E. 9th Street, #2077

Cleveland, OH 44114

Attn: James C. Ritchie

Tel: (216) 575-9918

Fax: (216) 22-0003	1.92307692%	$12,500,000
	SunTrust Bank

6410 Poplar Avenue, Suite 320

Memphis, TN 38119

Attn: Bryan W. Ford

Tel: (901) 762-9862

Fax: (901) 766-7565	9.61538462%	$62,500,000
	Union Bank of California, N.A.

350 California Street, 6th Floor

San Francisco, CA 94104

Attn: William Bloore

Tel: (415) 705-5041

Fax: (415) 705-7085	3.84615385%	$25,000,000
	Union Planters Bank

6200 Poplar Avenue, HQ4

Memphis, TN 38119

Attn: Shea Buchignani

Tel: (901) 580-5583

Fax: (901) 580-5451	1.92307692%	$12,500,000
	Wachovia Bank, N.A.

191 Peachtree Street, NE

29th Floor

Atlanta, GA 30303

Attn: Karin E. Reel

Tel: (404) 332-5187

Fax: (404) 332-5016	1.92307692%	$12,500,000
	Total:	100%	$650,000,000.00







Schedule 2.1(b)(i)
FORM OF NOTICE OF BORROWING















Bank of America, N.A.,

as Administrative Agent for the Lenders

Agency Administrative Services

1850 Gateway Boulevard, 5th Floor

Concord, California 94520-3281

Attention: Jennifer Reeves

Ladies and Gentlemen:

The undersigned, AUTOZONE, INC. (the "Borrower"), refers
to the Five-Year Credit Agreement dated as of May 23, 2000 (as amended,
modified, extended or restated from time to time, the "Credit Agreement"),
among the Borrower, the Lenders, Bank of America, N.A., as Administrative
Agent and The Chase Manhattan Bank, as Syndication Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement. The Borrower hereby gives notice
pursuant to Section 2.1 of the Credit Agreement that it requests a Revolving
Loan advance under the Credit Agreement, and in connection therewith sets
forth below the terms on which such Loan advance is requested to be made:

(A)   Date of Borrowing

        (which is a Business Day)    
_______________________

(B)   Principal Amount of

        Borrowing                          
_______________________

(C)   Interest rate basis               
_______________________

(D)   Interest Period and the

        last day thereof                   
_______________________

In accordance with the requirements of Section 4.2, the Borrower hereby
reaffirms the representations and warranties set forth in the Credit Agreement
as provided in subsection (b) of such Section, and confirms that the matters
referenced in subsections (c), (d) and (e) of such Section, are true and
correct.

Very truly yours,

AUTOZONE, INC.

By:

Name:

Title:







Schedule 2.1(e)
FORM OF REVOLVING NOTE


May 23, 2000



 
FOR VALUE RECEIVED, AUTOZONE, INC., a Nevada corporation (the
"Borrower"), hereby promises to pay to the order of __________________________,
its successors and assigns (the "Lender"), at the office of Bank
of America, N.A., as Administrative Agent (the "Administrative Agent"),
at 1850 Gateway Boulevard, 5th Floor, Concord, California 94520-3281,
Attn: Agency Administrative Services (or at such other place or places
as the holder hereof may designate), at the times set forth in the Five-Year
Credit Agreement, dated as of May 23, 2000, among the Borrower, the Lenders,
the Administrative Agent and the Syndication Agent (as it may be amended,
modified, extended or restated from time to time, the "Credit Agreement";
all capitalized terms not otherwise defined herein shall have the meanings
set forth in the Credit Agreement), but in no event later than the Termination
Date, in Dollars and in immediately available funds, the aggregate unpaid
principal amount of all Revolving Loans made by the Lender to the Borrower
pursuant to the Credit Agreement, and to pay interest from the date hereof
on the unpaid principal amount hereof, in like money, at said office, on
the dates and at the rates selected in accordance with Section 2.1(d) of
the Credit Agreement.

Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section
3.1 of the Credit Agreement. Further, in the event the payment of all sums
due hereunder is accelerated under the terms of the Credit Agreement, this
Note, and all other indebtedness of the Borrower to the Lender shall become
immediately due and payable, without presentment, demand, protest or notice
of any kind, all of which are hereby waived by the Borrower.

In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and
interest, all costs of collection, including reasonable attorneys' fees.

All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on a schedule attached hereto and
incorporated herein by reference, or on a continuation thereof which shall
be attached hereto and made a part hereof; provided, however,
that any failure to endorse such information on such schedule or continuation
thereof shall not in any manner affect the obligation of the Borrower to
make payments of principal and interest in accordance with the terms of
this Note.

This Note and the Loans evidenced hereby may be transferred in whole
or in part only by registration of such transfer on the Register maintained
by or on behalf of the Borrower as provided in Section 10.3(c) of the Credit
Agreement.

IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
by its duly authorized officer as of the day and year first above written.

 

AUTOZONE, INC.

By:

Name:

Title:

By:

Name:

Title:

 

 











Schedule 2.2(f)
FORM OF COMPETITIVE NOTE


May 23, 2000



 
FOR VALUE RECEIVED, AUTOZONE, INC., a Nevada corporation (the
"Borrower"), hereby promises to pay to the order of __________________________,
its successors and permitted assigns (the "Lender"), at the office
of Bank of America, N.A., as Administrative Agent (the "Administrative
Agent"), at 1850 Gateway Boulevard, 5th Floor, Concord,
California 94520-3281, Attn: Agency Administrative Services (or at such
other place or places as the holder hereof may designate), at the times
set forth in the Five-Year Credit Agreement, dated as of May 23, 2000,
among the Borrower, the Lenders, the Administrative Agent and the Syndication
Agent (as it may be amended, modified, extended or restated from time to
time, the "Credit Agreement"; all capitalized terms not otherwise
defined herein shall have the meanings set forth in the Credit Agreement),
but in no event later than the Termination Date, in Dollars and in immediately
available funds, the aggregate unpaid principal amount of all Competitive
Loans made by the Lender to the Borrower pursuant to the Credit Agreement,
and to pay interest from the date hereof on the unpaid principal amount
hereof, in like money, at said office, on the dates and at the rates selected
in accordance with Section 2.2 of the Credit Agreement and in the respective
Competitive Bid applicable to each Competitive Loan borrowing evidenced
hereby.

Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section
3.1 of the Credit Agreement. Further, in the event the payment of all sums
due hereunder is accelerated under the terms of the Credit Agreement, this
Note, and all other indebtedness of the Borrower to the Lender shall become
immediately due and payable, without presentment, demand, protest or notice
of any kind, all of which are hereby waived by the Borrower.

In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and
interest, all costs of collection, including reasonable attorneys' fees.

All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on a schedule attached hereto and
incorporated herein by reference, or on a continuation thereof which shall
be attached hereto and made a part hereof; provided, however,
that any failure to endorse such information on such schedule or continuation
thereof shall not in any manner affect the obligation of the Borrower to
make payments of principal and interest in accordance with the terms of
this Note.

This Note and the Loans evidenced hereby may be transferred in whole
or in part only by registration of such transfer on the Register maintained
by or on behalf of the Borrower as provided in Section 10.3(c) of the Credit
Agreement.

IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
by its duly authorized officer as of the day and year first above written.

AUTOZONE, INC.

By:

Name:

Title:

By:

Name:

Title:





Schedule 2.3(d)
FORM OF SWINGLINE NOTE


May 23, 2000



 
FOR VALUE RECEIVED, AUTOZONE, INC., a Nevada corporation (the
"Borrower"), hereby promises to pay to the order of BANK OF AMERICA,
N.A., its successors and assigns (the "Swingline Lender"), at
the office of Bank of America, N.A., as Administrative Agent (the "Administrative
Agent"), at 1850 Gateway Boulevard, 5th Floor, Concord,
California 94520-3281, Attn: Agency Administrative Services (or at such
other place or places as the holder hereof may designate), at the times
set forth in the Five-Year Credit Agreement, dated as of May 23, 2000,
among the Borrower, the Swingline Lender the other Lenders, the Administrative
Agent and the Syndication Agent (as it may be amended, modified, extended
or restated from time to time, the "Credit Agreement"; all capitalized
terms not otherwise defined herein shall have the meanings set forth in
the Credit Agreement), but in no event later than the Termination Date,
in Dollars and in immediately available funds, the aggregate unpaid principal
amount of all Swingline Loans made by the Swingline Lender to the Borrower
pursuant to the Credit Agreement, and to pay interest from the date hereof
on the unpaid principal amount hereof, in like money, at said office, on
the dates and at the rates selected in accordance with Section 2.3(c) of
the Credit Agreement.

Upon the occurrence and during the continuance of an Event of Default,
the balance outstanding hereunder shall bear interest as provided in Section
3.1 of the Credit Agreement. Further, in the event the payment of all sums
due hereunder is accelerated under the terms of the Credit Agreement, this
Note, and all other indebtedness of the Borrower to the Swingline Lender
shall become immediately due and payable, without presentment, demand,
protest or notice of any kind, all of which are hereby waived by the Borrower.

In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and
interest, all costs of collection, including reasonable attorneys' fees.

All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on a schedule attached hereto and
incorporated herein by reference, or on a continuation thereof which shall
be attached hereto and made a part hereof; provided, however,
that any failure to endorse such information on such schedule or continuation
thereof shall not in any manner affect the obligation of the Borrower to
make payments of principal and interest in accordance with the terms of
this Note.

This Note and the Loans evidenced hereby may be transferred in whole
or in part only by registration of such transfer on the Register maintained
by or on behalf of the Borrower as provided in Section 10.3(c) of the Credit
Agreement.

IN WITNESS WHEREOF, the Borrower has caused this Note to be duly executed
by its duly authorized officer as of the day and year first above written.

 

 

AUTOZONE, INC.

By:

Name:

Title:

By:

Name:

Title:






Schedule 3.2

FORM OF NOTICE OF EXTENSION/CONVERSION


Bank of America, N.A.,

as Administrative Agent for the Lenders

1850 Gateway Boulevard, 5th Floor

Concord, California 94520-3281

Attn: Agency Administrative Services

Ladies and Gentlemen:

The undersigned, AutoZone, Inc. (the "Borrower"),
refers to the Five-Year Credit Agreement dated as of May 23, 2000 (as amended,
modified, extended or restated from time to time, the "Credit Agreement"),
among the Borrower, the Lenders, Bank of America, N.A., as Administrative
Agent and The Chase Manhattan Bank, as Syndication Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement. The Borrower hereby gives notice
pursuant to Section 3.2 of the Credit Agreement that it requests an extension
or conversion of a Revolving Loan outstanding under the Credit Agreement,
and in connection therewith sets forth below the terms on which such extension
or conversion is requested to be made:

(A)     Date of Extension or Conversion

         
(which is the last day of the

          
the applicable Interest Period)        
_______________________

(B)     Principal Amount of

         
Extension or Conversion                  
_______________________

(C)     Interest rate basis                            
_______________________

(D)     Interest Period and the

          
last day thereof                               
_______________________

In accordance with the requirements of Section 4.2, the
Borrower hereby reaffirms the representations and warranties set forth
in the Credit Agreement as provided in subsection (b) of such Section,
and confirms that the matters referenced in subsections (c), (d) and (e)
of such Section, are true and correct.

Very truly yours,

AUTOZONE, INC.

By:

Name:

Title:







Schedule 3.4(b)
FORM OF

NEW COMMITMENT AGREEMENT


Reference is made to the Five-Year Credit Agreement dated as of May
23, 2000, as amended and modified from time to time thereafter (the "Credit
Agreement") among AutoZone, Inc., the Lenders party thereto, Bank of
America, N.A., as Administrative Agent and The Chase Manhattan Bank, as
Syndication Agent. Terms defined in the Credit Agreement are used herein
with the same meanings.

1. The undersigned Lender hereby confirms its Commitment, effective
as of the Effective Date set forth below, to make Loans under the Credit
Agreement up to the principal amount of such Commitment as set forth below.
If the undersigned Lender is already a Lender under the Credit Agreement,
such Lender acknowledges and agrees that such Commitment is in addition
to any existing Commitment of such Lender under the Credit Agreement. If
the undersigned Lender is not already a Lender under the Credit Agreement,
such Lender hereby acknowledges, agrees and confirms that, by its execution
of this New Commitment Agreement, such Lender will, as of the Effective
Date, be a party to the Credit Agreement and be bound by the provisions
of the Credit Agreement and, to the extent of its Commitment, have the
rights and obligations of a Lender thereunder.

2. This New Commitment Agreement shall be governed by and construed
in accordance with the laws of the State of New York.

3. This New Commitment Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but
all of which shall constitute one and the same instrument. It shall not
be necessary in making proof of this New Commitment Agreement to produce
or account for more than one such counterpart.

 

Amount of Revolving Commitment $____________________

Effective Date of Revolving Commitment _____________________, 20___

The terms set forth above

are hereby agreed to:

 

[Lender]

By:

Name:

Title:

 

 

CONSENTED TO:

BANK OF AMERICA, N.A.,

as Administrative Agent

By:

Name:

Title:

 

 

AUTOZONE, INC.

By:

Name:

Title:






Schedule 4.1(f)

FORM OF LEGAL OPINION

This is the form of legal opinion delivered by
AutoZone

in connection with prior AutoZone credit facilities.

[DATE]


Bank of America, N.A., as Administrative Agent,

and each of the Lenders party to the

Credit Agreements referred to below

c/o Bank of America, N.A.

Agency Administrative Services

1850 Gateway Boulevard, 5th Floor

Concord, California 94520-3281

RE: AutoZone, Inc. 364-Day Syndicated Credit Agreement

Ladies and Gentlemen:

I am the Senior Vice President, Secretary and General Counsel of AutoZone,
Inc., a Nevada corporation ("AutoZone"), and am familiar with the transactions
contemplated by the Credit Agreement dated as of November 13, 1998, as
amended by that certain Amendment No. 1 to Credit Agreement dated as of
July 16, 1999 among AutoZone, Inc., as Borrower, the several Lenders from
time to time party thereto, Bank of America, N.A. as Agent, SunTrust Bank,
Nashville, N.A., as Syndication Agent and The First National Bank of Chicago,
as Documentation Agent ("Credit Agreement"). Unless the context otherwise
requires, all terms used in this opinion which are specifically defined
in the Credit Agreement shall have the meanings given such terms in the
Credit Agreement.

In connection with the opinions expressed below, I have examined, or
caused to be examined, the Credit Documents. I have relied upon the representations
and warranties contained in each of such documents and upon originals or
copies, certified or otherwise identified to my satisfaction, of such corporate
records, documents and other instruments as in my judgment are relevant
to rendering the opinions expressed below. As to all matters of fact covered
by such documents, I have relied, without independent investigation or
verification on such documents. In such examination, I have assumed that
each of the parties to the Credit Agreement, other than AutoZone, had and
has, as the case may be, full power, authority and legal right to enter
into each Credit Document to which it is a party and that each such Credit
Document was or has been, as the case may be, duly authorized, executed
and delivered by each of such parties.

Based on the foregoing, it is my opinion that:

(i) Each of the Company and its subsidiaries has been duly organized
and is validly existing as a corporation or limited partnership under the
laws of the jurisdiction of its organization, with corporate or partnership,
as the case may be, power and authority to own its properties and conduct
its ordinary course of business;
(ii) Each of the Company and its subsidiaries has been duly qualified
as a foreign corporation or limited partnership, as the case may be, for
the transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties, or conducts any business,
so as to require such qualification, or is subject to no material liability
or disability by reason of failure to be so qualified in any such jurisdiction;

(iii) Each of the Credit Documents to which AutoZone is a party, was
or has been, as the case may be, duly authorized, executed and delivered
by AutoZone and together constitute the legal, valid and binding obligations
of AutoZone enforceable against AutoZone in accordance with its and their
terms.

The opinions expressed in paragraph (iii) above are based upon the assumption
for purposes of such opinions and without independent analysis that notwithstanding
the respective choice of law clauses in the Credit Documents, the governing
law with respect to each of the Credit Documents is identical in all relevant
respects to the law of the State of Tennessee. Insofar as such opinion
relates to the enforceability of any instrument, such enforceability is
subject to applicable bankruptcy, insolvency and other similar laws affecting
the enforcement of creditors' rights generally whether such enforceability
is considered in a proceeding in equity or at law). The enforceability
of the remedies provided under the Credit Agreement may also be limited
by applicable laws which may affect the remedies provided therein but which
do not in my opinion affect the validity of the Credit Agreement or make
such remedies inadequate for the practical realization of the benefits
intended to be provided.

I do not express any opinion as to matters governed by any law other
than the Federal laws of the United States of America, the corporation
law of the State of Nevada and the laws of the State of Tennessee. Further,
I express no opinion as to the enforceability of the choice of law provisions
contained in any of the Credit Documents.

This opinion is rendered solely for your benefit in connection with
the transactions described above. This opinion may not be used or relied
upon by any other person, and may not be disclosed, quoted, filed with
a governmental agency or otherwise referred to without my prior written
consent except to your bank examiners, auditors and counsel and to prospective
transferees of your interests under the Credit Documents and their professional
advisers, or as required by law or pursuant to legal process.

Very truly yours,

 

 

Harry L. Goldsmith






Schedule 5.5

MATERIAL LITIGATION


Quinnie

AutoZone, Inc., is a defendant in a purported class action lawsuit entitled
"Melvin Quinnie on behalf of all others similarly situated v. AutoZone,
Inc., and DOES 1 through 100, inclusive" filed in the Superior Court of
California, County of Los Angeles, in November 1998. The plaintiff claims
that the defendants failed to pay overtime to store managers as required
by California law and failed to pay terminated managers in a timely manner
as required by California law. The plaintiff is seeking injunctive relief,
restitution, statutory penalties, prejudgment interest, and reasonable
attorneys' fees, expenses and costs. On April 3, 2000, the court certified
the class as consisting of all AutoZone store managers, and Chief managers
who became AutoZone employees in standardized stores on January 1, 1999,
for their claims since January 1, 1999, only. The Company will continue
to vigorously defend this action.

Rusch

AutoZone, Inc., and Chief Auto Parts Inc. are defendants in a purported
class action lawsuit entitled "Paul D. Rusch, on behalf of all other similarly
situated, v. Chief Auto Parts Inc. and AutoZone, Inc." filed in the Superior
Court of California, County of Los Angeles, in May 1999. The plaintiffs
claim that the defendants have failed to pay their store managers overtime
pay from March 1997 to the present. The plaintiffs are seeking back overtime
pay, interest, an injunction against the defendants committing such practices
in the future, costs, and attorneys' fees. We are unable to predict the
outcome of this lawsuit at this time, but believe that the potential damages
recoverable by any single plaintiff against us are minimal. However, if
the plaintiff class were to be certified and to prevail on all of its claims,
the aggregate amount of damages could be substantial. We are vigorously
defending against this action.

Coalition For a Level Playing Field

AutoZone, Inc., is a defendant in a lawsuit entitled "Coalition for
a Level Playing Field, L.L.C., et al., v. AutoZone, Inc., et
al.," filed in the U.S. District Court for the Eastern District of
New York on February 16, 2000. The case was filed by over 100 plaintiffs,
which are principally automotive aftermarket warehouse distributors and
jobbers, against eight defendants, which are principally automotive aftermarket
parts dealers. The plaintiffs claim that the defendants have knowingly
receiving volume discounts, rebates, slotting and other allowances, fees,
free inventory, sham advertising and promotional payments, a share in the
manufacturers' profits, and excessive payments for services purportedly
performed for the manufacturers in violation of the Robinson Patman Act.
Plaintiffs seek approximately $1 billion in damages (including statutory
trebling) and a permanent injunction prohibiting defendants from committing
further violations of the Robinson-Patman Act and from opening up any further
stores to compete with plaintiffs as long as defendants continue to violate
the Act. The Company believes this suit to be without merit and will vigorously
defend against it.

 

Newlin

AutoZone, Inc., is a defendant in a lawsuit entitled "Ty Newlin, individually,
and on behalf of others similarly situated, v. AutoZone, Inc., and Does
1 through 50, inclusive," filed in the Kern County, California, Superior
Court on May 9, 2000. The plaintiff, on behalf of a class of employees,
alleges that AutoZone failed to pay overtime to its store management employees.
The plaintiff is seeking unpaid overtime compensation, penalties, punitive
damages, interest, attorneys' fees, and an injunction requiring AutoZone
to pay overtime compensation as required under California and federal law.
The Company intends to vigorously defend this action.

 

 











Schedule 5.12
SUBSIDIARIES


AutoZone, Inc. as of May 17, 2000

Status: Active

Incorporation Nevada

Federal ID# 62-1482048

 

Subsidiaries

ADAP, Inc.

ALLDATA LLC

AutoZone de Mexico, S. de R.L. de C.V.

AutoZone Development Corporation

AutoZone Properties, Inc.

AutoZone Stores, Inc.

AutoZone Texas, L.P.

AutoZone.com, Inc.

AutoZoners, Inc.

BBH Development, Inc.

Chief Auto Parts, Inc.

DataZone, S. de R.L. de C.V.

ServiceZone, S. de R. L. de C.V.

Speedbar, Inc.

TruckZone, Inc.

Zone Compra, S. de R.L. de C.V.

 

 











Schedule 6.1(c)
FORM OF OFFICER'S COMPLIANCE CERTIFICATE


For the fiscal quarter ended _________________, 20___.

I, ______________________, [Title] of AutoZone, Inc. (the "Borrower")
hereby certify that, to the best of my knowledge and belief, with respect
to that certain Five-Year Credit Agreement dated as of May 23, 2000 (as
amended, modified, extended or restated from time to time, the "Credit
Agreement"; all of the defined terms in the Credit Agreement are incorporated
herein by reference) among the Borrower, the Lenders party thereto, Bank
of America, N.A., as Administrative Agent and The Chase Manhattan Bank,
as Syndication Agent:

a. The company-prepared financial statements which accompany this
certificate are true and correct in all material respects and have been
prepared in accordance with GAAP applied on a consistent basis, subject
to changes resulting from normal year-end audit adjustments.
b. Since ___________ (the date of the last similar certification, or,
if none, the Closing Date) no Default or Event of Default has occurred
under the Credit Agreement; and



Delivered herewith are detailed calculations demonstrating compliance by
the Borrower with the financial covenants contained in Section 6.10 and
Section 6.11 of the Credit Agreement as of the end of the fiscal period
referred to above.

This ______ day of ___________, 20__.

 

 

AUTOZONE, INC.

By:

Name:

Title:






Attachment to Officer's Certificate

Computation of Financial Covenants

 

 

 






Schedule 7.5
SUBSIDIARY INDEBTEDNESS

















AutoZone, Inc. as of May 6, 2000

Subsidiary Indebtedness

Indebtedness

Subsidiary as of 5/06/00

Chief Auto Parts, Inc. $5,021,898.47

TruckZone, Inc. $64,331.40

AutoZone Texas, L.P. $18,325,000.00






Schedule 10.3(b)

FORM OF ASSIGNMENT AND ACCEPTANCE


THIS ASSIGNMENT AND ACCEPTANCE dated as of _______________, 2000 is
entered into between ________________ ("Assignor") and ____________________
("Assignee").

Reference is made to the Five-Year Credit Agreement dated as of May
23, 2000, as amended and modified from time to time thereafter (the "Credit
Agreement") among AutoZone, Inc., the Lenders party thereto, Bank of
America, N.A., as Administrative Agent and The Chase Manhattan Bank, as
Syndication Agent. Terms defined in the Credit Agreement are used herein
with the same meanings.

1. The Assignor hereby sells and assigns, without recourse, to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, effective
as of the Effective Date set forth below, the interests set forth below
(the "Assigned Interest") in the Assignor's rights and obligations
under the Credit Agreement, including, without limitation, the interests
set forth below in the Commitments and outstanding Loans of the Assignor
on the effective date of the assignment designated below (the "Effective
Date"), together with unpaid Fees accrued on the assigned Commitments
to the Effective Date and unpaid interest accrued on the assigned Loans
to the Effective Date. Each of the Assignor and the Assignee hereby makes
and agrees to be bound by all the representations, warranties and agreements
set forth in Section 10.3(b) of the Credit Agreement, a copy of which has
been received by the Assignee. From and after the Effective Date (i) the
Assignee, if it is not already a Lender under the Credit Agreement, shall
be a party to and be bound by the provisions of the Credit Agreement and,
to the extent of the interests purchased and assumed by the Assignee under
this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the interests
sold and assigned by the Assignor under this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.

2. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.

3. Terms of Assignment

(a)     Date of Assignment:

(b)     Legal Name of Assignor:

(c)     Legal Name of Assignee:

(d)     Effective Date of Assignment:

(e)     Revolving Commitment of Assignee

          after giving
effect to this

          Assignment and
Acceptance as

          of the Effective
Date                                         
       
$_________________

(f)     Revolving Commitment of Assignor

         after giving effect
to this

        Assignment and Acceptance
as

        of the Effective Date                               
                    
$_________________

(g)     Commitment Percentage of Assignee

         after giving effect
to this

        Assignment and Acceptance

        as of the Effective Date

        (set forth to at least 8
decimals)                                         
                              
%

(h)    Commitment Percentage of Assignor

        after giving effect to this

        Assignment and Acceptance

        as of the Effective Date

        (set forth to at least 8
decimals)                                         
                                
%

4. This Assignment and Acceptance shall be effective only upon consent
of the Borrower and the Administrative Agent, if applicable, delivery to
the Administrative Agent of this Assignment and Acceptance together with
the transfer fee payable pursuant to Section 10.3(b) in connection herewith
and recordation in the Register pursuant to Section 10.3(b) of the terms
hereof.

5. This Assignment and Acceptance may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but
all of which shall constitute one and the same instrument. It shall not
be necessary in making proof of this Assignment and Acceptance to produce
or account for more than one such counterpart.

The terms set forth above

are hereby agreed to:

____________________, as Assignor

By:

Name:

Title:

 

 

_____________________, as Assignee

By:

Name:

Title:

Notice address of Assignee:

<<Assignee>>

__________________________

__________________________

Attn:_____________________

Telephone: (___) ________

Telecopy: (___) ________

 

 

CONSENTED TO:

BANK OF AMERICA, N.A.,

as Administrative Agent

By:

Name:

Title:

 

AUTOZONE, INC.

By:

Name:

Title: