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
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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
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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
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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
2
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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" means Standard & Poor's, a division of The
McGraw-Hill
Companies, Inc.
"SEC" means Securities and Exchange Commission.
"Single 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 no 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 4069 of ERISA in the event such plan has
been
or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, or other business entity
of
which (or in which) (a) more than 50% of the issued and
outstanding
capital stock, securities or other ownership interests having
ordinary
voting power or (b) in
the case of a partnership, more than 50% of the
partnership interests, are, in each case, at the time directly
or
indirectly owned or Controlled by such Person, by such Person and
one
or more of its other Subsidiaries or by one or more of such
Person's
other Subsidiaries.
"Taxes" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with
respect thereto.
"Termination Date" means the earlier of (a) April 28, 2008 and
(b) the date of termination in whole of the Commitments pursuant
to
Section 2.04 or 6.01.
"Third-Party Vendor Financing Program" means each and any
arrangement by the Borrower or any Subsidiary of third-party
vendor
financing directly or indirectly for customers of the Borrower and
its
Subsidiaries, including (a) the sale of a financing business,
(b)
sales, dispositions,
assignments, leases, licenses, conveyances or
other transfers of all or any portion of the business of, and
assets
relating to the business of, providing billing, collection and
other
services in respect of finance, lease and other Receivables,
(c)
Qualified Receivables Transactions and (d) other arrangements for
the
indirect financing of Receivables wherein a third-party financier
makes
loans to Subsidiaries that are Finance SPEs in respect of
Receivables
generated by the Borrower and its Subsidiaries, whether generated
prior
to or during such arrangements and whether the relevant transaction
is
treated as on or off the Borrower's consolidated balance sheet
(including the Program Agreement dated as of October 21, 2002
between
General Electric Capital Corporation, the Borrower, Xerox Lease
Funding, LLC and Xerox Lease Equipment LLC as thereafter
amended,
modified or supplemented from time to time and any other
Qualified
Receivables Transactions and similar arrangements for indirect
15
<PAGE>
financings of Receivables between the Borrower or any Subsidiary
and
General
Electric Capital Corporation or any of its Affiliates).
"Trust Preferred Securities" means the $650.0 million
aggregate liquidation amount of 8% Capital Securities of Xerox
Capital
Trust I and any other similar preferred securities issued by
the
Borrower and any of its Subsidiaries after the date hereof.
"Unused Commitment" means, with respect to each Lender at any
time, (a) such Lender's Commitment at such time minus (b) the
aggregate
principal amount of all Advances made by such Lender and
outstanding at
such time.
"Utilization Fee" means, as of any date on which the aggregate
principal amount of the Advances outstanding exceed 50% of the
aggregate Commitments, 0.10% per annum.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which
are
ordinarily, in the absence of contingencies, entitled to vote for
the
election of directors (or persons performing similar functions) of
such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary
of the Borrower in which more than 80% (90% in the case of PARC) of
the
Equity is at such time directly or indirectly owned by the
Borrower,
provided, however, that "Wholly-Owned Subsidiary" shall not include
any
Finance SPE.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a
later specified
date, the word "from" means "from and including" and the words "to"
and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally
accepted accounting principles as in effect in the United States
from time to
time ("GAAP"), provided that (a) if there is any change in GAAP
from such
principles applied in the preparation of the audited financial
statements
referred to in Section 4.01(e) ("Initial GAAP"), that is material
in respect of
the calculation of compliance with the covenants set forth in
Section 5.03, the
Borrower shall give prompt notice of such change to the Agent and
the Lenders,
(b) if the Borrower notifies the Agent that the Borrower requests
an amendment
of any provision hereof to eliminate the effect of any change in
GAAP (or the
application thereof) from Initial GAAP (or if the Agent or the
Required Lenders
request an amendment of any provision hereof for such purpose),
regardless of
whether such notice is given before or after such change in GAAP
(or the
application thereof), then such provision shall be applied on the
basis of
generally accepted accounting principles as in effect and applied
immediately
before such change shall have become effective until such notice
shall have been
withdrawn or such provision is amended in accordance herewith.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
16
<PAGE>
SECTION 2.01. The Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Advances to
the Borrower
from time to time on any Business Day during the period from the
Effective Date
until the Termination Date in an amount not to exceed such Lender's
Unused
Commitment. Each Borrowing shall be in an amount not less than the
Borrowing
Minimum or the Borrowing Multiple in excess thereof and shall
consist of
Advances of the same Type made on the same day by the Lenders
ratably according
to their respective Commitments. Within the limits of each Lender's
Commitment,
the Borrower may borrow under this Section 2.01, prepay pursuant to
Section 2.09
and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.03(c), each Borrowing shall be made on
notice, given not
later than (x) 11:00 A.M. (New York City time) on the third
Business Day prior
to the date of the proposed Borrowing in the case of a Borrowing
consisting of
Eurodollar Rate Advances or (y) 11:00 A.M. (New York City time) on
the date of
the proposed Borrowing in the case of a Borrowing consisting of
Base Rate
Advances, by the Borrower to the Agent, which shall give to each
Lender prompt
notice thereof by telecopier. Each such notice of a Borrowing (a
"Notice of
Borrowing") shall be by telephone, confirmed immediately in
writing, or
telecopier in substantially the form of Exhibit B hereto,
specifying therein the
requested (i) date of such Borrowing, (ii) Type of Advances
comprising such
Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in
the case of a
Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for
each such Advance. Each Lender shall, before 1:00 P.M. (New York
City time) on
the date of such Borrowing, make available for the account of its
Applicable
Lending Office to the Agent at the Agent's Account, in same day
funds, such
Lender's ratable portion of such Borrowing. After the Agent's
receipt of such
funds and upon fulfillment of the applicable conditions set forth
in Article
III, the Agent will make such funds available to the Borrower
requesting the
Borrowing at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate
Advances for
any Borrowing if the aggregate amount of such Borrowing is less
than the
Borrowing Minimum or if the obligation of the Lenders to make
Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.07 or 2.11
and (ii) the
Eurodollar Rate Advances may not be outstanding as part of more
than ten
separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower requesting the Borrowing. In the case of any
Borrowing that the
related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any loss
(excluding
loss of anticipated profits), cost or expense incurred by such
Lender as a
result of any failure to fulfill on or before the date specified in
such Notice
of Borrowing for such Borrowing the applicable conditions set forth
in Article
III, including, without limitation, any loss (excluding loss of
anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment
of deposits or other funds acquired by such Lender to fund the
Advance to be
made by such Lender as part of such Borrowing when such Advance, as
a result of
such failure, is not made on such date.
17
<PAGE>
(d) Unless the Agent shall have received notice from a Lender
prior to the time of any Borrowing that such Lender will not make
available to
the Agent such Lender's ratable portion of such Borrowing, the
Agent may assume
that such Lender has made such portion available to the Agent on
the date of
such Borrowing in accordance with subsection (a) of this Section
2.02, and the
Agent may, in reliance upon such assumption, make available to the
Borrower
requesting the Borrowing on such date a corresponding amount. If
and to the
extent that such Lender shall not have so made such ratable portion
available to
the Agent, such Lender and the Borrower severally agree to repay to
the Agent
forthwith on demand such corresponding amount together with
interest thereon,
for each day from the date such amount is made available to the
Borrower until
the date such amount is repaid to the Agent, at (i) in the case of
the Borrower,
the interest rate applicable at the time to the Advances and (ii)
in the case of
such Lender, the Federal Funds Rate. If such Lender shall repay to
the Agent
such corresponding amount, such amount so repaid shall constitute
such Lender's
Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender
of its
obligation, if any, hereunder to make its Advance on the date of
such Borrowing,
but no Lender shall be responsible for the failure of any other
Lender to make
the Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Agent for the account of each Lender a facility fee on
the aggregate
amount of such Lender's Commitment from the date hereof in the case
of each
Initial Lender and from the effective date specified in the
Assignment and
Acceptance pursuant to which it became a Lender in the case of each
other Lender
until the Termination Date at a rate per annum equal to the
Applicable
Percentage in effect from time to time, payable in arrears
quarterly on the last
day of each March, June, September and December, commencing with
the quarter
ended June 30, 2007, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its
own account such fees as may from time to time be agreed between
the Borrower
and the Agent.
SECTION 2.04. Termination or Reduction of the Commitments. (a)
Optional. The Borrower shall have the right, upon at least two
Business Days'
notice to the Agent, to terminate in whole or permanently reduce
ratably in part
the Unused Commitments of the Lenders, provided, however, that each
partial
reduction shall be in the aggregate amount of $10,000,000 or an
integral
multiple of $1,000,000 in excess thereof.
(b) Mandatory. The Commitments of the Lenders shall be
automatically and permanently reduced on the date and in the amount
of the net
cash proceeds of any public or 144A issuance in the capital markets
by the
Borrower or any of its Subsidiaries after the date hereof of
indebtedness (other
than indebtedness having a maturity of 270 days or less) or of
equity,
equity-linked, equity like or hybrid securities
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SECTION 2.05. Repayment of Advances. The Borrower shall repay
to the Agent for the ratable account of each Lender on the
Termination Date the
aggregate principal amount of the Advances made to it by such
Lender and then
outstanding.
SECTION 2.06. Interest on Advances. (a) Scheduled Interest.
The Borrower shall pay interest on the unpaid principal amount of
each Advance
made to it and owing to each Lender from the date of such Advance
until such
principal amount shall be paid in full, at the following rates per
annum:
(i) Base Rate
Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum
of
(x) Base Rate in effect from time to time plus (y) the Utilization
Fee,
if applicable, payable in arrears quarterly on the last day of
each
March, June, September and December during such periods and on the
date
such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at
all
times during each Interest Period for such Advance to the sum of
(x)
the Eurodollar Rate for such Interest Period for such Advance plus
(y)
the
Applicable Margin in effect from time to time plus (z) the
Utilization Fee, if applicable, payable in arrears on the last day
of
such Interest Period and, if such Interest Period has a duration
of
more than three months, on each day that occurs during such
Interest
Period every three months from the first day of such Interest
Period
and on the date such Eurodollar Rate Advance shall be Converted or
paid
in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the
Agent
may, and upon the request of the Required Lenders shall, require
the
Borrower to pay interest ("Default Interest") on (i) the
overdue
principal amount of each Advance owing to each Lender, payable
in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above,
at
a rate per annum equal at all times to 2% per annum above the rate
per
annum
required to be paid on such Advance pursuant to clause (a)(i)
or
(a)(ii) above and (ii) to the fullest extent permitted by law,
the
amount of any interest, fee or other amount payable hereunder that
is
not paid when due, from the date such amount shall be due until
such
amount shall be paid in full, payable in arrears on the date
such
amount shall be paid in full and on demand, at a rate per annum
equal
at all times to 2% per annum above the rate per annum required to
be
paid on Base Rate Advances pursuant to clause (a)(i) above;
provided,
however, that following acceleration of the Advances pursuant
to
Section 6.01, Default Interest shall accrue and be payable
hereunder
whether or not previously required by the Agent.
SECTION 2.07. Interest Rate Determination. (a) Each Reference
Bank agrees, if requested by the Agent, to furnish to the Agent
timely
information for the purpose of determining each Eurodollar Rate. If
any one or
more of the Reference Banks shall not furnish such timely
information to the
Agent for the purpose of determining any such interest rate, the
Agent shall
determine such interest rate on the basis of timely information
furnished by the
remaining Reference Banks. The Agent shall give prompt notice to
the Borrower
and the Lenders of the applicable interest rate determined by the
Agent for
purposes of Section 2.06(a)(i) or (ii), and the rate, if any,
furnished by each
Reference Bank for the purpose of determining the interest rate
under Section
2.06(a)(ii).
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<PAGE>
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that (i) they are unable to
obtain
matching deposits in the London inter-bank market at or about
11:00
A.M. (London time) on the second Business Day before the making of
a
Borrowing in sufficient amounts to fund their respective Advances
as a
part of such Borrowing during its Interest Period or (ii) the
Eurodollar Rate for any Interest Period for such Advances will
not
adequately reflect the cost to such Required Lenders of making,
funding
or maintaining their respective Eurodollar Rate Advances for
such
Interest Period, the Agent shall forthwith so notify the Borrower
and
the Lenders, whereupon (A) the Borrower of such Eurodollar Rate
Advances will, on the last day of the then existing Interest
Period
therefor, either (x) prepay such Advances or (y) Convert such
Advances
into Base Rate Advances and (B) the obligation of the Lenders to
make,
or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the
Lenders
that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with
the
provisions contained in the definition of "Interest Period" in
Section
1.01, the Agent will forthwith so notify the Borrower and the
Lenders
and such Advances will automatically, on the last day of the
then
existing Interest Period therefor, Convert into Base Rate
Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be
reduced,
by payment or prepayment or otherwise, to less than the
Borrowing
Minimum, such Advances shall automatically Convert into Base
Rate
Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurodollar
Rate
Advance will automatically, on the last day of the then
existing
Interest Period therefor, be Converted into Base Rate Advances and
(ii)
the obligation of the Lenders to make, or to Convert Advances
into,
Eurodollar Rate Advances shall be suspended.
(f) If Reuters Screen LIBOR01 Page is unavailable and fewer
than two Reference Banks furnish timely information to the Agent
for
determining the Eurodollar Rate for any Eurodollar Rate Advances
after
the Agent has requested such information,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such
Eurodollar
Rate Advances,
(ii) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base
Rate
Advance (or if such Advance is then a Base Rate Advance, will
continue
as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or to Convert Advances into Eurodollar Rate Advances shall
be
suspended until the Agent shall notify the Borrower and the
Lenders
that the circumstances causing such suspension no longer exist.
20
<PAGE>
SECTION 2.08. Optional Conversion of Advances. The Borrower of
any Advance may on any Business Day, upon notice given to the Agent
not later
than 11:00 A.M. (New York City time) on the third Business Day
prior to the date
of the proposed Conversion in the case of a Conversion to
Eurodollar Rate
Advances and not later than 11:00 A.M. (New York City time) on the
date of the
proposed Conversion in the case of a Conversion to Base Rate
Advances and
subject to the provisions of Sections 2.07, 2.11 and 8.04(c),
Convert all
Advances of one Type comprising the same Borrowing into Advances of
the other
Type; provided, however, that any Conversion of Base Rate Advances
into
Eurodollar Rate Advances shall be in an amount not less than the
minimum amount
specified in Section 2.02(b) and no Conversion of any Advances
shall result in
more separate Borrowings than permitted under Section 2.02(b). Each
such notice
of a Conversion shall, within the restrictions specified above,
specify (i) the
date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the
initial
Interest Period for each such Advance. Each notice of Conversion
shall be
irrevocable and binding on the Borrower giving such notice.
SECTION 2.09. Prepayments of Advances. (a) Optional. The
Borrower may, upon notice at least two Business Days' prior to the
date of such
prepayment, in the case of Eurodollar Rate Advances, and not later
than 11:00
A.M. (New York City time) on the date of such prepayment, in the
case of Base
Rate Advances, to the Agent stating the proposed date and aggregate
principal
amount of the prepayment, and if such notice is given the Borrower
shall, prepay
the outstanding principal amount of the Advances comprising part of
the same
Borrowing in whole or ratably in part, together with accrued
interest to the
date of such prepayment on the principal amount prepaid; provided,
however, that
(x) each partial prepayment of Advances shall be in an aggregate
principal
amount of not less than the Borrowing Minimum or a Borrowing
Multiple in excess
thereof, and (y) in the event of any such prepayment of a
Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders
in respect
thereof pursuant to Section 8.04(c).
(b)
Mandatory. (i) On each date on which the aggregate
outstanding principal amount of the Advances exceeds the
Commitments (as may be
reduced from time to time in accordance with Section 2.04), the
Borrower shall,
as soon as practicable and in any event within two Business Days
after any
reduction of the Commitments, prepay the outstanding principal
amount of any
Advances comprising part of the same Borrowing in an aggregate
amount sufficient
to reduce such aggregate outstanding principal amount to an amount
not to exceed
100% of the aggregate Commitments of the Lenders on such date.
(ii) Each prepayment made pursuant to this Section 2.09(b)
shall be made together with any interest accrued to the date of
such prepayment
on the principal amounts prepaid and, in the case of any prepayment
of a
Eurodollar Rate Advance on a date other than the last day of an
Interest Period
or at its maturity, any additional amounts which the Borrower shall
be obligated
to reimburse to the Lenders in respect thereof pursuant to Section
8.04(c). The
Agent shall give prompt notice of any prepayment required under
this Section
2.09(b) to the Borrower and the Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change after the date hereof in or in the
interpretation
of any law or regulation or (ii) the compliance with any guideline
or request
from any central bank or other governmental authority
21
<PAGE>
including, without limitation, any agency of the European Union or
similar
monetary or multinational authority (whether or not having the
force of law),
there shall be any increase in the cost to any Lender of agreeing
to make or
making, funding or maintaining Eurodollar Rate Advances (excluding
for purposes
of this Section 2.10 any such increased costs resulting from (i)
Taxes or Other
Taxes and (ii) changes in the basis of taxation (including rates)
of overall net
income or overall gross income by the United States or by the
foreign
jurisdiction or state under the laws of which such Lender is
organized or has
its Applicable Lending Office or any political subdivision thereof,
as to both
of which Section 2.13 shall govern), then the Borrower shall from
time to time,
upon demand by such Lender (with a copy of such demand to the
Agent), pay to the
Agent for the account of such Lender additional amounts sufficient
to compensate
such Lender for such increased cost; provided, however, that before
making any
such demand, each Lender agrees to use reasonable efforts
(consistent with its
internal policy and legal and regulatory restrictions) to designate
a different
Applicable Lending Office if the making of such a designation would
avoid the
need for, or reduce the amount of, such increased cost and would
not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender.
A certificate as to the amount of such increased cost, submitted to
the Borrower
and the Agent by such Lender, shall be conclusive and binding for
all purposes,
absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or
other
governmental authority (whether or not having the force of law)
that becomes
effective after the date hereof, or any change in any such existing
law,
regulation, guideline or request, affects or would affect the
amount of capital
required or expected to be maintained by such Lender or any
corporation
controlling such Lender and that the amount of such capital is
increased by or
based upon the existence of such Lender's commitment to lend
hereunder (or
similar contingent obligations), then, upon demand by such Lender
(with a copy
of such demand to the Agent), the Borrower shall pay to the Agent
for the
account of such Lender, from time to time as specified by such
Lender,
additional amounts sufficient to compensate such Lender or such
corporation in
the light of such circumstances, to the extent that such Lender
reasonably
determines such increase in capital to be allocable to the
existence of such
Lender's commitment to lend hereunder. A certificate as to such
amounts
submitted to the Borrower and the Agent by such Lender shall be
conclusive and
binding for all purposes, absent manifest error.
(c) Notwithstanding anything to the contrary in this Section
2.10, the Borrower shall not be required to compensate a Lender
pursuant to this
Section 2.10 for any amounts incurred more than 270 days prior to
the date that
such Lender notifies the Borrower of such Lender's intention to
claim
compensation therefor; provided that, if the circumstances giving
rise to such
claim have a retroactive effect, then such 270-day period shall be
extended to
include the period of such retroactive effect.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the
introduction of
or any change in or in the interpretation of any law or regulation
makes it
unlawful, or any central bank or other governmental authority
asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to
perform its
obligations hereunder to make Eurodollar Rate Advances or to fund
or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate
Advance will
automatically, upon such demand be Converted into a Base Rate
Advance and (b)
the obligation
22
<PAGE>
of the Lenders to make Eurodollar Rate Advances or to Convert
Advances into
Eurodollar Rate Advances shall be suspended until the Agent shall
notify the
Borrower and the Lenders that the circumstances causing such
suspension no
longer exist; provided, however, that before making any such
demand, each Lender
agrees to use reasonable efforts (consistent with its internal
policy and legal
and regulatory restrictions) to designate a different Eurodollar
Lending Office
if the making of such a designation would allow such Lender or its
Eurodollar
Lending Office to continue to perform its obligations to make
Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate
Advances and would
not, in the judgment of such Lender, be otherwise disadvantageous
to such
Lender.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment required to be made hereunder, irrespective
of any right
of counterclaim or set-off, not later than 11:00 A.M. (New York
City time) on
the day when due in Dollars to the Agent at the Agent's Account in
same day
funds. The Agent will promptly thereafter cause to be distributed
like funds
relating to the payment of principal or interest or fees ratably
(other than
amounts payable pursuant to Section 2.03(b), 2.10, 2.13 or 8.04(c))
to the
Lenders for the account of their respective Applicable Lending
Offices, and like
funds relating to the payment of any other amount payable to any
Lender to such
Lender for the account of its Applicable Lending Office, in each
case to be
applied in accordance with the terms of this Agreement. Upon its
acceptance of
an Assignment and Acceptance and recording of the information
contained therein
in the Register pursuant to Section 8.07(c), from and after the
effective date
specified in such Assignment and Acceptance, the Agent shall make
all payments
hereunder and under the Notes in respect of the interest assigned
thereby to the
Lender assignee thereunder, and the parties to such Assignment and
Acceptance
shall make all appropriate adjustments in such payments for periods
prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender by the Borrower is not made when
due
hereunder or under the Note held by such Lender, to charge from
time to time
against any or all of the Borrower's accounts with such Lender any
amount so
due.
(c) All computations of interest based on the Base Rate (other
than when the Base Rate is determined by reference to the Federal
Funds Rate)
shall be made by the Agent on the basis of a year of 365 or 366
days, as the
case may be, and all computations of interest based on the
Eurodollar Rate or
the Federal Funds Rate and of fees shall be made by the Agent on
the basis of a
year of 360 days, in each case for the actual number of days
(including the
first day but excluding the last day) occurring in the period for
which such
interest or fees are payable. Each determination by the Agent of an
interest
rate hereunder shall be conclusive and binding for all purposes,
absent manifest
error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment
shall be made
on the next succeeding Business Day, and such extension of time
shall in such
case be included in the computation of payment of interest or fee,
as the case
may be; provided, however, that, if such extension would cause
payment of
interest on or principal of Eurodollar Rate Advances to be made in
the next
following calendar month, such payment shall be made on the next
preceding
Business Day.
23
<PAGE>
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Lenders hereunder
that the Borrower will not make such payment in full, the Agent may
assume that
the Borrower has made such payment in full to the Agent on such
date and the
Agent may, in reliance upon such assumption, cause to be
distributed to each
Lender on such due date an amount equal to the amount then due such
Lender. If
and to the extent the Borrower shall not have so made such payment
in full to
the Agent, each Lender shall repay to the Agent forthwith on demand
such amount
distributed to such Lender together with interest thereon, for each
day from the
date such amount is distributed to such Lender until the date such
Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by the Borrower
to or for the account of any Lender or the Agent hereunder or under
the Notes or
any other documents to be delivered hereunder shall be made, in
accordance with
Section 2.12 or the applicable provisions of such other documents,
free and
clear of and without deduction for any and all Indemnified Taxes.
If the
Borrower shall be required by law to deduct any Indemnified Taxes
from or in
respect of any sum payable hereunder or under any Note or any other
documents to
be delivered hereunder to any Lender or the Agent, (i) the sum
payable shall be
increased as may be necessary so that after making all required
deductions
(including deductions applicable to additional sums payable under
this Section
2.13) such Lender or the Agent (as the case may be) receives an
amount equal to
the sum it would have received had no such deductions been made,
(ii) the
Borrower shall make such deductions and (iii) the Borrower shall
pay the full
amount deducted to the relevant taxation authority or other
authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp or documentary taxes or any other excise or property taxes,
charges or
similar levies that arise from any payment made hereunder or under
the Notes or
any other documents to be delivered hereunder or from the
execution, delivery or
registration of, performing under, or otherwise with respect to,
this Agreement
or the Notes or any other documents to be delivered hereunder,
excluding,
however, such taxes imposed as a result of an assignment (other
than an
assignment that occurs as a result of the Borrower's demand) or
participation
(hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for
and hold it harmless against the full amount of Indemnified Taxes
or Other Taxes
imposed on or paid by such Lender or the Agent (as the case may be)
and any
liability (including penalties, interest and expenses) arising
therefrom or with
respect thereto. This indemnification shall be made within 30 days
from the date
such Lender or the Agent (as the case may be) makes written demand
therefor. The
written demand shall include the original or a copy of a receipt or
a demand
issued by the relevant governmental authority evidencing such
payment or
demanding such payment, together with a certificate setting forth
the amount of
such Indemnified Taxes or Other Taxes and, in reasonable detail,
the calculation
and basis for such Indemnified Taxes or Other Taxes.
(d) Within 30 days after the date of any payment of
Indemnified Taxes by the Borrower to a governmental authority, the
Borrower
shall furnish to the Agent, at its address referred to in Section
8.02, the
original or a certified copy of a receipt evidencing such payment
to the extent
such a receipt is issued therefor, or other written proof of
payment thereof
that is reasonably satisfactory to the Agent.
24
<PAGE>
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution
and delivery
of this Agreement in the case of each Initial Lender and on the
date of the
Assignment and Acceptance pursuant to which it becomes a Lender in
the case of
each other Lender, and from time to time thereafter as reasonably
requested in
writing by the Borrower, shall provide each of the Agent and the
Borrower with
two duly completed original Internal Revenue Service Forms W-8BEN,
W-8ECI or
W-8IMY, as appropriate, or any successor or other form prescribed
by the
Internal Revenue Service, certifying that such Lender is exempt
from or entitled
to a reduced rate of United States withholding tax on payments
pursuant to this
Agreement or the Notes. For purposes of this subsection (e), the
terms "United
States" and "United States person" shall have the meanings
specified in Section
7701 of the Internal Revenue Code.
(f) Should
a Lender become subject to Excluded Taxes because
of its failure to deliver a form, certificate or other document
described in
Section 2.13(e), the Borrower shall take such steps as the Lender
shall
reasonably request to assist the Lender to recover such Excluded
Taxes.
(g) Any Lender that is entitled to an exemption from or
reduction of withholding tax imposed by any jurisdiction other the
United States
(a "Foreign Jurisdiction") with respect to payments under this
Agreement shall
deliver to the relevant Borrower (with a copy to the Agent) within
15 Business
Days following receipt of the written notice referred to below,
such pr
