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Exhibit 10(l)
EXECUTION COPY
U.S.
$1,000,000,000
BRIDGE
CREDIT AGREEMENT
Dated as of
April 30, 2007
Among
XEROX
CORPORATION
as
Borrower
--
--------
and
THE INITIAL
LENDERS NAMED HEREIN
as Initial
Lenders
-- -------
-------
and
CITIBANK, N.A.
as
Administrative Agent
--
-------------- -----
and
JPMORGAN
CHASE BANK, N.A.
as Syndication
Agent
--
-----------------
and
CITIGROUP
GLOBAL MARKETS INC.
and
J.P. MORGAN SECURITIES INC.
as Joint Lead Arrangers
and Joint Bookrunners
-- ----- ---- ---------
--- ----- -----------
<PAGE>
TABLE OF
CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 16
SECTION 1.03. Accounting Terms 16
ARTICLE II
SECTION 2.01. The Advances 17
SECTION 2.02. Making the Advances 17
SECTION 2.03. Fees
18
SECTION 2.04. Termination or Reduction of the
Commitments 18
SECTION 2.05. Repayment of Advances 19
SECTION 2.06. Interest on Advances 19
SECTION 2.07. Interest Rate Determination 19
SECTION 2.08. Optional Conversion of Advances 21
SECTION 2.09. Prepayments of Advances 21
SECTION 2.10. Increased Costs 21
SECTION 2.11. Illegality 22
SECTION 2.12. Payments and Computations 23
SECTION 2.13. Taxes 24
SECTION 2.14. Sharing of Payments, Etc. 26
SECTION 2.15. Evidence of Debt 26
SECTION 2.16. Use of Proceeds 27
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness 27
<PAGE>
SECTION 3.02. Conditions Precedent to Each Borrowing. 28
SECTION 3.03. Determinations Under Section 3.01 29
ARTICLE IV
SECTION 4.01. Representations and Warranties of the
Borrower 29
ARTICLE V
SECTION 5.01. Affirmative Covenants 31
SECTION 5.02. Negative Covenants 34
SECTION 5.03. Financial Covenants 38
ARTICLE VI
SECTION 6.01. Events of Default 39
ARTICLE VII
SECTION 7.01. Authorization and Action 41
SECTION 7.02. Agent's Reliance, Etc. 42
SECTION 7.03. Citibank and Affiliates 42
SECTION 7.04. Lender Credit Decision 42
SECTION 7.05. Indemnification 42
SECTION 7.06. Successor Agent 43
SECTION 7.07. Other Agents. 44
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 44
SECTION 8.02. Notices, Etc. 44
SECTION 8.03. No Waiver; Remedies 45
SECTION 8.04. Costs and Expenses 45
SECTION 8.05. Right of Set-off 47
ii
<PAGE>
SECTION 8.06. Binding Effect 47
SECTION 8.07. Assignments and Participations 47
SECTION 8.08. Confidentiality 50
SECTION 8.08.
Governing Law 50
SECTION 8.09. Execution in Counterparts 50
SECTION 8.10. Jurisdiction, Etc. 50
SECTION 8.11. Patriot Act Notice 51
SECTION 8.12. Waiver of Jury Trial 52
Schedules
---------
Schedule I - List of Applicable Lending Offices
Schedule 5.02(a) - Existing Liens
Exhibits
--------
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of Counsel for the Borrower
Exhibit D-2 - Form of Opinion of General Counsel of the
Borrower
iii
<PAGE>
BRIDGE
CREDIT AGREEMENT
Dated as of
April 30, 2007
XEROX CORPORATION, a
New York corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders (the
"Initial
Lenders") listed on Schedule I hereto, CITIBANK, N.A.
("Citibank"), as
administrative agent (the "Agent") for the Lenders (as hereinafter
defined),
JPMORGAN CHASE BANK, N.A., as syndication agent, and CITIGROUP GLOBAL MARKETS
INC. and J.P. MORGAN SECURITIES INC., as Joint Lead Arrangers and Joint
Bookrunners, agree as follows:
ARTICLE I
DEFINITIONS AND
ACCOUNTING TERMS
SECTION 1.01. Certain
Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Advance"
means an advance by a Lender to the Borrower as part
of a Borrowing and refers to a
Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be
a "Type" of Advance).
"Affiliate"
means, as to any Person, any other Person that,
directly or indirectly,
Controls, is Controlled by or is under common
Control with such Person or is a
director of such Person.
"Agent's
Account" means the account of the Agent maintained by
the Agent at Citibank at its
office at Two Penns Way, New Castle,
Delaware 19720, Account No.
36852248, Attention: Bank Loan
Syndications.
"Applicable
Lending Office" means, with respect to each
Lender, such Lender's Domestic
Lending Office in the case of a Base
Rate Advance and such Lender's
Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable
Margin" means, as of any date, a percentage per
annum determined by reference to
the Public Debt Rating in effect on
such date as set forth below:
----------------------------------- -----------------------
Public Debt Rating
S&P/Moody's/Fitch Applicable Margin
----------------------------------- -----------------------
Level 1
A-/A3/A- or better 0.200%
----------------------------------- -----------------------
Level 2
BBB+/Baa1/BBB+ 0.290%
----------------------------------- -----------------------
Level 3
BBB/Baa2/BBB 0.370%
-----------------------------------
-----------------------
<PAGE>
----------------------------------- -----------------------
Level 4
BBB-/Baa3/BBB- 0.450%
----------------------------------- -----------------------
Level 5
BB+/Ba1/BB+ 0.575%
----------------------------------- -----------------------
Level 6
BB/Ba2/BB or below 0.775%
-----------------------------------
-----------------------
"Applicable
Percentage" means, as of any date, a percentage
per annum determined by
reference to the Public Debt Rating in effect
on such date as set forth below:
----------------------------------- -----------------------
Public Debt Rating
S&P/Moody's/Fitch Applicable Percentage
----------------------------------- -----------------------
Level 1
A-/A3/A- or better 0.050%
----------------------------------- -----------------------
Level 2
BBB+/Baa1/BBB+ 0.060%
-----------------------------------
-----------------------
Level 3
BBB/Baa2/BBB 0.080%
----------------------------------- -----------------------
Level 4
BBB-/Baa3/BBB- 0.100%
----------------------------------- -----------------------
Level 5
BB+/Ba1/BB+ 0.125%
----------------------------------- -----------------------
Level 6
BB/Ba2/BB or below 0.175%
----------------------------------- -----------------------
"Assignment and
Acceptance" means an assignment and acceptance
entered into by a Lender and an
Eligible Assignee, and accepted by the
Agent, in substantially the form
of Exhibit C hereto.
"Base Rate"
means a fluctuating interest rate per annum in
effect from time to time, which
rate per annum shall at all times be
equal to the highest of:
(a) the rate
of interest announced publicly by
Citibank in New York,
New York, from time to time, as
Citibank's base rate;
(b) the sum
(adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4
of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1%, plus
(ii) the rate obtained by dividing (A)
the latest three-week
moving average of secondary market
morning offering rates
in the United States for three-month
certificates of deposit
of major United States money market
banks, such three-week
moving average (adjusted to the basis
of a year of 360 days)
being determined weekly on each Monday
(or, if such day is not
a Business Day, on the next succeeding
Business Day) for the
three-week period ending on the previous
Friday by Citibank on
the basis of such rates reported by
certificate of deposit
dealers to and published by the Federal
Reserve Bank of New
York or, if such publication shall be
suspended or
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<PAGE>
terminated, on the
basis of quotations for such rates received
by Citibank from three
New York certificate of deposit dealers
of recognized standing
selected by Citibank, by (B) a
percentage equal to
100% minus the average of the daily
percentages specified
during such three-week period by the
Board of Governors of
the Federal Reserve System (or any
successor) for
determining the maximum reserve requirement
(including, but not
limited to, any emergency, supplemental or
other marginal reserve
requirement) for Citibank with respect
to liabilities
consisting of or including (among other
liabilities)
three-month U.S. dollar non-personal time
deposits in the United
States, plus (iii) the average during
such three-week period
of the annual assessment rates
estimated by Citibank for
determining the then current annual
assessment payable by
Citibank to the Federal Deposit
Insurance Corporation
(or any successor) for insuring U.S.
dollar deposits of
Citibank in the United States; and
(c) 1/2 of 1%
above the Federal Funds Rate.
"Base Rate
Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrowing"
means a borrowing consisting of simultaneous
Advances of the same Type made
by each of the Lenders.
"Borrowing
Minimum" means $10,000,000.
"Borrowing
Multiple" means $1,000,000.
"Business
Day" means a day of the year on which banks are not
required or authorized by law to
close in New York City and, if the
applicable Business Day relates
to any Eurodollar Rate Advances, on
which dealings are carried on in
the London interbank market and banks
are open for business in London.
"Citibank"
means Citibank, N.A.
"Commitment"
means as to any Lender (a) the Dollar amount set
forth opposite such Lender's
name on Schedule I hereto as such Lender's
"Commitment" or (b) if
such Lender has entered into an Assignment and
Acceptance, the Dollar amount
set forth for such Lender in the Register
maintained by the Agent pursuant
to Section 8.07(d), as such amount may
be reduced pursuant to Section
2.04. As of the Effective Date, the
aggregate amount of the
Commitments is $1,000,000,000.
"Company
Information" has the meaning specified in Section
8.08.
"Consolidated" refers to the
consolidation of accounts in
accordance with GAAP.
"Consolidated
EBITDA" means, for any period, net income (or
net loss) (before discontinued
operations) plus the sum of (a)
Consolidated Interest Expense,
(b) income tax expense, (c) depreciation
expense, (d) amortization
expense, and (e) any losses or expenses from
any unusual, extraordinary or
otherwise non-recurring items, including
but
3
<PAGE>
not limited to (i) aggregate
foreign exchange losses included in "other
expense" and (ii) losses
from minority interest, and minus (x)
Consolidated Interest Income and
(y) the sum of the amounts for such
period of any income tax
benefits and any income or gains from any
unusual, extraordinary or
otherwise non-recurring items, including but
not limited to (i) aggregate
foreign exchange gains included in "other
income" and (ii) income from minority
interest; in each case determined
on a Consolidated basis for the
Borrower and its Subsidiaries and in
the case of items (a) through
(e) and items (x) and (y), to the extent
such amounts were included in
the calculation of net income. For the
purposes of calculating
Consolidated EBITDA for any period, if during
such period the Borrower or any
Subsidiary shall have made an
acquisition or a disposition,
Consolidated EBITDA for such period shall
be calculated after giving pro
forma effect thereto as if such
acquisition or disposition, as
the case may be, occurred on the first
day of such period.
"Consolidated
Interest Expense" means, for any period, for the
Borrower and its Subsidiaries on
a Consolidated basis, interest expense
(including equipment financing
interest) for such period, determined in
accordance with GAAP.
"Consolidated
Interest Income" means, for any period, for the
Borrower and its Subsidiaries on
a Consolidated basis, interest, fees
and other income, arising from
investments in cash and cash
equivalents, included in
Consolidated net income for such period,
determined in accordance with
GAAP.
"Control"
means the possession, direct or indirect, of the
power to direct or cause the
direction of the management and policies
of such Person, whether through
the ability to exercise voting power,
by contract or otherwise.
"Controlling" and "Controlled" have meanings
correlative thereto.
"Convert",
"Conversion" and "Converted" each refers to a
conversion of Advances of one
Type into Advances of the other Type
pursuant to Section 2.07 or
2.08.
"Debt" of any
Person means, without duplication, (a) all
indebtedness of such Person for
borrowed money, (b) all obligations of
such Person for the deferred purchase price
of property or services
(other than current trade
payables incurred in the ordinary course of
such Person's business), (c) all
obligations of such Person evidenced
by notes, bonds, debentures or
other similar instruments, (d) all
obligations of such Person
created or arising under any conditional
sale or other title retention
agreement (other than under any such
agreement which constitutes or
creates an account payable in the
ordinary course of business)
with respect to property acquired by such
Person (even though the rights
and remedies of the seller or lender
under such agreement in the
event of default are limited to
repossession or sale of such
property), (e) all obligations of such
Person as lessee under leases
that have been or should be, in
accordance with GAAP, recorded
as capital leases, (f) all obligations,
contingent or otherwise, of such
Person in respect of bankers'
acceptances, letters of credit
or similar bank guarantees (other than
bankers' acceptances, letters of
credit or similar bank guarantees
issued in support of trade), (g)
all Debt of others referred to in
clauses (a) through (f) above or
clause (h) below (collectively,
"Guaranteed Debt")
guaranteed directly or indirectly in any manner by
such
4
<PAGE>
Person, or in effect guaranteed
directly or indirectly by such Person
through an agreement (1) to pay
or purchase such Guaranteed Debt or to
advance or supply funds for the
payment or purchase of such Guaranteed
Debt, (2) to purchase, sell or
lease (as lessee or lessor) property, or
to purchase or sell services,
with the primary intent and purpose of
such Person being to enable the
debtor to make payment of such
Guaranteed Debt or to assure the
holder of such Guaranteed Debt against
loss, (3) to supply funds to or
in any other manner invest in the
debtor (including any agreement
to pay for property or services
irrespective of whether such
property is received or such services are
rendered), with the primary
intent and purpose of such Person being to
enable the debtor to make
payment of such Guaranteed Debt or to assure
the holder of such Guaranteed
Debt against loss, or (4) where the
primary intent and purpose of such
Person is to otherwise assure a
creditor against loss (but, in
each case, only to the extent so assured
or guaranteed), and (h) all Debt
referred to in clauses (a) through (g)
above (including Guaranteed
Debt) secured by (or for which the holder
of such Debt has an existing
right, contingent or otherwise, to be
secured by) any Lien on property
(including, without limitation,
accounts and contract rights)
owned by such Person, even though such
Person has not assumed or become liable for
the payment of such Debt.
"Debt for Borrowed
Money" means all items that, in accordance
with GAAP, would be classified
as debt on the Borrower's Consolidated
balance sheet, provided, that
notwithstanding the treatment thereof
under GAAP, "Debt for
Borrowed Money" shall exclude (without
duplication) (a) any Trust
Preferred Securities and Preferred Stock
outstanding on the date hereof
and (b) any amount shown on such balance
sheet in respect of any
securities issued on or prior to Effective Date
that are Qualified Equity
Securities on such date of determination.
"Default"
means any Event of Default or any event that, unless
cured or waived, would
constitute an Event of Default but for the
requirement hereunder that
notice be given or time elapse or both.
"Disclosed
Matter" shall mean the existence or occurrence of
any matter which has been
disclosed either in writing by the Borrower
to the Agent or the Lenders or
in any filing made with the SEC, in each
case prior to the Effective
Date.
"Disqualified
Equity Securities" means that portion of any
Equity Interest (other than such
Equity Interest that is solely
redeemable, or at the election
of the Borrower (not subject to any
condition), may be redeemed,
with Qualified Equity Securities) which,
by its terms (or by the terms of
any security into which it is
convertible or for which it is
exchangeable at the option of the holder
thereof), or upon the happening
of any event, matures or is mandatorily
redeemable, pursuant to a
sinking fund obligation or otherwise, or is
redeemable at the sole option of
the holder thereof on or prior to the
Termination Date.
"Dollars" and
the "$" sign each means lawful currency of the
United States of America.
5
<PAGE>
"Domestic Lending
Office" means, with respect to any Lender,
the office of such Lender
specified as its "Domestic Lending Office"
opposite its name on Schedule I
hereto or in the Assignment and
Acceptance pursuant to which it
became a Lender, or such other office
of such Lender as such Lender
may from time to time specify to the
Borrower and the Agent.
"Domestic
Subsidiary" means a Subsidiary of the Borrower
organized under the laws of a
jurisdiction inside the United States.
"Effective
Date" has the meaning specified in Section 3.01.
"Eligible
Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other
Person approved by the Agent and, unless an
Event of Default has occurred
and is continuing at the time any
assignment is effected in
accordance with Section 8.07, the Borrower,
such approvals not to be unreasonably
withheld or delayed; provided,
however, that neither the
Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible
Assignee.
"Environmental
Action" means any action, suit, demand, demand
letter, claim, notice of
non-compliance or violation, notice of
liability or potential
liability, investigation, proceeding, consent
order or consent agreement
relating in any way to any Environmental
Law, Environmental Permit or Hazardous
Materials or arising from
alleged injury or threat of
injury to environment, including, without
limitation, (a) by any
governmental or regulatory authority for
enforcement, cleanup, removal,
response, remedial or other actions or
damages and (b) by any
governmental or regulatory authority or any
third party for damages,
contribution, indemnification, cost recovery,
compensation or injunctive
relief.
"Environmental Law" means any
federal, state, local or foreign
statute, law, ordinance, rule,
regulation, code, order, judgment,
decree or judicial
interpretation, policy or guidance relating to
pollution or protection of the
environment or natural resources,
including, without limitation,
those relating to the use, handling,
transportation, treatment,
storage, disposal, release or discharge of
Hazardous Materials.
"Environmental
Permit" means any permit, approval,
identification number, license
or other authorization required under
any Environmental Law.
"Equity
Interests" means (a) shares of capital stock,
partnership interests, membership
interests in a limited liability
company, beneficial interests in
a trust or other equity ownership
interests in a Person or (b) any
warrants, options or other rights to
acquire such shares or
interests.
"ERISA" means the Employee
Retirement Income Security Act of
1974, as amended from time to
time, and the regulations promulgated and
rulings issued thereunder.
6
<PAGE>
"ERISA Affiliate"
means any Person that for purposes of Title
IV of ERISA is a member of the
Borrower's controlled group, or under
common control with the
Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a)
(i) the occurrence of a reportable
event, within the meaning of
Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice
requirement with respect to such event
has been waived by the PBGC, or
(ii) the requirements of subsection (1)
of Section 4043(b) of ERISA
(without regard to subsection (2) of such
Section) are met with respect to
a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of
a Plan, and an event described in
paragraph (9), (10), (11), (12)
or (13) of Section 4043(c) of ERISA is
reasonably expected to occur
with respect to such Plan within the
following 30 days; (b) the
application for a minimum funding waiver
with respect to a Plan; (c) the
provision by the administrator of any
Plan of a notice of intent to
terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including
any such notice with respect to a plan
amendment referred to in Section
4041(e) of ERISA); (d) the cessation
of operations at a facility of
the Borrower or any ERISA Affiliate in
the circumstances described in
Section 4062(e) of ERISA; (e) the
withdrawal by the Borrower or
any ERISA Affiliate from a Multiple
Employer Plan during a plan year
for which it was a substantial
employer, as defined in Section
4001(a)(2) of ERISA; (f) the conditions
for the imposition of a lien
under Section 302(f) of ERISA shall have
been met with respect to any
Plan; (g) the adoption of an amendment to
a Plan requiring the provision
of security to such Plan pursuant to
Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings
to terminate a Plan pursuant to
Section 4042 of ERISA, or the
occurrence of any event or
condition described in Section 4042 of ERISA
that constitutes grounds for the
termination of, or the appointment of
a trustee to administer, a Plan.
"Eurodollar
Lending Office" means, with respect to any Lender,
the office of such Lender
specified as its "Eurodollar Lending Office"
opposite its name on Schedule I
hereto or in the Assignment and
Acceptance pursuant to which it became a
Lender (or, if no such office
is specified, its Domestic
Lending Office), or such other office of
such Lender as such Lender may
from time to time specify to the
Borrower and the Agent.
"Eurocurrency
Liabilities" has the meaning assigned to that
term in Regulation D of the
Board of Governors of the Federal Reserve
System, as in effect from time
to time.
"Eurodollar
Rate" means, for any Interest Period for each
Eurodollar Rate Advance
comprising part of the same Borrowing, an
interest rate per annum equal to
the rate per annum obtained by
dividing (a) the rate per annum
(rounded upward to the nearest whole
multiple of 1/100 of 1% per
annum) appearing on Reuters Screen LIBOR01
Page (or any successor page) as
the London interbank offered rate for
deposits in Dollars at
approximately 11:00 A.M. (London time) two
Business Days prior to the first
day of such Interest Period for a term
comparable to such Interest
Period or, if for any reason such rate is
not available, the average
(rounded upward to the nearest whole
multiple of 1/100 of 1% per
annum, if such average is not such a
multiple) of the rate per annum
at which deposits in Dollars is offered
by the principal office of each
of the Reference Banks in London,
England to prime banks in the
London interbank market at
7
<PAGE>
11:00 A.M. (London time) two
Business Days before the first day of such
Interest Period in an amount
substantially equal to such Reference
Bank's Eurodollar Rate Advance
comprising part of such Borrowing to be
outstanding during such Interest
Period and for a period equal to such
Interest Period by (b) a
percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such
Interest Period. If the Reuters Screen
LIBOR01 Page (or any successor
page) is unavailable, the Eurodollar
Rate for any Interest Period for
each Eurodollar Rate Advance
comprising part of the same
Borrowing shall be determined by the Agent
on the basis of applicable rates
furnished to and received by the Agent
from the Reference Banks two
Business Days before the first day of such
Interest Period, subject,
however, to the provisions of Section 2.07.
"Eurodollar Rate
Advance" means an Advance that bears interest
as provided in Section
2.06(a)(ii).
"Eurodollar Rate
Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances
comprising part of the same Borrowing
means the reserve percentage
applicable two Business Days before the
first day of such Interest
Period under regulations issued from time to
time by the Board of Governors
of the Federal Reserve System (or any
successor) for determining the
maximum reserve requirement (including,
without limitation, any
emergency, supplemental or other marginal
reserve requirement) for a
member bank of the Federal Reserve System in
New York City with respect to
liabilities or assets consisting of or
including Eurocurrency
Liabilities (or with respect to any other
category of liabilities that
includes deposits by reference to which
the interest rate on Eurodollar
Rate Advances is determined) having a
term equal to such Interest
Period.
"Events of
Default" has the meaning specified in Section 6.01.
"Excluded
Taxes" means, with respect to any Lender and the
Agent, or any other recipient of
a payment made by or on account of any
obligation of the Borrower
hereunder, (a) income or franchise taxes
imposed on (or measured by) its
net income or net profits (however
denominated), or taxes imposed
in lieu of such income or franchise
taxes, by the United States, or
by the jurisdiction under the laws of
which such Lender, such Lender's
Applicable Lending Office or the Agent
(as the case may be) is
organized or any political subdivision thereof,
(b) any branch profits taxes
imposed by the United States or any
similar tax or capital tax
imposed by any other jurisdiction described
in clause (a), and (c) in the
case of a Lender organized under the laws
of a jurisdiction outside the
United States, any withholding tax
imposed on any such payment by
the United States to the extent that it
is determined on the basis of
laws in effect and tax rates applicable
to such Lender at the time such Lender
becomes a party to this
Agreement (or designates a new
Applicable Lending Office) or is
attributable to such Lender's
failure to comply with Section 2.13(e),
except to the extent that such
Lender, or its assignor, if any, was
entitled, at the time of
designation of a new Applicable Lending Office
or assignment, as applicable, to
receive additional amounts from the
Borrower with respect to such
withholding tax pursuant to Section
2.13(a) (it being understood and
agreed, for the avoidance of doubt,
that any withholding tax imposed
on such a Lender as a result of
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<PAGE>
a change in law or regulation or
interpretation thereof occurring after
the time such Lender became a
party to this Agreement shall not be an
Excluded Tax).
"Federal Funds
Rate" means, for any period, a fluctuating
interest rate per annum equal
for each day during such period to the
weighted average of the rates on
overnight Federal funds transactions
with members of the Federal
Reserve System arranged by Federal funds
brokers, as published for such
day (or, if such day is not a Business
Day, for the next preceding
Business Day) by the Federal Reserve Bank
of New York, or, if such rate is
not so published for any day that is a
Business Day, the average of the
quotations for such day on such
transactions received by the
Agent from three Federal funds brokers of
recognized standing selected by
it.
"Finance SPE"
means (a) any Receivables SPE and (b) any
Subsidiary that (i) is a special
purpose financing vehicle, (ii) was
created solely for the purpose
of facilitating the incurrences of Debt
or issuances of Equity Interests
by the Borrower or any Subsidiary,
(iii) has no business other than
the facilitation of such incurrence or
issuance and activities
incidental thereto and (iv) is capitalized with
an amount not materially more
than the cash proceeds received by such
Finance SPE from such
transaction, provided that such transaction does
not constitute or create
indebtedness secured by a Lien that is
prohibited by Section 5.02(a).
"Financial
Officer" means the chief financial officer or
treasurer of the Borrower.
"Fiscal
Quarter" means a fiscal quarter of the Borrower.
"Fitch" means
Fitch, Inc.
"Foreign
Subsidiary" means a Subsidiary organized under the
laws of a jurisdiction outside
the United States.
"Fuji Xerox"
means Fuji Xerox Co., Limited.
"GAAP" has the meaning
specified in Section 1.03.
"Guarantor"
means any Domestic Subsidiary that has or is
required to execute and deliver
the guaranty described in Section
5.01(j) hereof.
"Hazardous
Materials" means (a) petroleum and petroleum
products, byproducts or
breakdown products, radioactive materials,
asbestos-containing materials,
polychlorinated biphenyls and radon gas
and (b) any other chemicals,
materials or substances designated,
classified or regulated as
hazardous or toxic or as a pollutant or
contaminant under any applicable
Environmental Law.
"Hedge
Agreements" means interest rate swap, cap or collar
agreements, interest rate future
or option contracts, currency swap
agreements, currency future or
option contracts and other similar
agreements.
"Indemnified
Taxes" shall mean Taxes other than Excluded
Taxes.
9
<PAGE>
"Interest
Period" means, for each Eurodollar Rate Advance
comprising part of the same
Borrowing, the period commencing on the
date of such Eurodollar Rate
Advance or the date of the Conversion of
any Base Rate Advance into such
Eurodollar Rate Advance and ending on
the last day of the period
selected by the Borrower requesting such
Borrowing pursuant to the
provisions below and, thereafter, each
subsequent period commencing on the last
day of the immediately
preceding Interest Period and
ending on the last day of the period
selected by the Borrower
pursuant to the provisions below. The duration
of each such Interest Period
shall be one, two, three or six months,
or, subject to clause (c) below,
nine months, as the Borrower may, upon
notice received by the Agent not
later than 11:00 A.M. (New York City
time) on the third Business Day
prior to the first day of such Interest
Period, select; provided,
however, that:
(a) the
Borrower may not select any Interest Period
that ends after the
Termination Date;
(b) Interest
Periods commencing on the same date for
Eurodollar Rate
Advances comprising part of the same Borrowing
shall be of the same
duration;
(c) the
Borrower shall not be entitled to select an
Interest Period having
a duration of nine months unless, by
2:00 P.M. (New York
City time) on the third Business Day prior
to the first day of
such Interest Period, each Lender notifies
the Agent that such Lender will be providing
funding for such
Borrowing with such
Interest Period (the failure of any Lender
to so respond by such
time being deemed for all purposes of
this Agreement as an
objection by such Lender to the requested
duration of such
Interest Period); provided that, if any or
all of the Lenders
object to the requested duration of such
Interest Period, the
duration of the Interest Period for such
Borrowing shall be one,
two, three or six months, as specified
by the Borrower in the
applicable Notice of Borrowing as the
desired alternative to
an Interest Period of nine months;
(d) whenever
the last day of any Interest Period
would otherwise occur
on a day other than a Business Day, the
last day of such
Interest Period shall be extended to occur on
the next succeeding Business Day,
provided, however, that, if
such extension would
cause the last day of such Interest
Period to occur in the
next following calendar month, the last
day of such Interest
Period shall occur on the next preceding
Business Day; and
(e) whenever
the first day of any Interest Period
occurs on a day of an
initial calendar month for which there
is no numerically corresponding day in the
calendar month that
succeeds such initial
calendar month by the number of months
equal to the number of
months in such Interest Period, such
Interest Period shall
end on the last Business Day of such
succeeding calendar
month.
"Internal Revenue
Code" means the Internal Revenue Code of
1986, as amended from time to
time, and the regulations promulgated and
rulings issued thereunder.
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<PAGE>
"Lenders"
means each Initial Lender and each Person that shall
become a party hereto pursuant
to Section 8.07.
"Lien" means
any lien, security interest or other charge or
encumbrance of any kind, or any
other type of preferential arrangement,
including, without limitation,
the lien or retained security title of a
conditional vendor and any
easement, right of way or other encumbrance
on title to real property, it
being understood that a license or
assignment of intellectual
property not securing Debt, a lease or
sublease of assets to another
Person or the filing of a precautionary
financing statement (or similar
filing) in connection with an operating
lease or consignment does not
constitute a "Lien".
"Material Adverse
Change" means any material adverse change in
the business, assets, operations
or condition (financial or otherwise)
of the Borrower and its
Subsidiaries taken as a whole.
"Material Adverse
Effect" means a material adverse effect on
(a) the business, assets,
operations or condition (financial or
otherwise) of the Borrower and
its Subsidiaries taken as a whole, (b)
the rights and remedies of the
Agent or any Lender under this Agreement
or any Note or (c) the ability
of the Borrower to perform its monetary
obligations under this Agreement or any Note.
"Material
Subsidiary" means any Wholly-Owned Subsidiary of the
Borrower that as of the end of
the most recently completed Fiscal
Quarter had Consolidated net
worth of $100,000,000 or more, provided,
however, that any change in a
Person's status as a Material Subsidiary
shall become effective as of the
date of delivery of the financial
statements for such Fiscal
Quarter (or, in the case of the last Fiscal
Quarter of a Fiscal Year, such
Fiscal Year) pursuant to Section
5.01(i).
"Moody's"
means Moody's Investors Service, Inc.
"Multiemployer
Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to
which the Borrower or any ERISA
Affiliate is making or accruing
an obligation to make contributions, or
has within any of the preceding
five plan years made or accrued an
obligation to make contributions.
"Multiple Employer
Plan" means a single employer plan, as
defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for
employees of the Borrower or any
ERISA Affiliate and at least one
Person other than the Borrower
and the ERISA Affiliates or (b) was so
maintained and in respect of
which the Borrower or any ERISA Affiliate
could have liability under
Section 4064 or 4069 of ERISA in the event
such plan has been or were to be
terminated.
"Note" means
a promissory note of the Borrower payable to the
order of any Lender, delivered
pursuant to a request made under Section
2.15 in substantially the form
of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from
the Advances made by such
Lender.
"Notice of
Borrowing" has the meaning specified in Section
2.02(a).
11
<PAGE>
"PARC" means
Palo Alto Research Center, Incorporated, a
Delaware corporation.
"Patriot Act"
means the Uniting and Strengthening America by
Providing Appropriate Tools
Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L.
107-56, signed into law October 26,
2001.
"PBGC" means
the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted
Liens" means: (a) Liens for taxes, assessments and
governmental charges or levies
to the extent not required to be paid
under Section 5.01(b) hereof;
(b) Liens imposed by law, such as
warehouseman's, landlord's,
materialmen's, mechanics', carriers',
workmen's and repairmen's Liens
and other similar Liens arising in the
ordinary course of business; (c)
pledges or deposits and other Liens
arising or otherwise to secure
obligations under workers' compensation,
unemployment insurance and other
social security laws or regulations or
similar legislation or to secure
public or statutory obligations or to
secure payments of workers'
compensation or unemployment insurance; (d)
easements, rights of way and
other encumbrances on title to real
property that do not materially
adversely affect the use of such
property for its present
purposes; (e) deposits or other Liens to
secure the performance of bids,
contracts (other than for Debt),
leases, statutory obligations,
performance bonds and other obligations
of a like nature incurred in the
ordinary course of business, or to
secure surety and appeal bonds
and other obligations of a like nature;
(f) liens arising from judgments
not otherwise constituting an Event of
Default; (g) security given in
the ordinary course of business
consistent with past practice to
any public utility or governmental
authority in connection with the
operation of the business, other than
security for borrowed money; and
(h) deposits securing letters of
credit or similar instruments
issued in support of any obligation
referred to in clauses (a)
through (g) above.
"Person" means an
individual, partnership, corporation
(including a business trust),
joint stock company, trust,
unincorporated association,
joint venture, limited liability company or
other entity, or a government or
any political subdivision or agency
thereof.
"Plan" means
a Single Employer Plan or a Multiple Employer
Plan.
"Post-Petition
Interest" has the meaning specified in Section
7.05.
"Preferred Stock" of any
Person shall mean capital stock or
other ownership interests of or
in such Person of any class or classes
(however designated) that ranks
prior, as to the payment of dividends
and/or as to the distribution of
assets upon any voluntary or
involuntary liquidation,
dissolution or winding up of such Person, to
shares of capital stock or other
ownership interests of or in any other
class of such person.
"Public Debt
Rating" means, as of any date, the rating that
has been most recently announced
by either S&P, Moody's or Fitch, as
the case may be, for any class
of non-credit enhanced long-term senior
unsecured debt issued by the
Borrower or, if any such rating agency
shall have issued more than one
such rating, the lowest such rating
issued by such rating agency.
For purposes of the foregoing, (a) if
only one of S&P, Moody's
12
<PAGE>
and Fitch shall have in effect a
Public Debt Rating, the Applicable
Margin and the Applicable
Percentage shall be determined by reference
to the available rating; (b) if
none of S&P, Moody's or Fitch shall
have in effect a Public Debt Rating, the
Applicable Margin and the
Applicable Percentage will be
set in accordance with Level 6 under the
definition of "Applicable
Margin" or "Applicable Percentage", as the
case may be; (c) if only two of
S&P, Moody's and Fitch shall have in
effect a Public Debt Rating, the
Applicable Margin and the Applicable
Percentage shall be determined
by reference to the higher rating unless
there is a split in such ratings
of more than one level, in which case
the level that is one level
higher than the of the lower such ratings
shall apply, (d) if all three
have established ratings and the ratings
established by S&P, Moody's
and Fitch shall fall within two different
levels, the Applicable Margin
and the Applicable Percentage shall be
based upon the rating assigned
by two of such agencies, or if the
ratings established by S&P,
Moody's and Fitch shall fall within three
different levels, the Applicable Margin and
the Applicable Percentage
shall be based upon the middle
rating; (e) if any rating established by
S&P, Moody's or Fitch shall
be changed (other than as a result of a
change in the basis of such
rating or the rating system of such
agency), such change shall be
effective as of the date on which such
change is first announced
publicly by the rating agency making such
change and ending on the date
immediately preceding the effective date
of the next such change; and (f)
if S&P, Moody's or Fitch shall change
the basis or system on which
ratings are established, each reference to
the Public Debt Rating announced
by S&P, Moody's or Fitch, as the case
may be, shall refer to the then
equivalent rating by S&P, Moody's or
Fitch, as the case may be or, if
there is no equivalent or such change
would otherwise result in a
change in the Applicable Margin or
Applicable Percentage, the
Borrower and the Lenders shall negotiate in
good faith to amend this
definition or the definitions of "Applicable
Margin" or "Applicable
Percentage" to reflect such changed rating
system or ratings basis and,
pending the effectiveness of any such
amendment, the Applicable Margin
and the Applicable Percentage shall be
determined by reference to the
ratings of the other rating agencies
(or, if the circumstances
referred to in this clause (f) shall affect
all such agencies, the ratings
most recently in effect prior to such
changes).
"Qualified Equity
Securities" means any Equity Interest that
is not Disqualified Equity
Securities.
"Qualified Receivables
Transaction" means any transaction or
arrangement or series of
transactions or arrangements entered into by
the Borrower or any of its
Subsidiaries in order to monetize or
otherwise finance, or as a
result of which it may receive earlier than
otherwise due amounts that will
become receivable or be earned in the
future in respect of, a discrete
pool (which may be fixed or revolving)
of Receivables, leases or other
financial assets including financing
contracts and any transaction or
arrangement that is not a sale or
transfer but pursuant to and by
virtue of which a Person succeeds to,
and becomes entitled to, the
rights under or in respect of such
Receivables, leases or other financial assets (in each case whether now
existing or arising in the
future), and which may include a Lien on (a)
Receivables, (b) deposit or
other accounts (and the funds or
investments from time to time
credited thereto) established in
connection with a Qualified
Receivables Transaction to secure
obligations of the Borrower or
any Subsidiary arising in connection
with or otherwise related to
such
13
<PAGE>
transaction, (c) any promissory
note issued by the Borrower or any
Subsidiary evidencing the
repayment of amounts directly or indirectly
distributed to the Borrower or
any Subsidiary from any such accounts
and (d) any assets of or Equity
Interests in each and any Receivables
SPE used to facilitate such
transaction, provided that such transaction
or arrangement does not
constitute or create indebtedness secured by a
Lien that is prohibited by Section 5.02(a).
"Ratable
Share" of any amount means, with respect to any
Lender at any time, the product
of such amount times a fraction the
numerator of which is the amount
of such Lender's Commitment at such
time (or, if the Commitments
shall have been terminated pursuant to
Section 2.04 or 6.01, such
Lender's Commitment as in effect immediately
prior to such termination) and
the denominator of which is the
aggregate amount of all Commitments at
such time (or, if the
Commitments shall have been
terminated pursuant to Section 2.04 or
6.01, the aggregate amount of
all Commitments as in effect immediately
prior to such termination).
"Receivables"
means "accounts" (as such term is defined in the
Uniform Commercial Code as in
effect from time to time in the State of
New York (or, if by reason of
mandatory provisions of law, the Uniform
Commercial Code as in effect in
a jurisdiction other than New York) or
the Personal Property Security
Act in effect in each of the provinces
or territories in Canada (other
than Quebec) to the extent applicable),
including the proceeds of
inventory to the extent it also constitutes
an account), "claims"
as such term is defined in the Civil Code of
Quebec to the extent applicable,
book debts and any other existing or
hereafter arising accounts
receivable, lease receivables, finance
receivables, service receivables
and supply receivables and any
property or assets (including
equipment, inventory, software, leases
and servicing contracts) related
thereto.
"Receivables
SPE" means a Subsidiary that is a special purpose
entity that (a) borrows against
Receivables or purchases, leases or
otherwise acquires Receivables
or sells, disposes, assigns, leases,
conveys or otherwise transfers
Receivables to one or more third party
purchasers or another
Receivables SPE in connection with a Qualified
Receivables Transaction or (b)
engages in other activities that are
necessary or desirable to
effectuate the activities described in the
definitions of Qualified
Receivables Transaction or Third-Party Vendor
Financing Program, or (c) is
established or then used solely for the
purpose of, and has no business
other than, owning a Receivables SPE,
servicing Receivables owned by a
Receivables SPE, owning or holding
title to the property or assets
giving rise to such Receivables or any
activities incidental thereto
(including those described in the
definitions of Qualified Receivables
Transaction or Third-Party Vendor
Financing Program).
"Reference
Banks" means Citibank and JPMorgan Chase Bank, N.A.
"Register"
has the meaning specified in Section 8.07(d).
"Required
Lenders" means at any time Lenders owed at least a
majority in interest of the then
aggregate unpaid principal amount of
the Advances owing to Lenders,
14
<PAGE>
or, if no such principal amount
is then outstanding, Lenders having at
least a majority in interest of
the Commitments.
"Responsible
Officers" means the chief executive officer, any
Financial Officer, the
controller and the general counsel of the
Borrower.
"S&P"
mea