TABLE OF CONTENTS

 

				Page
SECTION 1		DEFINITIONS		1
1.1.		Defined Terms		1
1.2.		Other Definitional Provisions		15
SECTION 2		THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS		15
2.1.		The Committed Rate Loans		15
2.2.		The Bid Loans; the Negotiated Rate Loans		16
2.3.		Loan Accounts		20
2.4.		Fees		20
2.5.		Termination or Reduction of Commitments; Cancellation of Capital Corporation as Borrower		20
2.6.		Optional Prepayments		21
2.7.		Minimum Amount of Certain Loans		22
2.8.		Committed Rate Loan Interest Rate and Payment Dates		22
2.9.		Conversion and Continuation Options		22
2.10.		Computation of Interest and Fees		23
2.11.		Inability to Determine Interest Rate		23
2.12.		Pro Rata Treatment and Payments		24
2.13.		Requirements of Law		26
2.14.		Indemnity		29
2.15.		Non-Receipt of Funds by the Administrative Agent		30
2.16.		Extension of Termination Date		30
2.17.		Foreign Taxes		31
2.18.		Confirmations		33
2.19.		Replacement of Cancelled Banks		33
2.20.		Commitment Increases		33
2.21.		Pricing Determinations		35
2.22.		Markit Data		36
2.23.		Defaulting Banks		38
SECTION 3		REPRESENTATIONS AND WARRANTIES		39
3.1.		Financial Condition		39
3.2.		Corporate Existence		39
3.3.		Corporate Power; Authorization; Enforceable Obligations		39
3.4.		No Legal Bar		40
3.5.		No Material Litigation		40
3.6.		Taxes		40
3.7.		Margin Regulations		40
3.8.		Use of Proceeds		40
SECTION 4		CONDITIONS PRECEDENT		41

 

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TABLE OF CONTENTS
(continued)

 

				Page
4.1.		Conditions to Initial Loan		41
4.2.		Conditions to All Loans		42
SECTION 5		AFFIRMATIVE COVENANTS		42
5.1.		Financial Statements		42
5.2.		Certificates; Other Information		43
5.3.		Company Indenture Documents		43
5.4.		Capital Corporation Indenture Documents		43
5.5.		Notice of Default		44
5.6.		Ownership of Capital Corporation Stock		44
5.7.		Employee Benefit Plans		44
SECTION 6		NEGATIVE COVENANTS OF THE COMPANY		44
6.1.		Company May Consolidate, etc., Only on Certain Terms		44
6.2.		Limitation on Liens		45
6.3.		Limitations on Sale and Lease-back Transactions		48
6.4.		Equipment Operations Debt		48
SECTION 7		NEGATIVE COVENANTS OF THE CAPITAL CORPORATION		49
7.1.		Fixed Charges Ratio		49
7.2.		Consolidated Senior Debt to Consolidated Capital Base		49
7.3.		Limitation on Liens		49
7.4.		Consolidation; Merger		50
SECTION 8		EVENTS OF DEFAULT		51
SECTION 9		THE AGENTS		53
9.1.		Appointment		53
9.2.		Delegation of Duties		53
9.3.		Exculpatory Provisions		53
9.4.		Reliance by Agents		54
9.5.		Notice of Default		54
9.6.		Non-Reliance on Agents and Other Banks		54
9.7.		Indemnification		55
9.8.		Agents in their Individual Capacities		55
9.9.		Successor Agents		55
SECTION 10		MISCELLANEOUS		55
10.1.		Amendments and Waivers		55
10.2.		Notices		56
10.3.		No Waiver; Cumulative Remedies		58
10.4.		Payment of Expenses		58
10.5.		Successors and Assigns; Participations; Purchasing Banks		59
10.6.		Adjustments		64
10.7.		Confidentiality		64
10.8.		Counterparts		65

 

iii

 

TABLE OF CONTENTS
(continued)

 

				Page
10.9.		GOVERNING LAW		65
10.10.		Consent to Jurisdiction and Service of Process		65
10.11.		USA PATRIOT Act.		65

 

SCHEDULES:
Schedule I	Terms of Subordination
Schedule II	Commitments
Schedule III	Addresses for Notices
EXHIBITS:
Exhibit A	Form of Borrowing Notice
Exhibit B	Form of Bid Loan Request
Exhibit C	Form of Bid Loan Offer
Exhibit D	Form of Bid Loan Confirmation
Exhibit E	Form of Loan Assignment
Exhibit F	Form of Commitment Transfer Supplement
Exhibit G	Form of Opinion of General Counsel to the Company
Exhibit H	Form of Opinion of Special New York Counsel to the Borrowers
Exhibit I	Form of Extension Request
Exhibit J	Form of Form W-8BEN Tax Letter
Exhibit K	Form of Form W-8ECI Tax Letter
Exhibit L	Form of Agreement
Exhibit M	Form of Promissory Note
Exhibit N	Form of New Bank Supplement
Exhibit O	Form of Commitment Increase Supplement

 

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CREDIT AGREEMENT, dated as of March 3, 2009, among (a) DEERE & COMPANY, a Delaware corporation (the “ Company ”), (b) JOHN DEERE CAPITAL CORPORATION, a Delaware corporation (the “ Capital Corporation ”), (c) the several financial institutions parties hereto (collectively, the “ Banks ”, and individually, a “ Bank ”), (d) JPMORGAN CHASE BANK, N.A., as administrative agent hereunder (in such capacity, together with its successors and permitted assigns, the “ Administrative Agent ”), (e) CITIBANK, N.A., CREDIT SUISSE, CAYMAN ISLANDS BRANCH, and DEUTSCHE BANK AG NEW YORK BRANCH, as documentation agents hereunder (in such capacity, the “ Documentation Agents ”), and (f) BANK OF AMERICA, N.A., as syndication agent hereunder (in such capacity, the “ Syndication Agent ”).

 

The parties hereto hereby agree as follows:

 

SECTION 1            DEFINITIONS

 

1.1.          Defined Terms .   As used in this Agreement, the following terms have the following meanings:

 

“ ABR ”:  at any particular date, the highest of (a) the rate of interest per annum publicly announced by JPMorgan Chase Bank, N.A. for such date as its prime rate in effect at its principal office in New York City; (b) 0.5% per annum above the rate set forth for such date or, if such date is not a Business Day, the next preceding Business Day, opposite the caption “Federal Funds (Effective)” in the weekly statistical release designated as “H.15(519)” (or any successor publication) published by the Board or, if such rate is not so published for such date, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds dealers of recognized standing selected by it; and (c) the Eurodollar Rate for a Eurodollar Loan with one-month Interest Period commencing on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1% (provided that, for the avoidance of doubt, such Eurodollar Rate for any date shall be based on the rate appearing on the Reuters Screen LIBOR01 Page (or, if such rate does not appear on the Reuters Screen LIBOR01 Page or otherwise on such system, on any comparable publicly available service for displaying eurodollar rates) at approximately 11:00 A.M. London time on such date).

 

“ ABR Loans ”:  Committed Rate Loans at such time as they are made and/or being maintained at a rate of interest based upon the ABR.

 

“ ABR Margin ”:  as defined in subsection 2.21.

 

“ Absolute Rate Bid Loan ”:  any Bid Loan made pursuant to an Absolute Rate Bid Loan Request.

 

“ Absolute Rate Bid Loan Request ”:  any Bid Loan Request requesting the Banks to offer to make Bid Loans at an absolute rate (as opposed to a rate composed of the Applicable Index Rate plus (or minus ) a margin).

 

“ Act ”: as defined in subsection 10.11.

 

 

“ Administrative Agent ”:  as defined in the preamble hereto.

 

“ Administrative Questionnaire ”:  an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

“ Agent ”:  the Administrative Agent, the Syndication Agent or a Documentation Agent, as the context shall require; together, the “ Agents ”.

 

“ Agreement ”:  this Credit Agreement, as amended, supplemented or modified from time to time.

 

“ Applicable Index Rate ”:  in respect of any Bid Loan requested pursuant to an Index Rate Bid Loan Request, the Eurodollar Rate applicable to the Interest Period for such Bid Loan.

 

“ Applicable Margin ”:  for ABR Loans and for Eurodollar Loans, the applicable ABR Margin or Eurodollar Margin, in each case as determined in accordance with subsection 2.21; provided that, the Applicable Margin for any ABR Loans and Eurodollar Loans shall be increased by 1% per annum at each level for the period of time that any Committed Rate Loans remain outstanding after the Termination Date.

 

“ Attributable Debt ”:  as defined in subsection 6.2(b)(ii).

 

“ Bank ” and “ Banks ”:  as defined in the preamble hereto.

 

“ benefitted Bank ”:  as defined in subsection 10.6.

 

“ Bid Loan ”:  each loan (other than Negotiated Rate Loans) made pursuant to subsection 2.2; the aggregate amount advanced by a Bid Loan Bank pursuant to subsection 2.2 on each Borrowing Date shall constitute one Bid Loan, or more than one Bid Loan if so specified by the relevant Loan Assignee in its request for promissory notes pursuant to subsection 10.5(c).

 

“ Bid Loan Banks ”:  the collective reference to each Bank designated from time to time as a Bid Loan Bank by a Borrower (for purposes of Bid Loans to such Borrower) by written notice to the Administrative Agent and which has not been removed as a Bid Loan Bank by such Borrower by written notice to the Administrative Agent (each of which notices the Administrative Agent shall transmit to each such affected Bank).

 

“ Bid Loan Confirmation ”:  each confirmation by the Company or the Capital Corporation of its acceptance of Bid Loan Offers, which Bid Loan Confirmation shall be substantially in the form of Exhibit D and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.

 

“ Bid Loan Offer ”:  each offer by a Bid Loan Bank to make Bid Loans pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the information specified in

 

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Exhibit C and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.

 

“ Bid Loan Request ”:  each request by a Borrower for Bid Loan Banks to submit bids to make Bid Loans, which shall contain the information in respect of such requested Bid Loans specified in Exhibit B and shall be delivered to the Administrative Agent by facsimile transmission or by telephone, immediately confirmed by facsimile transmission.

 

“ Board ”:  the Board of Governors of the Federal Reserve System of the United States (or any successor).

 

“ Borrower ”:  the Company or the Capital Corporation; collectively, the “ Borrowers ”.

 

“ Borrowing Date ”:  in respect of any Loan, the date such Loan is made.

 

“ Business Day ”:  a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close; provided , that with respect to notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, such day is also a day for trading by and between banks in Dollar deposits in the interbank eurodollar market in London.

 

“ Calendar Quarter ”:  a three-month period consisting of (i) each January, February and March, (ii) each April, May and June, (iii) each July, August and September or (iv) each October, November and December.

 

“ Cancelled Bank ”:  (i) any Bank that has the whole or any part of its Commitment cancelled under subsection 2.13(a), (b) or (c), subsection 2.16(c) or subsection 2.17(b) or the Commitment of which has expired under subsection 2.16(a) and (ii) any Defaulting Bank that the Company designates in writing to such Bank and the Administrative Agent as a Cancelled Bank.

 

“ Capital Corporation ”:  as defined in the preamble hereto.

 

“ Certificate of Non-Bank Status ”:  a certificate in form and substance acceptable to the Administrative Agent and signed by an officer or director of the party that such party is not (1) taking deposits from customers in the ordinary course of its business, is not directly or indirectly regulated as a “bank” under any law, and is not otherwise a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of Borrowers within the meaning of Section 881(c)(3)(B) of the Code or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code.

 

“ Closing Date ”:  the date on which each of the conditions precedent specified in subsection 4.1 shall have been satisfied (or compliance therewith shall have been waived by the Majority Banks hereunder).

 

“ Code ”:  the Internal Revenue Code of 1986, as amended from time to time.

 

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“ Commitment ”:  as to any Bank, the amount set opposite such Bank’s name on Schedule II or in any assignment pursuant to which such Bank becomes a party hereto with respect to any interest purchased therein, as such amount may be modified as provided herein; collectively, as to all Banks, the “ Commitments ”.

 

“ Commitment Expiration Date ”:  as defined in subsection 2.16(a).

 

“ Commitment Increase Notice ”:  as defined in subsection 2.20(a).

 

“ Commitment Increase Supplement ”:  as defined in subsection 2.20(c).

 

“ Commitment Percentage ”:  as to any Bank at any time, the percentage which such Bank’s Commitment at such time constitutes of all the Commitments at such time or, at any time after the Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Bank’s Loans then outstanding constitutes of the aggregate principal amount of all Loans then outstanding; collectively, as to all the Banks, the “ Commitment Percentages ”; provided that when a Defaulting Bank shall exist, “Commitment Percentage” shall mean, when appropriate as determined by the Administrative Agent in order to provide ratable treatment at any time a Defaulting Bank exists (and without increasing the Commitment of any Bank), the percentage of the total Commitments (disregarding any Defaulting Bank’s Commitment) represented by such Bank’s Commitment.

 

“ Commitment Period ”:  as to any Bank at any time, the period from and including the Closing Date to but not including the Termination Date of such Bank or such earlier date on which the Commitments shall terminate as provided herein.

 

“ Commitment Transfer Supplement ”:  a Commitment Transfer Supplement, substantially in the form of Exhibit F.

 

“ Committed Rate Loans ”:  each loan made pursuant to subsection 2.1.

 

“ Commonly Controlled Entity ”:  in relation to a Borrower, an entity, whether or not incorporated, which is under common control with such Borrower within the meaning of Section 414(b) or (c) of the Code.

 

“ Company ”:  as defined in the preamble hereto.

 

“ Consolidated Capital Base ”:  at a particular time for the Capital Corporation and its consolidated Subsidiaries, the sum of (a) the amount shown opposite the item “Total Stockholders’ Equity” on the consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries plus (b) all indebtedness of the Capital Corporation and its consolidated Subsidiaries for borrowed money subordinated (on terms no less favorable to the Administrative Agent and the Banks than the terms of subordination set forth on Schedule I) to the indebtedness which may be incurred hereunder by the Capital Corporation, provided that the sum of clauses (a) and (b) hereof as at the end of a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall

 

4

 

be determined by reference to the publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of such fiscal quarter and after such adjustments, if any, as may be required so that the sum of the amounts referred to in clauses (a) and (b) is determined in accordance with GAAP.  Notwithstanding the foregoing, for purposes of determining compliance with subsection 7.2, adjustments resulting from any accumulated other comprehensive income as reflected on the most recent publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of any fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of any fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be deemed not to be included in Consolidated Capital Base.

 

“ Consolidated Net Worth ”:  as defined in subsection 6.2(b)(ii).

 

“ Consolidated Senior Debt ”:  at a particular time for the Capital Corporation and its consolidated Subsidiaries, indebtedness for borrowed money other than any indebtedness for borrowed money that is subordinated, on terms no less favorable to the Administrative Agent and the Banks than the terms of subordination set forth on Schedule I, to the indebtedness which may be incurred hereunder by the Capital Corporation, provided that the amount of such indebtedness for borrowed money (other than such subordinated indebtedness) as at the end of a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available consolidated balance sheet of the Capital Corporation and its consolidated Subsidiaries as at the end of such fiscal quarter and after such adjustments, if any, as may be required so that such amount is determined in accordance with GAAP.  Notwithstanding the foregoing, for purposes of determining compliance with subsection 7.2, indebtedness for borrowed money in respect of any Securitization Indebtedness shall be deemed not included in Consolidated Senior Debt.

 

“ Contractual Obligation ”:  as to any Person, any provision of any security issued by such Person or of any agreement, instrument or undertaking to which such Person is a party or by which it or any of its property is bound.

 

“ Credit Default Swap Spread ”:  as defined in subsection 2.21.

 

“ Credit Rating ”:  (a) as to any Person, the rating assigned to the relevant long term senior unsecured (and non-credit enhanced) Debt obligations of such Person by Moody’s or S&P and (b) if no rating for such Debt described in clause (a) is available, the corporate credit rating of such Person as announced by Moody’s or S&P.

 

“ Data Provider ”:  as defined in subsection 2.22(b).

 

“ Debt ”:  as defined in subsection 6.2.

 

“ Default ”:  any of the events specified in Section 8, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, event or act has been satisfied.

 

5

 

“ Defaulting Bank ”:  any Bank that has (a) following satisfaction of the conditions to funding under subsection 4.2, failed to fund any portion of its Loans within one Business Day of the date required to be funded by it hereunder, unless the subject of a good faith dispute; (b) notified the Company, the Administrative Agent or any Bank in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements in which it commits to extend credit; (c) failed, within three Business Days after written request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans; provided that confirmation received by the Administrative Agent beyond three Business Days shall remedy the default under this clause (c); (d) otherwise failed to pay over to the Administrative Agent or any other Bank any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute; or (e) (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.  If any Bank shall become a Defaulting Bank, the Company shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving written notice to the Administrative Agent and such Bank in accordance with subsection 2.6, notwithstanding subsection 2.12(b), to prepay in full the Loans of such Bank, together with accrued interest thereon, any amounts payable to such Bank pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or other amount payable to such Bank hereunder and/or, upon giving not less than three Business Days’ notice to such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of any such Bank.

 

“ Designated User ”:  a Person designated as such by a Bank, the Borrower or the Administrative Agent.

 

“ Determination Date ”:  at any time (a) for any Eurodollar Loan, (i) the date two Business Days before the commencement of the Interest Period applicable to such Loan and (ii) in the case of an Interest Period of more than three months duration, the date that is the last Business Day of each successive three-month period during such Interest Period, and (b) for any ABR Loan, (i) initially, the Closing Date and (ii) from and after the end of the Calendar Quarter during which the Closing Date occurs, the last day of the Calendar Quarter most recently ended at such time.

 

“ Documentation Agents ”:  as defined in the preamble hereto.

 

“ Dollars ” and “ $ ”:  dollars in lawful currency of the United States of America.

 

6

 

“ Equipment Operations ”:  those business segments of the Company and its consolidated Subsidiaries that are primarily engaged in the manufacture and distribution of equipment, parts and related attachments.

 

“ Equipment Operations Debt ”:  at a particular time, the sum of short-term and long-term indebtedness for borrowed money that is or would be shown on a balance sheet of Equipment Operations (with Financial Services reflected only on an equity basis), which balance sheet was or would be prepared on the basis of the most recent publicly available consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of any fiscal quarter of the Company and its consolidated Subsidiaries (including the last quarter of any fiscal year of the Company and its consolidated Subsidiaries).

 

“ ERISA ”:  the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

“ Eurodollar Loans ”:  Committed Rate Loans at such time as they are made and/or being maintained at a rate of interest based upon a Eurodollar Rate (other than ABR Loans bearing interest based on clause (c) of the definition of “ABR”).

 

“ Eurodollar Margin ”:  as defined in subsection in subsection 2.21.

 

“ Eurodollar Rate ”:  with respect to each day during each Interest Period pertaining to a Eurodollar Loan and for each Index Rate Bid Loan, the rate per annum determined on the basis of the rate for deposits in Dollars, for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on the Reuters Screen LIBOR01 Page as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not appear on the Reuters Screen LIBOR01 Page (or otherwise on such system), the “ Eurodollar Rate ” shall be determined by reference to such other comparable publicly available service for displaying eurodollar rates as may be reasonably selected by the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative Agent is offered Dollar deposits at or about 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where its eurodollar operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein.

 

“ Existing Credit Agreement ”:  the $750,000,000 364-Day Credit Agreement dated as of March 4, 2008 among the Borrowers, the Banks parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank N.A. and Credit Suisse First Boston, as Documentation Agents, Merrill Lynch Bank USA, as Co-Documentation Agent, and Bank of America, N.A. and Deutsche Bank AG New York Branch, as Syndication Agents.

 

“ Exposure ”:  (a) with respect to an Objecting Bank at any time after the termination of the Commitment of such Bank, the aggregate outstanding principal amount of its Loans and (b) with respect to any other Bank at any other time, the Commitment of such Bank.

 

7

 

“ Extension Request ”:  each request by the Borrowers made pursuant to subsection 2.16 for the Banks to extend this Agreement, which shall contain the information in respect of such extension specified in Exhibit I and shall be delivered to the Administrative Agent in writing.

 

“ Event of Default ”:  any of the events specified in Section 8, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, event or act has been satisfied.

 

“ Facility Fee Rate ”:  the rate per annum set forth below in the column corresponding to the Prevailing Rating of the Company:

 

 

“ Financial Services ”:  the businesses of the Company (including the credit businesses) that are not primarily engaged in Equipment Operations.

 

“ Fixed Charges ”:  for any particular period for the Capital Corporation and its consolidated Subsidiaries, all of the Capital Corporation’s and its consolidated Subsidiaries’ consolidated interest on indebtedness for borrowed money, amortization of discounts of indebtedness for borrowed money, the portion of rentals under financing leases deemed to represent interest and rentals under operating leases; provided , that, notwithstanding the foregoing, consolidated interest on Securitization Indebtedness and amortization of Securitization Indebtedness shall be deemed not included in Fixed Charges; provided , further , that such amounts (but not any amounts constituting consolidated interest on, or amortization of, Securitization Indebtedness) for a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available consolidated statement of income of the Capital Corporation and its consolidated Subsidiaries for or covering such fiscal quarter and after such adjustments, if any, as may be required so that such amounts are determined in accordance with GAAP.

 

“ Foreign Taxes ”:  as defined in subsection 2.17(a).

 

“ GAAP ”:  generally accepted accounting principles in the United States of America as applied in the preparation of financial statements of the Company or the Capital Corporation, respectively, as of the fiscal year ended October 31, 2006.

 

“ Governmental Authority ”:  any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

“ Hedging Transaction ”:  any swap transaction, interest rate protection agreement (including any interest rate swap, interest “cap” or “collar” or any other interest rate

 

8

 

hedging device entered into by the Capital Corporation or one or more of its Subsidiaries), option agreement, short or long position in equity or debt instruments, commodities, futures and forward transactions, outperformance agreement or other similar transaction, agreement or arrangement entered into by the Capital Corporation or one or more of its Subsidiaries.

 

“ Important Property ”:  (a) any manufacturing plant, including land, all buildings and other improvements thereon, and all manufacturing machinery and equipment located therein, owned and used by the Company or a Restricted Subsidiary primarily for the manufacture of products to be sold by the Company or such Restricted Subsidiary, (b) the executive office and administrative building of the Company in Moline, Illinois, and (c) research and development facilities, including land and buildings and other improvements thereon and research and development machinery and equipment located therein, in each case, owned and used by the Company or a Restricted Subsidiary; except in any case property of which the aggregate fair value as determined by the Board of Directors of the Company does not at the time exceed 1% of Consolidated Net Worth.

 

“ Increasing Bank ”:  as defined in subsection 2.20(c).

 

“ Index Rate Bid Loan ”:  any Bid Loan made at an interest rate based upon the Applicable Index Rate.

 

“ Index Rate Bid Loan Request ”:  any Bid Loan Request requesting the Banks to offer to make Index Rate Bid Loans at an interest rate equal to the Applicable Index Rate plus (or minus ) a margin.

 

“ Interest Payment Date ”:  (a) as to any ABR Loan, the last Business Day of each March, June, September and December, commencing on the first of such days to occur after such ABR Loan is made or a Eurodollar Loan is converted to an ABR Loan, (b) as to any Eurodollar Loan, the last day of each Interest Period applicable thereto, provided that as to any Eurodollar Loan in respect of which a Borrower has selected an Interest Period of six months, interest shall also be paid on the day which is three months after the beginning of such Interest Period, (c) with respect to any Objecting Bank, the day on which such Bank’s Loans become due and payable in accordance with subsection 2.16(b) and (d) the Maturity Date.

 

“ Interest Period ”:  (a) with respect to any Eurodollar Loan, the period commencing on the Borrowing Date, the date any ABR Loan is converted to a Eurodollar Loan or the date any Eurodollar Loan is continued as a Eurodollar Loan, as the case may be, with respect to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by a Borrower in its notice of borrowing, conversion or continuance as provided in subsection 2.1(c) or 2.9;

 

(b)            with respect to any Bid Loan, the period commencing on the Borrowing Date with respect to such Bid Loan and ending on the date not less than seven days nor more than six months thereafter, as specified by a Borrower in its Bid Loan Request as provided in subsection 2.2(b); and

 

9

 

(c)            with respect to any Negotiated Rate Loan, the period or periods commencing on the Borrowing Date with respect to such Negotiated Rate Loan or the last day of any Interest Period with respect thereto and ending on the dates as shall be mutually agreed upon between the relevant Borrower and the relevant Bank;

 

provided , that all of the foregoing provisions relating to Interest Periods are subject to the following:

 

(i)             if any Interest Period pertaining to a Eurodollar Loan or an Index Rate Bid Loan would otherwise end on a day which is not a Working Day, that Interest Period shall be extended to the next succeeding Working Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Working Day;

 

(ii)            if any Interest Period pertaining to a Negotiated Rate Loan or an Absolute Rate Bid Loan would otherwise end on a day which is not a Business Day, that Interest Period shall be extended to the next succeeding Business Day;

 

(iii)           any Interest Period pertaining to a Eurodollar Loan having an Interest Period of one, two, three or six months or an Index Rate Bid Loan having an Interest Period of one, two, three, four, five or six months, that begins on the last Working Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Working Day of a calendar month;

 

(iv)           Interest Periods shall be deemed available only if the Required Banks shall not have advised the Administrative Agent that the Eurodollar Rate determined by the Administrative Agent on the basis of the applicable quotes will not adequately and fairly reflect the cost to such Banks of maintaining or funding their Committed Rate Loans bearing interest based on the Eurodollar Rate determined for such Interest Period.  The Administrative Agent shall notify the Borrowers and each Bank promptly after having been advised by the Required Banks that a Eurodollar Rate will not so adequately and fairly reflect such Banks’ costs as aforesaid.  If a requested Interest Period shall be unavailable in accordance with the foregoing sentence, the proposed Borrower may (A) in accordance with the provisions (including any requirements for notification) of subsection 2.1 request, at its option, that the requested Committed Rate Loans be made or maintained as ABR Loans or (B) withdraw the request for such Committed Rate Loans for which the Interest Period was unavailable by giving notice of such election to the Administrative Agent in accordance with subsection 2.11; provided , that if the Administrative Agent does not receive any notice hereunder with respect to requested Committed Rate Loans, such Borrower shall be deemed to have requested ABR Loans;

 

(v)            with respect to Loans made by an Objecting Bank, no Interest Periods with respect to such Loans shall end after the first anniversary of such Objecting Bank’s Commitment Expiration Date; and

 

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(vi)           no Interest Period shall end after the Maturity Date.

 

“ JPMorgan Chase Bank, N.A. ”:  JPMorgan Chase Bank, N.A., a national association.

 

“ Loan Account ”:  as defined in subsection 2.3; collectively, the “ Loan Accounts ”.

 

“ Loan Assignees ”:  as defined in subsection 10.5(c).

 

“ Loan Assignment ”:  a Loan Assignment, substantially in the form of Exhibit E.

 

“ Loans ”:  the collective reference to the Committed Rate Loans, the Bid Loans and the Negotiated Rate Loans.

 

“ Majority Banks ”:  at any particular time, Banks having Commitment Percentages aggregating more than fifty percent; provided that (a) at any time after the termination of all the Commitments, “Majority Banks” shall mean Banks holding Loans aggregating more than fifty percent in principal amount of all outstanding Loans and (b) at any time after the Commitment Expiration Date with respect to any Objecting Bank (but prior to the termination of all the Commitments), “Majority Banks” shall mean Banks whose Exposure aggregates more than fifty percent of the aggregate Exposure of all the Banks.

 

“ Margin Stock ”:  as defined in Regulation U of the Board.

 

“ Markit ”:  Markit Group Limited or any successor thereto.

 

“ Markit Data ”:  as defined in subsection 2.22(a).

 

“ Maturity Date ”:  the one-year anniversary of the Termination Date.

 

“ Moody’s ”:  Moody’s Investor Service, Inc.

 

“ Mortgage ”:  as defined in subsection 6.2.

 

“ Negotiated Rate Loan ”:  each Loan made to a Borrower by a Bank pursuant to a Negotiated Rate Loan Request in such principal amount, for such number of Interest Periods (subject to the proviso to the definition of “Interest Period” in this subsection 1.1) and having such interest rate(s) and repayment terms as shall, in each case, be mutually agreed upon between such Borrower and such Bank.

 

“ Negotiated Rate Loan Request ”:  each request by a Borrower for a Bank to make Negotiated Rate Loans, which shall be delivered to such Bank in writing, by facsimile transmission, or by telephone, immediately confirmed in writing, and which shall specify the amount to be borrowed and the proposed Borrowing Date.

 

“ Negotiation Period ”:  as defined in subsection 2.21.

 

“ Net Earnings Available for Fixed Charges ”:  for any particular period for the Capital Corporation and its consolidated Subsidiaries, consolidated net earnings of the

 

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Capital Corporation and such Subsidiaries for such period without deduction of Fixed Charges and without deduction of federal, state or other income taxes, provided that such net earnings for a fiscal quarter of the Capital Corporation and its consolidated Subsidiaries (including the last quarter of a fiscal year of the Capital Corporation and its consolidated Subsidiaries) shall be determined by reference to the publicly available statement of income of the Capital Corporation and its consolidated Subsidiaries for or covering such fiscal quarter and after such adjustments, if any, as may be required so that such net earnings are determined in accordance with GAAP, except that earned investment tax credits may be included as revenue in the consolidated income statement of the Capital Corporation and its consolidated Subsidiaries, rather than as an offset against the provision for income taxes.

 

“ New Bank ”:  as defined in subsection 2.20(b).

 

“ New Bank Supplement ”:  as defined in subsection 2.20(b).

 

“ Notes ”:  the collective reference to any promissory note evidencing Loans.

 

“ Objecting Banks ”:  as defined in subsection 2.16(a).

 

“ Offered Increase Amount ”:  as defined in subsection 2.20(a).

 

“ Participants ”:  as defined in subsection 10.5(b).

 

“ Person ”:  an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature, provided that for purposes of Section 8(h), Person shall also include two or more entities acting as a syndicate or any other group for the purpose of acquiring, holding or disposing of securities of the Company.

 

“ Plan ”:  any pension plan which is covered by Title IV of ERISA and in respect of which either Borrower or a Commonly Controlled Entity is an “employer” as defined in Section 3(5) of ERISA.

 

“ Prevailing Rating ”:  at any date of determination, the higher of (x) the Credit Rating of the Company assigned by S&P and (y) the Credit Rating of the Company assigned by Moody’s.

 

“ Purchasing Banks ”:  as defined in subsection 10.5(d).

 

“ Re-Allocation Date ”:  as defined in subsection 2.20(e).

 

“ Register ”:  as defined in subsection 10.5(e).

 

“ Report Period ”:  as defined in subsection 2.18.

 

“ Reportable Event ”:  any of the events set forth in Section 4043(b) of ERISA or the regulations thereunder.

 

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“ Required Banks ”:  at a particular time, Banks having Commitment Percentages aggregating at least 66-2/3%; provided that (a) at any time after the termination of all the Commitments, “Required Banks” means Banks holding Loans aggregating at least 66-2/3% in principal amount of all outstanding Loans, (b) as used in subsection 2.16, “Required Banks” means with respect to any Extension Request, at a particular time after the Termination Date has been extended pursuant to such subsection, Banks (i) which are not Objecting Banks with respect to any previous Extension Request and (ii) which have Commitment Percentages aggregating at least 66-2/3% of the aggregate Commitment Percentages of such non-Objecting Banks and (c) as used in any provision other than subsection 2.16 at any time after the Commitment Expiration Date with respect to any Objecting Bank (but prior to the termination of all the Commitments), “ Required Banks ” means Banks whose Exposure aggregates at least 66-2/3% of the aggregate Exposure of all the Banks.

 

“ Requirement of Law ”:  as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

“ Reserves ”:  as defined in subsection 2.13(c).

 

“ Responsible Officer ”:  of a Borrower, the Chairman, the President, any Executive, Senior or other Vice President, the Treasurer and any Assistant Treasurer of such Borrower.

 

“ Restricted Margin Stock ”:  any Margin Stock, the sale, pledge or other disposition of which by the Company or any of its Subsidiaries is in any way restricted by an arrangement with any Bank or any affiliate thereof to the extent that the value thereof (determined in accordance with Regulation U of the Board) does not exceed 25% of the value (determined in accordance with such Regulation U) of all the assets subject to such restriction.

 

“ Restricted Subsidiary ”:  any Subsidiary of the Company incorporated in the United States of America or Canada (a) which is engaged in, or whose principal assets consist of property used by the Company or any Restricted Subsidiary in, the manufacture of products within the United States of America or Canada or in the sale of products principally to customers located in the United States of America or Canada except any corporation which is a retail dealer in which the Company has, directly or indirectly, an investment, or (b) which the Company shall designate as a Restricted Subsidiary in an officers’ certificate signed by two Responsible Officers of the Company and delivered to the Administrative Agent.

 

“ S&P ”:  Standard and Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

 

“ Sale and Lease-back Transaction ”:  as defined in subsection 6.3.

 

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“ Securitization Indebtedness ”:  the aggregate outstanding indebtedness for borrowed money, owner trust certificates (however classified) or credit enhancements incurred in connection with transactions involving (i) the sale, transfer or other disposition of receivables or leases (retail or wholesale) by the Capital Corporation or any of its Subsidiaries and (ii) the issuance of commercial paper, medium term notes or any other form of financing by any structured bankruptcy-remote Subsidiary of the Capital Corporation or any related conduit lender (such transactions, “Securitizations”), provided, that the aggregate outstanding credit enhancements in the form of cash or letter(s) of credit provided by the Capital Corporation or any of its Subsidiaries (other than any structured bankruptcy-remote Subsidiary) in excess of 10% of the aggregate outstanding indebtedness for borrowed money and owner trust certificates (however classified) incurred in connection with such Securitizations shall not be deemed for the purposes of this Agreement to be Securitization Indebtedness, but shall be deemed for purposes of Section 7.2 to be Consolidated Senior Debt.

 

“ Significant Subsidiary ”:  of a Borrower, any Subsidiary of such Borrower the assets, revenues or net worth of which is, at the time of determination, equal to or greater than ten percent of the assets, revenues or net worth, respectively, of such Borrower at such time.

 

“ Subsidiary ”:  of a Person, a corporation or other entity of which securities or other ownership interests having ordinary voting power (other than securities or other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the  board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person or one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person.

 

“ Syndication Agent ”:  as defined in the preamble hereto.

 

“ Termination Date ”:  the date which is 364 days after the Closing Date or such later date as shall be determined pursuant to the provisions of subsection 2.16 with respect to non-Objecting Banks.

 

“ Total Stockholders’ Equity ”:  at a particular time, the total stockholders’ equity, exclusive of adjustments resulting from any accumulated other comprehensive income of the Company and its consolidated Subsidiaries as at the end of any fiscal quarter (including the last quarter of any fiscal year) as determined in accordance with GAAP.

 

“ Transferees ”:  as defined in subsection 10.5(g).

 

“ Transfer Effective Date ”:  as defined in each Commitment Transfer Supplement and each Loan Assignment.

 

“ Type ”:  as to any Committed Rate Loan, its nature as an ABR Loan or Eurodollar Loan.

 

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“ Working Day ”:  any Business Day on which dealings in foreign currencies and exchange between banks may be carried on in London, England and New York, New York.

 

1.2.           Other Definitional Provisions .  (a)  All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto.

 

(b)            As used herein and in any certificate or other document made or delivered pursuant hereto, accounting terms relating to either Borrower and its Subsidiaries not defined in subsection 1.1, and accounting terms partly defined in subsection 1.1 to the extent not defined, shall have the respective meanings given to them under GAAP.

 

(c)            The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified.

 

(d)            Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the relevant Borrower.

 

SECTION 2                                  THE COMMITTED RATE LOANS; THE BID LOANS; THE NEGOTIATED RATE LOANS; AMOUNT AND TERMS

 

2.1.           The Committed Rate Loans .   (a)  During the Commitment Period, subject to the terms and conditions hereof, each Bank severally agrees to make loans (individually, a “ Committed Rate Loan ”) to either Borrower in Dollars from time to time in an aggregate principal amount for both Borrowers at any one time outstanding not to exceed such Bank’s Commitment.  During the Commitment Period, either Borrower may use the Commitments by borrowing, repaying and reborrowing, all in accordance with the terms and conditions hereof.

 

(b)            The Committed Rate Loans may be either (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof as determined by the relevant Borrower.

 

(c)            Either Borrower may borrow Committed Rate Loans on any Working Day, if the borrowing is of Eurodollar Loans, or on any Business Day, if the borrowing is of ABR Loans; provided , however , that a Responsible Officer of such Borrower shall give the Administrative Agent irrevocable notice thereof (which notice must be received by the Administrative Agent (i) prior to 12:00 Noon, New York City time, three Working Days prior to the requested Borrowing Date, in the case of Eurodollar Loans and (ii) prior to 12:00 Noon, New York City time, on the requested Borrowing Date, in the case of ABR Loans.  Each such notice shall be given in writing or by facsimile transmission substantially in the form of Exhibit A (with appropriate insertions) or shall be given by telephone (specifying the information set forth in Exhibit A) promptly confirmed by notice given in writing or by facsimile transmission substantially in the form of Exhibit A (with appropriate insertions).  On the day of receipt of any such notice from either Borrower, the Administrative Agent shall promptly notify each Bank thereof.  Each Bank will make the amount of its share of each borrowing available to the

 

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Administrative Agent for the account of such Borrower at the office of the Administrative Agent set forth in subsection 10.2 at 11:00 A.M. (or 2:00 P.M., in the case of ABR Loans requested pursuant to clause (iii) above), New York City time, on the Borrowing Date requested by such Borrower in funds immediately available to the Administrative Agent as the Administrative Agent may direct.  The proceeds of all such Committed Rate Loans will be made available promptly to such Borrower by the Administrative Agent at the office of the Administrative Agent specified in subsection 10.2 by crediting the account of such Borrower on the books of such office of the Administrative Agent with the aggregate of the amount made available to the Administrative Agent by the Banks and in like funds as received by the Administrative Agent.

 

(d)            All Committed Rate Loans made to each Borrower shall be repaid in full by such Borrower on or before the Maturity Date; provided the Committed Rate Loans made by Objecting Banks shall be repaid as provided in subsection 2.16(b).

 

2.2.           The Bid Loans; the Negotiated Rate Loans .   (a)  Either Borrower may borrow Bid Loans or Negotiated Rate Loans from time to time on any Business Day (in the case of Bid Loans made pursuant to an Absolute Rate Bid Loan Request), any Working Day (in the case of Bid Loans made pursuant to an Index Rate Bid Loan Request) or, in the case of Negotiated Rate Loans, on such days as shall be mutually agreed upon between the relevant Borrower and the applicable Bank, in each case during the Commitment Period and in the manner set forth in this subsection 2.2 and in amounts such that the aggregate principal amount of Loans at any time outstanding shall not exceed the aggregate amount of the Commitments at such time.  Notwithstanding any other provision of this Agreement, the aggregate principal amount of the outstanding Bid Loans and/or Negotiated Rate Loans made by any Bank may at any time (but shall not be required to) exceed the Commitment of such Bank so long as the aggregate outstanding principal amount of all Loans does not at any time exceed the aggregate amount of the Commitments.

 

(b)            (i)  Either Borrower shall request Bid Loans or Negotiated Rate Loans by delivering (A) in the case of an Index Rate Bid Loan, a Bid Loan Request to the Administrative Agent, c/o JPMorgan Chase Bank, N.A., 1111 Fannin Street, 10 th  Floor, Houston, Texas 77002, Attention:  Talitha Humes, Telephone:  (713) 750-6190, Facsimile:  (713) 750-2782, not later than 12:00 Noon (New York City time) four Working Days prior to the proposed Borrowing Date, (B) in the case of an Absolute Rate Bid Loan, a Bid Loan Request to the Administrative Agent at the address set forth in clause (A) of this subsection 2.2(b)(i) not later than 10:00 A.M. (New York City time) one Business Day prior to the proposed Borrowing Date or (C) in the case of a Negotiated Rate Loan, a Negotiated Rate Loan Request to any Bank at such time as the applicable Borrower and the applicable Bank shall agree.  Each Bid Loan Request may solicit bids for Bid Loans in an aggregate principal amount of $25,000,000 or an integral multiple of $5,000,000 in excess thereof and for not more than three alternative Interest Periods for such Bid Loans.  The Administrative Agent shall promptly notify each Bid Loan Bank by facsimile transmission or by telephone, immediately confirmed by facsimile transmission, of the contents of each Bid Loan Request received by it.

 

(ii)            In the case of an Index Rate Bid Loan Request, upon receipt of notice from the Administrative Agent of the contents of such Bid Loan Request, any Bid Loan Bank that elects, in its sole discretion, to do so, shall irrevocably offer to make one or more Bid

 

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Loans at the Applicable Index Rate plus or minus a margin for each such Bid Loan determined by such Bid Loan Bank, in its sole discretion.  Any such irrevocable offer shall be made by delivering a Bid Loan Offer to the Administrative Agent at the address set forth in clause (i)(A) above before 10:30 A.M. (New York City time) three Working Days before the proposed Borrowing Date, setting forth the maximum amount of Bid Loans for each Interest Period, and the aggregate maximum amount for all Interest Periods, which such Bank would be willing to make and the margin above or below the Applicable Index Rate at which such Bid Loan Bank is willing to make each such Bid Loan.  The Administrative Agent shall advise the relevant Borrower before 11:00 A.M. (New York City time) three Working Days before the proposed Borrowing Date of the contents of each such Bid Loan Offer received by it.  If the Administrative Agent in its capacity as a Bid Loan Bank shall, in its sole discretion, elect to make any such offer, it shall advise such Borrower of the contents of its Bid Loan Offer before 10:15 A.M. (New York City time) three Working Days before the proposed Borrowing Date.

 

(iii)           In the case of an Absolute Rate Bid Loan Request, upon receipt of notice from the Administrative Agent of the contents of such Bid Loan Request, any Bid Loan Bank that elects, in its sole discretion, to do so, shall irrevocably offer to make one or more Bid Loans at a rate or rates of interest for each such Bid Loan determined by such Bid Loan Bank in its sole discretion.  Any such irrevocable offer shall be made by delivering a Bid Loan Offer to the Administrative Agent at the address set forth in clause (i)(A) of this subsection 2.2(b) before 9:30 A.M. (New York City time) on the proposed Borrowing Date, setting forth the maximum amount of Bid Loans for each Interest Period, and the aggregate maximum amount for all Interest Periods, which such Bid Loan Bank would be willing to make and the rate or rates of interest at which such Bid Loan Bank is willing to make each such Bid Loan.  The Administrative Agent shall advise the relevant Borrower before 10:00 A.M. (New York City time) on the proposed Borrowing Date of the contents of each such Bid Loan Offer received by it.  If the Administrative Agent in its capacity as a Bid Loan Bank shall, in its sole discretion, elect to make any such offer, it shall advise such Borrower of the contents of its Bid Loan Offer before 9:15 A.M. (New York City time) on the proposed Borrowing Date.

 

(iv)           The relevant Borrower shall before 11:30 A.M. (New York City time) three Working Days before the proposed Borrowing Date (in the case of Bid Loans requested by an Index Rate Bid Loan Request) and before 10:30 A.M. (New York City time) on the proposed Borrowing Date (in the case of Bid Loans requested by an Absolute Rate Bid Loan Request) either, in its absolute discretion:

 

(A)           cancel such Bid Loan Request by giving the Administrative Agent telephone notice to that effect, or

 

(B)            accept one or more of the offers made by any Bid Loan Bank or Bid Loan Banks pursuant to clause (ii) or clause (iii) of this subsection 2.2(b), as the case may be, by giving telephone notice to the Administrative Agent (immediately confirmed by delivery to the Administrative Agent at the address set forth in clause (i)(A) of this subsection 2.2(b) of a Bid Loan Confirmation) of the amount of Bid Loans for each relevant Interest Period to be made by each Bid Loan Bank (which amount shall be equal to or less than the maximum amount for such Interest Period specified in the Bid Loan Offer of such Bid Loan Bank, and for all Interest Periods included in such Bid Loan

 

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Offer shall be equal to or less than the aggregate maximum amount specified in such Bid Loan Offer for all such Interest Periods) and reject any remaining offers made by Bid Loan Banks pursuant to clause (ii) or clause (iii) above, as the case may be; provided , however , that (x) such Borrower may not accept offers for Bid Loans for any Interest Period in an aggregate principal amount in excess of the maximum principal amount requested for such Interest Period in the related Bid Loan Request, (y) if such Borrower accepts any such offers, it must accept offers strictly based upon pricing for such relevant Interest Period and upon no other criteria whatsoever and (z) if two or more Bid Loan Banks submit offers for any Interest Period at identical pricing and such Borrower accepts any of such offers but does not wish to borrow the total amount offered by such Bid Loan Banks with such identical pricing, such Borrower shall accept offers from all of such Bid Loan Banks in amounts allocated among them pro rata according to the amounts offered by such Bid Loan Banks (or as nearly pro rata as shall be practicable, after giving effect to the requirement that Bid Loans made by a Bid Loan Bank on a Borrowing Date for each relevant Interest Period shall be in a principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof, it being agreed that to the extent that it is not possible to make allocations in accordance with the provisions of this clause (z) such allocations shall be made in accordance with the instructions of such Borrower, it being understood that in no event shall any Bank be obligated to make any Bid Loan in a principal amount less than $5,000,000).

 

(v)            If such Borrower notifies the Administrative Agent that a Bid Loan Request is cancelled pursuant to clause (iv)(A) of this subsection 2.2(b), the Administrative Agent shall give prompt telephone notice thereof to the Bid Loan Banks, and the Bid Loans requested thereby shall not be made.

 

(vi)           (A)  If such Borrower accepts pursuant to clause (iv)(B) of this subsection 2.2(b) one or more of the offers made by any Bid Loan Bank or Bid Loan Banks pursuant to a Bid Loan Request, the Administrative Agent shall promptly notify by telephone each Bid Loan Bank which has made such an offer of the aggregate amount of such Bid Loans to be made on such Borrowing Date for each Interest Period and of the acceptance or rejection of any offers to make such Bid Loans made by such Bid Loan Bank.  Each Bid Loan Bank which is to make a Bid Loan pursuant to a Bid Loan Request shall, before 12:00 Noon (New York City time) on the Borrowing Date specified in the Bid Loan Request applicable thereto, make available to the Administrative Agent at its office set forth in subsection 10.2 the amount of Bid Loans to be made by such Bid Loan Bank, in immediately available funds.  The Administrative Agent will make such funds available to such Borrower as soon as practicable on such date at the Administrative Agent’s aforesaid address.

 

(B)            If such Borrower and any Bank agree to the terms of a Negotiated Rate Loan to be made on a Borrowing Date pursuant to a Negotiated Rate Loan Request, such Borrower and such Bank shall promptly notify by telephone the Administrative Agent of the aggregate amount of Negotiated Rate Loans to be made on such Borrowing Date and the respective Interest Periods therefor.  Each Bank which is to make a Negotiated Rate Loan shall, at such time, on such Borrowing Date and at such location as shall be mutually agreed upon between such Borrower and such Bank, make available to such

 

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Borrower the amount of Negotiated Rate Loans to be made by such Bank, in immediately available funds.

 

(C)            As soon as practicable after each Borrowing Date for Bid Loans and Negotiated Rate Loans, the Administrative Agent shall notify each Bank of the aggregate amount of Bid Loans or Negotiated Rate Loans advanced pursuant to a Bid Loan Request or Negotiated Rate Loan Request on such Borrowing Date and the respective Interest Periods therefor.

 

(c)            Within the limits and on the conditions set forth in this subsection 2.2, each Borrower may from time to time borrow under this subsection 2.2, repay pursuant to paragraph (d) below, and reborrow under this subsection 2.2.

 

(d)            Each Borrower shall repay to the Administrative Agent for the account of each Bid Loan Bank (or the Loan Assignee in respect thereof, as the case may be) which has made a Bid Loan to such Borrower on the last day of the Interest Period for each Bid Loan (such Interest Period being that specified by such Borrower for repayment of such Bid Loan in the related Bid Loan Request) the then unpaid principal amount of such Bid Loan.  Each Borrower shall repay to each Bank which has made a Negotiated Rate Loan to such Borrower (or the Loan Assignee in respect thereof, as the case may be) the principal thereof as agreed by such Borrower and such Bank.

 

(e)            Each Borrower shall pay interest on the unpaid principal amount of each Bid Loan and each Negotiated Rate Loan borrowed by such Borrower from the applicable Borrowing Date to the stated maturity date thereof, in the case of a Bid Loan, at the rate of interest determined pursuant to paragraph (b) of this subsection 2.2, and, in the case of a Negotiated Rate Loan, as agreed by such Borrower and the relevant Bank (calculated on the basis of a 360 day year for actual days elapsed), payable on the interest payment date or dates (i) specified by such Borrower for such Bid Loan in the related Bid Loan Request and (ii) mutually agreed upon between such Borrower and such Bank in the case of Negotiated Rate Loans, provided that as to any Bid Loan in respect of which the stated maturity date is more than three months after such Borrowing Date, interest shall also be paid on the day which occurs three months after such Borrowing Date.  If all or a portion of the principal amount of any Bid Loan shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue principal amount shall, without limiting any rights of any Bank under this Agreement, bear interest from the date on which such payment was due at a rate per annum which is 1% above the rate which would otherwise be applicable to such Bid Loan until the scheduled maturity date with respect thereto and for each day thereafter at a rate per annum which is 1% above the ABR until paid in full (as well after as before judgment).  If all or any portion of the principal amount of any Negotiated Rate Loan shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), such overdue principal amount shall, without limiting any rights of any Bank under this Agreement, bear interest from the date on which such payment was due at a rate per annum as shall be mutually agreed upon between the relevant Borrower and the relevant Bank.

 

(f)             After the first Bid Loan Request has been given hereunder, no Bid Loan Request or Negotiated Rate Loan Request shall be given until at least one Business Day, in the case of an Absolute Rate Bid Loan Request, or one Working Day, in the case of an Index Rate

 

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Bid Loan Request, after the earliest to occur of (i) the Borrowing Dates with respect to all prior Bid Loan Requests made pursuant to subsection 2.2(b)(i), (ii) the date on which all Bid Loan Banks have failed to submit Bid Loan Offers with respect to any Bid Loan Requests within the time specified in subsection 2.2(b)(ii) or (iii), as the case may be, and (iii) the date on which the relevant Borrower has cancelled all prior Bid Loan Requests pursuant to subsection 2.2(b)(iv).

 

2.3.           Loan Accounts .   Each Bank, with respect to its Committed Rate Loans, Bid Loans and Negotiated Rate Loans, and the Administrative Agent, with respect to all Committed Rate Loans, Negotiated Rate Loans and Bid Loans, shall open and maintain in the name of each Borrower loan accounts (as to each Bank, its “ Loan Account ” applicable to such Borrower) on its books and records setting forth the amounts of principal, interest and other sums paid and payable by such Borrower from time to time hereunder in respect of such Loans, and the obligation of such Borrower to pay or repay, as the case may be, such amounts to such Bank shall be evidenced by such Bank’s Loan Account.  In case of any dispute, action or proceeding relating to any Committed Rate Loan, Bid Loan or Negotiated Rate Loan, the entries in such records shall constitute prima facie evidence of the accuracy of the information set forth therein.  In case of discrepancy between the entries in the Administrative Agent’s books and records and any Bank’s, the entries in the Administrative Agent’s books and records shall constitute prima facie evidence of the accuracy of the information set forth therein.

 

2.4.           Fees .   (a)  The Company and the Capital Corporation jointly and severally agree to pay to the Administrative Agent for the account of each Bank a facility fee (i) from and including the Closing Date to but excluding the date on which the Commitment of such Bank terminates hereunder, computed at a per annum rate equal to the Facility Fee Rate on the average daily amount of the Commitment of such Bank in effect during the period for which payment is made and (ii) thereafter until all Committed Rate Loans of such Bank are paid in full, computed at a per annum rate equal to the Facility Fee Rate on the average daily amount of such Committed Rate Loans outstanding, in each case, payable quarterly in arrears on the first Business Day of each January, April, July and October of each year, on the Termination Date or such earlier date on which the Commitments shall terminate as provided herein, and on the Maturity Date or such earlier date on which the Loans are repaid in full and, with respect to any Objecting Bank, the day on which such Bank’s Loans become due and payable in accordance with subsection 2.16(b), commencing in April, 2009.

 

(b)            The Company and the Capital Corporation jointly and severally agree to pay to the Administrative Agent for its own account all fees set forth in the letter agreement dated January 29, 2009 from J.P. Morgan Securities Inc. and JPMorgan Chase Bank, N.A. to the Borrowers.

 

(c)            The Company and the Capital Corporation jointly and severally agree to pay to the Administrative Agent for its own account all other fees payable to the Administrative Agent as the Borrowers and the Administrative Agent shall mutually agree from time to time.

 

2.5.           Termination or Reduction of Commitments; Cancellation of Capital Corporation as Borrower .   (a)  The Borrowers, acting jointly, shall have the right, upon not less than five Business Days’ notice to the Administrative Agent, to terminate the Commitments or, from time to time, reduce the amount of the Commitments, provided that (i) any such reduction shall be accompanied by prepayment of Committed Rate Loans hereunder, together with accrued

 

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interest on the amount so prepaid to the date of such prepayment, to the extent, if any, that the aggregate outstanding principal amount of all Loans exceeds the amount of the Commitments as then reduced and (ii) any such termination of the Commitments shall be accompanied by  prepayment in full of the Loans then outstanding hereunder in accordance with subsection 2.6 together with payment of any accrued interest and fees, and any termination of a Bank’s Commitment pursuant to subsection 2.13, 2.16 or 2.17 shall, with respect to each affected Loan, on the last day of the applicable Interest Period therefor or, if earlier, on such earlier date as shall be notified by the Borrowers, be accompanied by prepayment in full of such Loan, together with, in each case, accrued interest thereon to the date of such prepayment, the payment of any unpaid facility fee then accrued hereunder, and the payment of any amounts then payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17.  Upon receipt of such notice from the Borrowers the Administrative Agent shall promptly notify each Bank thereof.  Any reduction of the Commitments pursuant to this subsection 2.5 shall be in an amount not less than $25,000,000, and shall be an amount which is a whole multiple of $5,000,000, and shall reduce permanently the amount of the Commitments then in effect.

 

(b)            The Company may cancel the ability of the Capital Corporation to borrow hereunder upon not less than five Business Days’ notice to the Administrative Agent.  Upon receipt of such notice from the Company, the Administrative Agent shall promptly notify each Bank thereof.  On the first day following receipt of such notice, on which all Loans to the Capital Corporation and all interest thereon shall have been paid in full, and notwithstanding any other provision of this Agreement, (i) the Capital Corporation shall cease to be a party hereto or to have any right or obligation hereunder, (ii) rights and obligations expressed herein to be, in effect, of either the Company or the Capital Corporation or of both of them, but not any such rights and obligations expressed herein to be of the Capital Corporation only, shall be deemed to be rights and obligations of the Company only and (iii) the Banks shall cease to have any right or obligation hereunder which depends or is contingent upon any action, condition or performance, or the absence thereof, whether past or present, of the Capital Corporation other than any action, condition or performance, or the absence thereof, of the Capital Corporation in its capacity as a Subsidiary, Significant Subsidiary or Restricted Subsidiary hereunder; provided , however , that the obligation of the Capital Corporation to make any payment pursuant to subsection 2.13, 2.14, 2.15 or 2.17 which arises prior to the cancellation of the ability of the Capital Corporation to borrow hereunder shall survive the cancellation of the ability of the Capital Corporation to borrow hereunder.

 

2.6.           Optional Prepayments .   Either Borrower may at any time and from time to time prepay its Committed Rate Loans in whole or in part, without premium or penalty, but subject to the provisions of subsection 2.14, upon at least three Working Days’ irrevocable notice (by 11:00 a.m., New York City time), in the case of Eurodollar Loans, or same day irrevocable notice in the case of ABR Loans, in each case to the Administrative Agent, specifying the date and amount of prepayment and whether the prepayment is of its Eurodollar Loans, ABR Loans, or a combination thereof, and if of a combination thereof, the amount of prepayment allocable to each.  Upon receipt of such notice the Administrative Agent shall promptly notify each Bank thereof.  If such notice is given, the Borrower delivering such notice shall make such prepayment, and the payment of the amount specified in such notice shall be due and payable, on the date specified therein, together with accrued interest to such date on the amount prepaid and any amounts payable pursuant to subsections 2.14 and 2.15.  Except as provided in the

 

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immediately following sentence, partial prepayments shall be in an aggregate principal amount of $5,000,000, or a whole multiple thereof; provided , however , that after giving effect thereto, the aggregate principal amount of all Committed Rate Loans made on the same Borrowing Date shall not be less than $25,000,000.  Anything contained in this subsection 2.6 to the contrary notwithstanding, partial prepayments of a Cancelled Bank’s Loans in connection with the termination under subsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b), or upon a Defaulting Bank becoming a Cancelled Bank, of such Cancelled Bank’s Commitment (in whole or in part) shall be in an amount equal to the principal amount of the Loans of such Bank being prepaid, notwithstanding the amount thereof, and shall be permitted notwithstanding the provisions of the foregoing proviso.  Either Borrower may prepay Negotiated Rate Loans or Bid Loans on such terms as shall be mutually agreed upon between the relevant Borrower and the relevant Bank.

 

2.7.           Minimum Amount of Certain Loans .   All borrowings, conversions, continuations, payments and, except as set forth in the penultimate sentence of subsection 2.6, prepayments in respect of Committed Rate Loans shall be in such amounts and be made pursuant to such elections that, after giving effect thereto, (a) the aggregate principal amount of Committed Rate Loans made on any Borrowing Date shall not be less than $25,000,000 or a whole multiple of $5,000,000 in excess thereof and (b) the aggregate principal amount of Committed Rate Loans of any Type with the same Interest Period shall not be less than $10,000,000 or a whole multiple of $1,000,000 in excess thereof.

 

2.8.           Committed Rate Loan Interest Rate and Payment Dates .   (a)  The Eurodollar Loans shall bear interest for the period from the date thereof until the stated maturity thereof on the unpaid principal amount thereof at a rate per annum equal to the Eurodollar Rate determined for the Interest Period therefor plus the Applicable Margin.

 

(b)            The ABR Loans shall bear interest for each day during the period from the date thereof until the payment in full thereof on the unpaid principal amount thereof at a fluctuating rate per annum equal to the ABR for such day plus the Applicable Margin.

 

(c)            If all or a portion of the principal amount of any of the Committed Rate Loans shall not be paid when due (whether at the stated maturity, by acceleration or otherwise) such overdue principal amount of such Committed Rate Loan (i) shall bear interest at a rate per annum which is 1% above the rate which would otherwise be applicable pursuant to subsection 2.8(a) or (b) as the case may be, from the date when such principal amount is due until the date on which such amount is paid in full and (ii) shall, if such Committed Rate Loan is a Eurodollar Loan, be converted to an ABR Loan at the end of the Interest Period applicable thereto.

 

(d)            Interest shall be payable in arrears on each Interest Payment Date.

 

2.9.           Conversion and Continuation Options .   (a)  The relevant Borrower may elect from time to time to convert Committed Rate Loans of one Type into Committed Rate Loans of another Type by giving to the Administrative Agent irrevocable notice of such conversion by the earliest time that they would have been required to give notice under subsection 2.1(c) if they had been borrowing Committed Rate Loans of each such Type on the conversion date specified in such notice, provided that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto.  Any such notice of conversion to Eurodollar Loans shall specify the length of the initial Interest Period or Interest

 

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Periods therefor.  Upon receipt of any such notice the Administrative Agent shall promptly notify each Bank thereof.  All or any part of outstanding Eurodollar Loans and ABR Loans may be converted as provided herein, provided that no Loan may be converted into a Eurodollar Loan after the date that is one month prior to (i) in the case of a Loan made by an Objecting Bank, the first anniversary of such Objecting Bank’s Commitment Expiration Date, and (ii) in the case of all Loans, the Maturity Date.

 

(b)            Any Eurodollar Loans may be continued as such upon the expiration of the then current Interest Period with respect thereto by the relevant Borrower giving notice to the Administrative Agent, such notice to be given by the time it would have been required to give notice under subsection 2.1(c) if it had been borrowing Eurodollar Loans on the last day of the then expiring Interest Period therefor, of the length of the next Interest Period to be applicable to such Loans, provided that no Eurodollar Loan may be continued as such after the date that is one month prior to (i) in the case of a Loan made by an Objecting Bank, the first anniversary of such Objecting Bank’s Commitment Expiration Date, and (ii) in the case of all Loans, the Maturity Date.  Upon receipt of any such notice, the Administrative Agent shall promptly notify each Bank thereof.

 

2.10.         Computation of Interest and Fees .   (a)  Facility fees and interest in respect of ABR Loans based upon clause (a) of the definition of ABR shall be calculated on the basis of a 365- (or 366- as the case may be) day year for the actual days elapsed (including the first day and excluding the last day).  Interest in respect of Eurodollar Loans, Bid Loans and ABR Loans based upon clause (b) or (c) of the definition of ABR shall be calculated on the basis of a 360-day year for the actual days elapsed (including the first day and excluding the last day).  The Administrative Agent shall promptly notify the Borrowers and the Banks of each determination of a Eurodollar Rate.  Any change in the interest rate on a Committed Rate Loan resulting from a change in the ABR shall become effective as of the opening of business on the day on which such change in the ABR shall become effective.  The Administrative Agent shall promptly notify the Borrowers and the Banks of the effective date and the amount of each such change.

 

(b)            Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrowers and the Banks in the absence of manifest error.

 

2.11.         Inability to Determine Interest Rate .   (a)  In the event that the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrowers) that by reason of circumstances affecting the interbank eurodollar market generally, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for any requested Interest Period with respect to Committed Rate Loans that a Borrower has requested be made as, continued as or converted into Eurodollar Loans, the Administrative Agent shall promptly give notice of such determination to such Borrower and the Banks prior to the first day of the requested Interest Period for such Eurodollar Loans.  If such notice is given, such Borrower may (i) in accordance with the provisions of subsection 2.1 or 2.9, as the case may be (including any requirements for notification), request that the affected Loans be made as, continued as or converted into, as the case may be, ABR Loans, or (ii) in the case of Loans requested to be made on the first day of such Interest Period, withdraw the notice given under subsection 2.1 or 2.9, as the case may be, by giving telephonic notice to the Administrative

 

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Agent, no later than 10:00 A.M. (New York City time) on the applicable Borrowing Date, confirmed in writing no later than one Business Day after such telephonic notice is given; provided that if the Administrative Agent does not receive any notice permitted from the relevant Borrower hereunder, such Borrower shall be deemed to have requested that the affected Loans be made as, continued as or converted into, as the case may be, ABR Loans.  Until the notice given pursuant to the first sentence of this paragraph has been withdrawn by the Administrative Agent, no further Loans shall be made as, continued as or converted into, as the case may be, Eurodollar Loans.

 

(b)            In the event that the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrowers) that by reason of circumstances affecting the interbank eurodollar market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for any Interest Period with respect to a proposed Bid Loan to be made pursuant to an Index Rate Bid Loan Request, the Administrative Agent shall forthwith give notice of such determination to the relevant Borrower and the Bid Loan Banks at least two Business Days prior to the proposed Borrowing Date, and such Bid Loans shall not be made on such Borrowing Date.  Until any such notice has been withdrawn by the Administrative Agent, no further Index Rate Bid Loan Requests shall be submitted by either Borrower.

 

2.12.         Pro Rata Treatment and Payments .   (a)  All payments (including prepayments), to be made by the Borrowers on account of principal, interest and fees shall be made without defense, set-off or counterclaim and shall be made, in the case of fees and principal of, and interest on, Loans (other than Negotiated Rate Loans) at the Administrative Agent’s office specified in subsection 10.2, in each case in lawful money of the United States of America and in immediately available funds not later than 11:00 A.M. (New York City time) on the date due.  The Administrative Agent shall distribute such payments to the Banks entitled thereto on the day of receipt in like funds as received, provided that the Administrative Agent shall have received such payments not later than 11:00 A.M. (New York City time).  If the Administrative Agent shall distribute such payments to the Banks entitled thereto on a date after the date on which such payments were received prior to 11:00 A.M. (New York City time), the Administrative Agent shall pay to each such Bank on demand an amount equal to the product of (i) the daily average Federal Funds rate during such period as quoted by the Administrative Agent, times (ii) the amount of such Bank’s share of such payment, times (iii) a fraction, the numerator of which is the number of days that elapse from and including such date of receipt of payment by the Administrative Agent to but excluding the date on which such Bank’s share of such payment shall have become immediately available to such Bank and the denominator of which is 360.  All payments (including prepayments) to be made by the Borrowers on account of principal, interest and fees relating to Negotiated Rate Loans shall be made to the Bank with respect thereto on such terms, at such address and at such time as shall be mutually agreed upon between the relevant Borrower and the relevant Bank in lawful money of the United States of America on the date due.

 

(b)            (i)  Each borrowing by the Borrowers of Committed Rate Loans and each payment of principal in respect of Committed Rate Loans (subject to the provisions of subsection 2.20(e)) shall be made in accordance with the following requirements:

 

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(A)                               All borrowings of Committed Rate Loans and all principal payments in respect of such Loans, shall be made pro rata according to the respective Commitments of the Banks.

 

(B)                                 As provided in clause (b)(ii) below, if any principal payment is made in respect of any Loans (other than Negotiated Rate Loans) on any day on which principal amounts are due and owing in respect of any Loans (other than Negotiated Rate Loans), such principal payment shall be applied to the Banks pro rata according to the respective amounts of principal due and owing to the Banks under this Agreement.

 

(ii)                                   Except as provided in subsections 2.13, 2.16 and 2.17, each reduction of the Commitments shall be made pro rata among the Banks according to their respective Commitment Percentages.  Each payment by the Borrowers under this Agreement or of any Loan (other than Negotiated Rate Loans) shall be applied, first , to any fees then due and owing pursuant to subsection 2.4, second , to interest then due and owing in respect of the Loans (other than Negotiated Rate Loans) and third , to principal then due and owing hereunder (other than principal due and owing under Negotiated Rate Loans) and under the Loans (other than Negotiated Rate Loans).  Each payment made by the Borrowers under this Agreement relating to a Negotiated Rate Loan to the Bank with respect thereto shall be applied, first , to interest then due and owing in respect of such Negotiated Rate Loan and second , to principal then due and owing hereunder with respect to such Negotiated Rate Loan and under such Negotiated Rate Loan.  Each payment (other than voluntary prepayments made when no principal payments are due and owing hereunder) by either Borrower on account of principal of and interest on the Loans (other than Negotiated Rate Loans) shall be made for the account of each Bank pro rata according to the respective amounts of principal and interest due and owing to such Bank under this Agreement.  Subject to the requirements of clause (i) of this paragraph (b), each payment by a Borrower on account of principal of the Loans (other than Negotiated Rate Loans) shall be applied, first , to such of its Committed Rate Loan borrowings as such Borrower may designate, provided , however , that if any such payment is made after the Commitment Expiration Date for any Objecting Banks to which Committed Rate Loans remain outstanding, such Objecting Banks shall receive, pro rata , the portion of such payment that bears the same ratio to the aggregate outstanding principal amount of Committed Rate Loans owing to all Objecting Banks as the portion of such prepayment applied to the Committed Rate Loans of the other Banks bears to the aggregate outstanding principal amount of Committed Rate Loans owing to such other Banks, and, second , after all Committed Rate Loans shall have been paid in full, to all of its Absolute Rate Bid Loans or Index Rate Bid Loans made on the same Borrowing Date with the same Interest Period as such Borrower may designate, pro rata according to the respective amounts outstanding; provided , however , that prepayments made pursuant to subsection 2.13(a), (b) or (c), 2.16(c) or 2.17(b) shall be applied in accordance with such subsection.

 

(c)                                   If any payment hereunder (other than payments on the Eurodollar Loans and Index Rate Bid Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day.  If any payment on a Eurodollar Loan or Index Rate Bid Loan becomes due and payable on a day other than a Working Day, the maturity thereof shall be extended to the next succeeding Working Day unless the result of such extension would be to extend such payment into another calendar month in which event such payment shall be made on the immediately preceding Working Day.  With respect to any

 

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extension of the payment of principal pursuant to this subsection 2.12(c), interest thereon shall be payable at the then applicable rate during such extension.

 

(d)                                  Unless the Administrative Agent shall have been notified in writing by any Bank prior to the date of the Committed Rate Loan, Committed Rate Loans, Bid Loan or Bid Loans to be made by such Bank (which notice shall be effective upon receipt) that such Bank will not make its pro rata share of the amount of the requested borrowing on such date available to the Administrative Agent, the Administrative Agent may assume that such Bank has made such amount available to it on such date and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount.  If a Bank shall make such amount available to the Administrative Agent on a date after such Borrowing Date, such Bank shall pay to the Administrative Agent on demand an amount equal to the product of (i) the daily average Federal Funds rate during such period as quoted by the Administrative Agent, times (ii) the amount of such Bank’s pro rata share of such borrowing, times (iii) a fraction, the numerator of which is the number of days that elapse from and including such Borrowing Date to but excluding the date on which such Bank’s pro rata share of such borrowing shall have become immediately available to the Administrative Agent and the denominator of which is 360.  A certificate of the Administrative Agent submitted to any Bank with respect to any amounts owing under this subsection 2.12(d) shall be conclusive, absent manifest error.  If such Bank’s pro rata share is not in fact made available to the Administrative Agent by such Bank within three Business Days of such Borrowing Date, the Administrative Agent shall be entitled to recover such amount, on demand, from the relevant Borrower with interest thereon at the rate equal to the product of (i) during the period from and including such Borrowing Date to the Business Day next following the date of such demand, the daily average Federal Funds rate as quoted by the Administrative Agent, times a fraction, the numerator of which is the number of days that elapse from and including such Borrowing Date to but excluding the Business Day next following the date of such demand and the denominator of which is 360 and (ii) thereafter, the interest rate or rates applicable to the Loan or Loans funded by the Administrative Agent on behalf of such Bank on such Borrowing Date, times a fraction, the numerator of which is the number of days which elapse from and including the Business Day next following the date of such demand to but excluding the date such amount is recovered by the Administrative Agent from such Borrower and the denominator of which is 360.  In the event any Bank’s pro rata share of a borrowing is not made available to the Administrative Agent in accordance with this paragraph within three Business Days of the applicable Borrowing Date (i) such Bank shall, during the period from such Borrowing Date to the date such Bank makes its pro rata share of the applicable borrowing available, not accrue and shall not be entitled to receive any facility fee under subsection 2.4 and (ii) either Borrower may exercise or pursue any other rights, remedies, powers and privileges against such Bank as are provided by law or by contract.

 

2.13 .                         Requirements of Law .  (a)  If any Bank shall determine that by reason of (i) the introduction after the date hereof of any applicable law, regulation or guideline or any change after the date hereof in any applicable law, regulation or guideline (including the phasing-in of a provision of any applicable law, regulation or guideline) or in the interpretation thereof by any governmental or other regulatory authority charged with the administration thereof or any court of competent jurisdiction and/or (ii) compliance by such Bank with any requirement adopted after the date hereof or directive adopted after the date hereof from any

 

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central bank or other fiscal, monetary or other regulatory authority (whether or not having the force of law), there shall be any increase in the cost of such Bank of maintaining or giving effect to its obligations with respect to Committed Rate Loans under this Agreement or maintaining its Commitment with respect to Committed Rate Loans or making or maintaining any Eurodollar Loans or any reduction in any amount receivable by such Bank in respect of Eurodollar Loans under this Agreement, notwithstanding the reasonable efforts (such reasonable efforts not to result in the incurrence of additional costs or expenses) of such Bank to mitigate such increase or reduction (excluding for purposes of this subsection 2.13 any such increased costs resulting from (x) Foreign Taxes (as to which subsection 2.17 shall govern) and (y) changes in the basis of taxation 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 Bank is organized or has its applicable lending office or any political subdivision thereof), then the relevant Borrower shall from time to time on receipt (whenever occurring) of a certificate from such Bank (which shall be executed by an officer thereof and a copy of which shall be delivered to the Administrative Agent) pay to such Bank such amounts as are stated therein to be required to indemnify such Bank against such increased costs or reduction; provided , however , that if such Borrower becomes obligated to pay any Bank any additional amount pursuant to this subsection 2.13(a), such Borrower shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving notice to the Administrative Agent and such Bank in accordance with subsection 2.6, to prepay in full the Loans of such Bank, together with accrued interest thereon, any amounts payable to such Bank pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or other amount payable to such Bank hereunder and/or, upon giving not less than three Business Days’ notice to any such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of any such Bank; provided , further , that such Borrower shall not be obligated to pay any Bank any additional amount pursuant to this subsection 2.13(a) (A) which constitutes a present or future income, stamp or other tax, levy, impost, duty, charge, fee, deduction or withholding referred to in subsection 2.17(a) or (B) as a result of any law, rule, guideline, regulation, request or directive regarding capital adequacy referred to in subsection 2.13(b).  A certificate of such Bank as to the amount of such increased costs or reduction shall set forth in reasonable detail the computation of such increased costs or reduction, and shall be binding and conclusive in the absence of manifest error.  A Bank which demands indemnification hereunder as a result of an increased cost or reduction referred to herein shall deliver the certificate referred to above to the relevant Borrower demanding indemnification no later than the later of (y) the thirtieth day immediately following each payment or realization by such Bank of such increased cost or reduction (and such certificate shall certify that the amounts set forth therein were paid or realized within such thirty-day period) and (z) the thirtieth day immediately following such Bank’s knowledge of the incurrence or realization by such Bank of such increased cost or reduction (and such certificate shall so certify).

 

(b)                                  In the event that any Bank shall have determined that the adoption after the date hereof of any law, rule, guideline or regulation regarding capital adequacy, or any change after the date hereof in any existing or future law, rule, guideline or regulation regarding capital adequacy (excluding, however, the phasing-in of any existing law, rule, regulation or guideline regarding capital adequacy) or in the interpretation or application thereof or compliance by such Bank or any corporation controlling such Bank with any request or directive made or adopted after the date hereof regarding capital adequacy (whether or not having the force of law) from any central bank or Governmental Authority, does or shall have the effect of

 

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reducing the rate of return on such Bank’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Bank or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Bank’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Bank to be material, then from time to time, within 30 days after receipt (whenever occurring) of a certificate from such Bank (which shall be executed by an officer thereof and a copy of which shall be delivered to the Administrative Agent), the Borrowers jointly and severally agree to pay to such Bank such additional amounts as are stated therein to be required to compensate it for such reduction; provided , however , that if such Borrower becomes obligated to pay any Bank any additional amount pursuant to this subsection 2.13(b), such Borrower shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving notice to the Administrative Agent and such Bank in accordance with subsection 2.6, to prepay in full the Loans of such Bank, together with accrued interest thereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or other amounts payable to it hereunder and/or, upon giving not less than three Business Days’ notice to any such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of any such Bank.  A certificate of such Bank as to the amount of such reduction shall set forth in reasonable detail the computation of such reduction, and shall be binding and conclusive in the absence of manifest error.  A Bank which demands indemnification hereunder as a result of a reduction referred to herein shall deliver the certificate referred to above to the relevant Borrower demanding indemnification no later than the later of (i) the thirtieth day immediately following each realization by such Bank of such reduction (and such certificate shall certify that the amounts set forth therein were realized within such thirty-day period) and (ii) the thirtieth day immediately following such Bank’s knowledge of the realization by such Bank of such reduction (and such certificate shall so certify).

 

(c)                                   Each Borrower shall pay to each Bank that delivers a certificate to such Borrower in accordance with the second and third following sentences such amounts as shall be necessary to reimburse such Bank for the costs (determined in accordance with the immediately following sentence), if any, incurred by such Bank, as a result of the application to such Bank during any period on which there are outstanding Eurodollar Loans advanced by such Bank to such Borrower of basic, supplemental, marginal and emergency reserves under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D of such Board) maintained by a member bank of such System (any such reserves dealing with reserve requirements prescribed for eurocurrency funding being referred to as “ Reserves ”), such amount to be set forth in a certificate of such Bank delivered to the relevant Borrower; provided , however , that if a Bank gives to a Borrower the written notice contemplated by the proviso set forth in the second following sentence, such Borrower shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving notice to the Administrative Agent and such Bank in accordance with subsection 2.6, to prepay in full the Loans of such Bank, together with accrued interest thereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or other amounts payable to it hereunder and/or upon giving not less than three Working Days’ notice to such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of any such Bank.  Amounts certified by a Bank hereunder for any period shall represent such Bank’s calculation or, if an accurate calculation is impracticable,

 

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reasonable estimate (using such reasonable means of allocation as such Bank shall determine) of the actual costs, if any, theretofore incurred by such Bank as a result of the application of Reserves to Eurocurrency liabilities (as referred to in Regulation D referred to above) of such Bank in an amount equal to such Bank’s Eurodollar Loans during such period and in any event shall not exceed the amount obtainable utilizing the maximum Reserves prescribed by the Board or other Governmental Authority having jurisdiction with respect thereto for such period.  Such payment shall be made within fifteen days after receipt by the relevant Borrower of a certificate, signed by an officer of the Bank delivering such certificate, which certificate shall be binding and conclusive in the absence of demonstrable error, specifying the period (prior to the date of such certificate) during which the cost set forth therein was incurred by such Bank and stating (i) that such amount represents the actual cost, or, if an accurate calculation of such cost is impracticable stating that such amount represents such Bank’s reasonable estimate of the actual cost, incurred by such Bank during such period as a result of the application of Reserves to Eurocurrency liabilities of such Bank in an amount equal to such Bank’s Eurodollar Loans during such period and specified in such certificate and (ii) that the amount set forth therein does not in any event exceed the amount obtainable utilizing the maximum Reserves prescribed for such period by the Board or such other Governmental Authority having jurisdiction with respect thereto; provided that the obligation of the Borrowers to pay any amounts pursuant to this subsection 2.13(c) shall apply only in the case of those Banks that give to the relevant Borrower and the Administrative Agent, no later than 3:00 P.M. (New York City time) on the day that is two Working Days prior to the applicable Borrowing Date therefor, a written notice stating that such Bank intends to demand reimbursement pursuant hereto.  A Bank which demands reimbursement of Reserve costs hereunder on account of a Eurodollar Loan made by such Bank shall deliver the certificate referred to in the preceding sentence to the relevant Borrower setting forth the items specified in clauses (i) and (ii) of the preceding sentence no later than the thirtieth day immediately following the last day of the Interest Period applicable to such Eurodollar Loan.

 

(d)                                  The obligations of the parties under this subsection 2.13 shall survive termination of this Agreement and payment of the Loans.

 

2.14 .                         Indemnity .  Each Borrower agrees to indemnify each Bank and to hold each Bank harmless from any loss or expense which such Bank may sustain or incur as a consequence of (a) default by such Borrower in payment of the principal amount of or interest on any Loan by such Bank, including, but not limited to, any such loss or expense arising from interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain its Loans hereunder, (b) default by such Borrower in making a borrowing, conversion or continuance after such Borrower has given a notice in accordance with subsection 2.1, 2.2 or 2.9, (c) default by such Borrower in making any prepayment after such Borrower has given a notice in accordance with subsection 2.5 or 2.6 or (d) the making by such Borrower of a prepayment of a Committed Rate Loan (other than an ABR Loan), a Bid Loan or, to the extent agreed to by the relevant Borrower and the relevant Bank with respect to a Negotiated Rate Loan, a Negotiated Rate Loan on a day which is not the last day of an Interest Period with respect thereto (with respect to Committed Rate Loans) or the maturity date therefor (with respect to Bid Loans) or any agreed date (with respect to Negotiated Rate Loans), including, but not limited to, any such loss or expense arising from interest or fees payable by such Bank to lenders of funds obtained by it in order to maintain its Loans hereunder.  This covenant shall survive termination of this Agreement and payment of the outstanding Loans.  A certificate as to any amount payable

 

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pursuant to the foregoing shall be submitted by such Bank (and executed by an officer thereof) to the relevant Borrower, setting forth the computation of such amounts in reasonable detail, and shall be conclusive in the absence of manifest error.

 

2.15 .                         Non-Receipt of Funds by the Administrative Agent .  With respect to all Loans except Negotiated Rate Loans, unless the Administrative Agent shall have been notified by the relevant Borrower prior to the date on which any payment is due from it hereunder (which notice shall be effective upon receipt) that such Borrower does not intend to make such payment, the Administrative Agent may assume that such Borrower has made such payment when due, and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to each Bank on such payment date an amount equal to the portion of such assumed payment to which such Bank is entitled hereunder, and if such Borrower has not in fact made such payment to the Administrative Agent, such Bank shall, on demand, repay to the Administrative Agent the amount made available to such Bank together with interest thereon in respect of each day during the period commencing on the date such amount was made available to such Bank and ending on (but excluding) the date such Bank repays such amount to the Administrative Agent, at a rate per annum equal to the Administrative Agent’s cost of obtaining overnight funds in the Federal Funds market in New York on each such day.  A certificate of the Administrative Agent submitted to the relevant Bank with respect to any amount owing under this subsection 2.15 shall be conclusive absent manifest error.

 

2.16.                         Extension of Termination Date .

 

(a)                         Not less than 60 days and not more than 90 days prior to the Termination Date then in effect, provided that no Event of Default shall have occurred and be continuing, the Borrowers may request an extension of such Termination Date by submitting to the Administrative Agent an Extension Request containing the information in respect of such extension specified in Exhibit I, which the Administrative Agent shall promptly furnish to each Bank.  Each Bank shall, not less than 30 days and not more than 60 days prior to the Termination Date then in effect, notify the Borrowers and the Administrative Agent of its election to extend or not extend the Termination Date as requested in such Extension Request.  Notwithstanding any provision of this Agreement to the contrary, any notice by any Bank of its willingness to extend the Termination Date shall be revocable by such Bank in its sole and absolute discretion at any time prior to the date which is 30 days prior to the Termination Date then in effect.  If any Bank shall fail to respond, such Bank shall be deemed to have elected not to extend.  If the Required Banks shall approve in writing the extension of the Termination Date requested in such Extension Request, the Termination Date shall automatically and without any further action by any Person be extended for the period specified in such Extension Request; provided that (i) each extension pursuant to this subsection 2.16 shall be for a maximum of 364 days and (ii) the Commitment of any Bank which does not consent in writing to such extension not less than 30 days and not more than 60 days prior to the Termination Date then in effect (an “ Objecting Bank ”) shall, unless earlier terminated in accordance with this Agreement, expire on the Termination Date in effect on the date of such Extension Request (such Termination Date, if any, referred to as the “ Commitment Expiration Date ” with respect to such Objecting Bank).  If, not less than 30 days and not more than 60 days prior to the Termination Date then in effect, the Required Banks shall not approve in writing the extension of the Termination Date requested in an Extension Request, the Termination Date shall not be extended pursuant to such Extension

 

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Request.  The Administrative Agent shall promptly notify (y) the Banks and the Borrowers of any extension of the Termination Date pursuant to this subsection 2.16 and (z) the Borrowers and any other Bank of any Bank which becomes an Objecting Bank.

 

(b)                                  Committed Rate Loans owing to any Objecting Bank on the Commitment Expiration Date with respect to such Bank shall be repaid in full on or before the date which is one year after such Commitment Expiration Date.

 

(c)                                   The Borrowers shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving notice to the Administrative Agent and the Objecting Banks in accordance with subsection 2.6, to prepay in full the Committed Rate Loans of the Objecting Banks, together with accrued interest thereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or other amounts payable to it hereunder and/or, upon giving not less than three Working Days’ notice to the Objecting Banks and the Administrative Agent, to cancel the whole or part of the Commitments of the Objecting Banks.

 

2.17 .                         Foreign Taxes .  (a)  All payments made under this Agreement shall be made without set-off, counterclaim, restriction or condition and free and clear of, and without reduction for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions, or withholdings of any nature whatsoever, now or hereafter imposed, levied, collected, withheld or assessed by the United States (or by any political subdivision or taxing authority thereof or therein) with respect to any amount that is paid under this Agreement excluding, in the case of each Bank, (i) income and franchise taxes (including, without limitation, branch taxes imposed by the United States or similar taxes imposed by a political subdivision or taxing authority thereof or therein but excluding for the purposes of this clause (i), in the case of any Bank not organized under the laws of the United States, any such taxes imposed by the United States by means of withholding at the source), (ii) in the case of any Bank not organized under the laws of the United States, a state thereof or the District of Columbia, any taxes imposed by the United States by means of withholding at the source unless such Bank has provided the Company, the Capital Corporation and the Administrative Agent with the documents it is required to provide to them under subsection 2.17(c) and (iii) taxes that would not have been imposed on such Bank but for the existence of a connection between such Bank and the jurisdiction imposing such taxes (other than a connection arising principally by virtue of this Agreement) (such non-excluded taxes being called “Foreign Taxes”).  If any Foreign Taxes are required to be withheld from any amounts so payable to any Bank hereunder, the amounts so payable to such Bank shall be increased to the extent necessary to yield to such Bank (after payment of all Foreign Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement.  Whenever any Foreign Taxes are payable by the Company or the Capital Corporation, as the case may be, as promptly as possible thereafter the Company or the Capital Corporation, as the case may be, shall send to the Administrative Agent, for the account of the affected Bank, a certified copy of the original official receipt, if any, received by the Company or the Capital Corporation, as the case may be, showing payment thereof.  If the Company or the Capital Corporation, as the case may be, fails to pay any Foreign Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent, for the account of the affected Banks, the required receipts or other required documentary evidence, the Company or the Capital Corporation, as the case may

 

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be, shall indemnify such Banks for any incremental taxes, interest or penalties that may become payable by such Banks as a result of any such failure.

 

(b)                                  If a Borrower is required by this subsection 2.17 to make a payment to or in respect of any Bank, such Borrower shall have the right, so long as no Event of Default has occurred and is then continuing, upon giving notice to the Administrative Agent and such Bank in accordance with subsection 2.6, to prepay in full the Loans of such Bank, together with accrued interest thereon, any amounts payable pursuant to subsections 2.13, 2.14, 2.15 and 2.17 and any accrued and unpaid facility fee or other amounts payable to it hereunder and/or on giving not less than three Business Days’ notice to any such Bank and the Administrative Agent, to cancel the whole or part of the Commitment of such Bank (but only if after giving effect to such cancellation or prepayment the aggregate principal amount of the Loans does not exceed the aggregate Commitments then in effect).

 

(c)                                   At least two Business Days prior to the first Borrowing Date or, if such date does not occur within thirty days after the Closing Date, by the end of such thirty-day period, each Bank agrees that it will deliver to each Borrower and the Administrative Agent either (A) a statement that it is incorporated under the laws of the United States, a state thereof or the District of Columbia, (B) if it is not so incorporated, a letter in duplicate in substantially the form of Exhibit J or Exhibit K, as appropriate, and two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case may be, certifying in each case that such Bank is entitled to receive payment under this Agreement without deduction or withholding of any United States Federal income taxes, or (C) in the case of a Bank claiming exception under Sections 871(h) or 881(c) of the Code, a Certificate of Non-Bank Status together with two original copies of Internal Revenue Service Form W-8BEN, or successor applicable form, as the case may be, to establish an exemption from United States backup withholding tax.  Each Bank (including, without limitation, each Loan Assignee) agrees (for the benefit of the Administrative Agent and the Borrowers), to the extent it may lawfully do so, to provide the Administrative Agent and the Borrowers a new letter or a new Certificate of Non-Bank Status, if applicable, and Form W-8BEN or W-8ECI, or successor applicable form or other manner of certification, (x) in the case of a Loan Assignee, on or before the date it becomes  party to this Agreement, (y) on or before the date that any such letter or form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent letter or form previously delivered by it, certifying in the case of a Form W-8BEN or W-8ECI that such Bank is entitled to receive payments under this Agreement without deduction or withholding of any United States Federal income tax, and in the case of a Form W-8BEN establishing exemption from United States backup withholding tax, and (z) promptly after the date of the Company, the Capital Corporation or the Administrative Agent reasonably requests any form or document referred to in this subsection 2.17(c); provided , however , that if a Bank is unable to provide a letter, form, certificate, successor or other document described in this sentence by reason of a change in the applicable law occurring after the date on which such letter, form, certificate, successor or other document originally was required to be provided by such Bank, then such Bank shall be required to comply with this sentence to the extent permitted under such applicable law, and the letter, form, certificate, successor or other document provided in accordance with this proviso (if any) shall certify that such Bank is entitled to receive payments under this Agreement at the lowest rate of deduction, withholding or backup withholding to which it is entitled under such applicable law.  The Administrative Agent shall

 

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not be responsible for obtaining such documentation from any Bank other than JPMorgan Chase Bank, N.A.

 

(d)                                  To the extent that, as determined by any Bank in its sole discretion and without any obligation to disclose its tax records, Foreign Taxes have been irrevocably utilized by such Bank (either as credits or deductions) to reduce its tax liabilities and such utilization is consistent with its overall tax policies, such Bank shall pay to the Company or the Capital Corporation, as the case may be, an amount equal to such reduction obtained to the extent of such increased amounts paid by the Company or the Capital Corporation to such Bank as aforesaid.

 

(e)                                   The obligations of the parties under this subsection 2.17 shall survive termination of this Agreement and payment of the Loans.

 

2.18.                         Confirmations .  The Administrative Agent shall, within 15 days following the last day of each calendar quarter (each such period being a “ Report Period ”), furnish to the Borrowers a written account with respect to all amounts outstanding under the Loan Accounts as at the last day of such Report Period, including an accounting setting forth, for such Report Period the amounts of principal, interest and other sums paid and payable hereunder.  The Borrowers shall, within 15 days following receipt of such written account, notify the Administrative Agent of any discrepancies between such written account and the Borrowers’ records or, if no such discrepancies exist, furnish written confirmation to the Administrative Agent of the accuracy of such written account.  Upon any Bank’s request, the Administrative Agent shall furnish to each Bank a copy of such written account together with the Borrowers’ response thereto.

 

2.19 .                         Replacement of Cancelled Banks .  The Borrowers may designate one or more financial institutions to act as a Bank hereunder in place of any Cancelled Bank, and upon the Borrowers, each such financial institution and the Administrative Agent executing a writing substantially in the form of Exhibit L, such financial institution shall become and be a Bank hereunder with all the rights and obligations it would have had if it had been named on the signature pages hereof, and having for all such financial institutions an aggregate Commitment no greater than the whole, or such cancelled part, of the Commitment of the Cancelled Bank in place of which such financial institutions were designated; provided , however , that all rights and obligations of such Cancelled Bank relating to the Loans made by such Cancelled Bank that are outstanding on the date of such cancellation shall be the rights and obligations of such Cancelled Bank and not of any such financial institution.  The Administrative Agent shall execute any such writing presented to it and shall notify the Banks of the execution thereof, the name of the financial institution executing such writing and the amount of its Commitment.

 

2.20.                         Commitment Increases .  (a)  At any time after the Closing Date and prior to the Commitment Expiration Date of any Bank, provided that no Event of Default shall have occurred and be continuing, the Borrowers may request an increase of the aggregate Commitments by notice to the Administrative Agent in writing of the amount (the “ Offered Increase Amount ”) of such proposed increase (such notice, a “ Commitment Increase Notice ”).  Any such Commitment Increase Notice must offer each Bank the opportunity to subscribe for its pro rata share of the increased Commitments; provided , however , the Borrowers may, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or

 

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delayed), without offering to each Bank the opportunity to subscribe for its pro rata share of the increased Commitments, offer to any bank or other financial institution that is not an existing Bank the opportunity to provide a new Commitment pursuant to paragraph (b) below if the aggregate amount of all Commitments made hereunder pursuant to this proviso which will be in effect when such new Commitment becomes effective does not exceed $250,000,000 subject to subsection 2.20(f).  If any portion of the increased Commitments offered to the Banks as contemplated in the immediately preceding sentence is not subscribed for by the Banks, the Borrowers may, with the consent of the Administrative Agent as to any bank or financial institution that is not at such time a Bank (which consent shall not be unreasonably withheld or delayed), offer to any existing Bank or to one or more additional banks or financial institutions the opportunity to provide all or a portion of such unsubscribed portion of the increased Commitments pursuant to paragraph (b) below.

 

(b)                                  Any additional bank or financial institution that the Borrowers select to offer the opportunity to provide any portion of the increased Commitments, and that elects to become a party to this Agreement and provide a Commitment, shall execute a New Bank Supplement with the Borrowers and the Administrative Agent, substantially in the form of Exhibit N (a “ New Bank Supplement ”), whereupon such bank or financial institution (a “ New Bank ”) shall become a Bank for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, and Schedule II shall be deemed to be amended to add the name and Commitment of such New Bank, provided that the Commitment of any such New Bank shall be in an amount not less than $10,000,000.

 

(c)                                   Any Bank that accepts an offer to it by the Borrowers to increase its Commitment pursuant to this subsection 2.20 shall, in each case, execute a Commitment Increase Supplement with the Borrowers and the Administrative Agent, substantially in the form of Exhibit O (a “ Commitment Increase Supplement ”), whereupon such Bank (an “ Increasing Bank ”) shall be bound by and entitled to the benefits of this Agreement with respect to the full amount of its Commitment as so increased, and Schedule II shall be deemed to be amended to so increase the Commitment of such Bank.

 

(d)                                  The effectiveness of any New Bank Supplement or Commitment Increase Supplement shall be contingent upon receipt by the Administrative Agent of such corporate resolutions of the Borrowers and legal opinions of counsel to the Borrowers as the Administrative Agent shall reasonably request with respect thereto.

 

(e)                                   (i)  Except as otherwise provided in subparagraphs (ii) and (iii) of this paragraph (e), if any bank or financial institution becomes a New Bank pursuant to subsection 2.20(b) or any Bank’s Commitment is increased pursuant to subsection 2.20(c), additional Committed Rate Loans made on or after the date of the effectiveness thereof (the “ Re-Allocation Date ”) shall be made in accordance with the pro rata provisions of subsection 2.12(b) based on the Commitment Percentages in effect on and after such Re-Allocation Date (except to the extent that any such pro rata borrowings would result in any Bank making an aggregate principal amount of Committed Rate Loans in excess of its Commitment, in which case such excess amount will be allocated to, and made by, the relevant New Banks and Increasing Banks to the extent of, and in accordance with the pro rata provisions of subsection 2.12(b) based on, their respective Commitments).  On each Re-Allocation Date, the Administrative Agent shall deliver

 

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such amended Schedule II and a notice to each Bank of the adjusted Commitment Percentages after giving effect to any increase in the aggregate Commitments made pursuant to this subsection 2.20 on such Re-Allocation Date.

 

(ii)                                   In the event that on any such Re-Allocation Date there is an unpaid principal amount of ABR Loans, the applicable Borrower shall make prepayments thereof and one or both Borrowers shall make borrowings of ABR Loans and/or Eurodollar Loans, as the applicable Borrower shall determine, so that, after giving effect thereto, the ABR Loans and Eurodollar Loans outstanding are held as nearly as may be in accordance with the pro rata provisions of subsection 2.12(b) based on such new Commitment Percentages.

 

(iii)                                In the event that on any such Re-Allocation Date there is an unpaid principal amount of Eurodollar Loans, such Eurodollar Loans shall remain outstanding with the respective holders thereof until the expiration of their respective Interest Periods (unless the applicable Borrower elects to prepay any thereof in accordance with the applicable provisions of this Agreement), and on the last day of the respective Interest Periods the applicable Borrower shall make prepayments thereof and one or both Borrowers shall make borrowings of ABR Loans and/or Euro