<Page>
Exhibit 10.1
EXECUTION COPY
364 DAY CREDIT AGREEMENT
by
and among
CVS CORPORATION,
THE LENDERS PARTY HERETO,
BANK OF AMERICA, N.A., CREDIT SUISSE FIRST BOSTON, and
WACHOVIA SECURITIES, INC.,
as Co-Syndication Agents,
SUNTRUST BANK,
as Documentation Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent
-----------------------------
Dated as of June 11, 2004
-----------------------------
BNY CAPITAL MARKETS, INC.
as Lead Arranger and Book Runner
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TABLE OF CONTENTS
<Table>
<S>
<C>
1. DEFINITIONS AND PRINCIPLES
OF
CONSTRUCTION.....................................................1
1.1
Definitions............................................................................1
1.2 Principles of
Construction............................................................15
2. AMOUNT AND TERMS OF
LOANS.....................................................................16
2.1 Revolving Credit
Loans................................................................16
2.2 [Intentionally
Omitted]...............................................................16
2.3 Notice of
Borrowing Revolving Credit
Loans............................................16
2.4 Competitive Bid
Loans and
Procedure...................................................17
2.5 Use of
Proceeds.......................................................................19
2.6 Termination or
Reduction of
Commitments...............................................19
2.7 Prepayments of
Loans..................................................................20
2.8 [Intentionally
Omitted]...............................................................20
2.9 [Intentionally
Omitted]...............................................................20
2.10
[Intentionally
Omitted]...............................................................20
2.11
Notes.................................................................................20
3. PROCEEDS, PAYMENTS,
CONVERSIONS, INTEREST, YIELD PROTECTION AND
FEES..........................21
3.1 Disbursement of
the Proceeds of the
Loans.............................................21
3.2
Payments..............................................................................21
3.3 Conversions;
Other
Matters............................................................22
3.4 Interest Rates
and Payment
Dates......................................................23
3.5 Indemnification
for
Loss..............................................................25
3.6 Reimbursement
for Costs,
Etc..........................................................25
3.7 Illegality of
Funding.................................................................26
3.8 Option to Fund;
Substituted Interest
Rate.............................................27
3.9 Certificates of
Payment and
Reimbursement.............................................28
3.10
Taxes; Net
Payments...................................................................28
3.11
Fees..................................................................................29
3.12
Replacement of
Lender.................................................................30
4. REPRESENTATIONS AND
WARRANTIES................................................................30
4.1 Existence and
Power...................................................................30
4.2
Authority.............................................................................31
4.3 Binding
Agreement.....................................................................31
4.4
Litigation............................................................................31
4.5 No Conflicting
Agreements.............................................................31
4.6
Taxes.................................................................................32
4.7 Compliance with
Applicable Laws;
Filings..............................................32
</Table>
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<Table>
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<C>
4.8 Governmental
Regulations..............................................................32
4.9 Federal Reserve
Regulations; Use of
Proceeds..........................................32
4.10
No
Misrepresentation..................................................................33
4.11
Plans.................................................................................33
4.12
Environmental
Matters.................................................................34
4.13
Financial
Statements..................................................................34
5. CONDITIONS OF LENDING -
FIRST LOANS ON THE FIRST BORROWING
DATE...............................35
5.1 Evidence of
Corporate
Action..........................................................35
5.2
Notes.................................................................................35
5.3 Opinion of
Counsel to the
Borrower....................................................35
6. CONDITIONS OF LENDING - ALL
LOANS.............................................................35
6.1
Compliance............................................................................35
6.2
Requests..............................................................................36
6.3 Loan
Closings.........................................................................36
7. AFFIRMATIVE
COVENANTS.........................................................................36
7.1 Legal
Existence.......................................................................36
7.2
Taxes.................................................................................36
7.3
Insurance.............................................................................36
7.4 Performance of
Obligations............................................................36
7.5 Condition of
Property.................................................................37
7.6 Observance of
Legal
Requirements......................................................37
7.7 Financial
Statements and Other
Information............................................37
7.8
Records...............................................................................39
7.9
Authorizations........................................................................39
7.10
Existing
Five Year Credit
Agreement...................................................39
8. NEGATIVE
COVENANTS............................................................................39
8.1 Subsidiary
Indebtedness...............................................................39
8.2
Liens.................................................................................39
8.3
Dispositions..........................................................................40
8.4 Merger or
Consolidation,
Etc..........................................................40
8.5
Acquisitions..........................................................................41
8.6 Restricted
Payments...................................................................41
8.7 Limitation on
Upstream Dividends by
Subsidiaries......................................41
8.8 Limitation on
Negative
Pledges........................................................42
8.9 Ratio of
Consolidated Indebtedness to Total
Capitalization............................42
9.
DEFAULT.......................................................................................42
</Table>
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<S>
<C>
9.1 Events of
Default.....................................................................42
9.2
Remedies..............................................................................44
10.
AGENT.........................................................................................45
10.1
Appointment...........................................................................45
10.2
Delegation
of
Duties..................................................................45
10.3 Exculpatory
Provisions................................................................46
10.4
Reliance
by Administrative
Agent......................................................46
10.5
Notice of
Default.....................................................................47
10.6
Non-Reliance..........................................................................47
10.7
[Intentionally
Omitted]...............................................................48
10.8 Administrative Agent
in Its Individual
Capacity.......................................48
10.9
Successor
Administrative
Agent........................................................48
10.10
Co-Syndication
Agents and Documentation
Agent.........................................48
11. OTHER
PROVISIONS..............................................................................49
11.1
Amendments, Waivers,
Etc..............................................................49
11.2
Notices...............................................................................49
11.3
No Waiver;
Cumulative
Remedies........................................................51
11.4
Survival
of Representations and
Warranties............................................51
11.5
Payment of
Expenses and Taxes; Indemnified
Liabilities................................51
11.6
Lending
Offices.......................................................................52
11.7
Successors
and
Assigns................................................................52
11.8
Counterparts..........................................................................55
11.9
Set-off
and Sharing of
Payments.......................................................55
11.10
Indemnity.............................................................................56
11.11
Governing
Law.........................................................................57
11.12
Severability..........................................................................57
11.13
Integration...........................................................................57
11.14
Treatment of
Certain
Information......................................................58
11.15
Acknowledgments.......................................................................59
11.16
Consent to
Jurisdiction...............................................................59
11.17
Service of
Process....................................................................59
11.18
No Limitation on
Service or
Suit......................................................59
11.19
WAIVER OF TRIAL
BY
JURY...............................................................59
11.20
Effective
Date........................................................................60
</Table>
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EXHIBITS
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<C>
Exhibit
A
List of Commitments
Exhibit
B
Form of Note
Exhibit
C
Form of Borrowing Request
Exhibit
D-1
Form of Opinion of Counsel to the Borrower
Exhibit
D-2
Form of Opinion of Special Counsel to the Borrower
Exhibit
E
Form of Assignment and Acceptance Agreement
Exhibit
F
Form of Competitive Bid Request
Exhibit
G
Form of Invitation to Bid
Exhibit
H
Form of Competitive Bid
Exhibit
I
Form of Competitive Bid Accept/Reject Letter
</Table>
v
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364 DAY CREDIT AGREEMENT, dated as of June 11, 2004, by and
among
CVS CORPORATION, a Delaware corporation
(the "BORROWER"), the Lenders party
hereto from time to time (each a "LENDER"
and, collectively, the "LENDERS"),
BANK OF AMERICA, N.A., CREDIT SUISSE FIRST
BOSTON, and WACHOVIA SECURITIES,
INC., as co-syndication agents (in such
capacity, each a "CO-SYNDICATION
AGENT"), SUNTRUST BANK, as documentation
agent (in such capacity, a
"DOCUMENTATION AGENT"), and THE BANK OF NEW
YORK ("BNY"), as administrative
agent for the Lenders (in such capacity,
the "ADMINISTRATIVE AGENT").
1. DEFINITIONS AND
PRINCIPLES OF CONSTRUCTION
1.1
Definitions
When used in any Loan Document (as defined below), each of the
following terms shall have the meaning
ascribed thereto unless the context
otherwise specifically requires:
"ABR
ADVANCES": the Revolving Credit Loans (or any portions thereof)
at
such time as they (or such portions) are
made or are being maintained at a rate
of interest based upon the Alternate Base
Rate.
"ACCUMULATED FUNDING DEFICIENCY":
as defined in Section 302 of ERISA.
"ACQUISITION": with respect to any Person, the purchase or
other
acquisition by such Person, by any means
whatsoever (including by devise,
bequest, gift, through a dividend or
otherwise), of (a) stock of, or other
equity securities of, any other Person if,
immediately thereafter, such other
Person would be either a consolidated
subsidiary of such Person or otherwise
under the control of such Person, (b) any
business, going concern or division or
segment thereof, or (c) the Property of any
other Person other than in the
ordinary course of business, PROVIDED that
(i) no acquisition of substantially
all of the assets, or any division or
segment, of such other Person shall be
deemed to be in the ordinary course of
business and (ii) no redemption,
retirement, purchase or acquisition by any
Person of the stock or other equity
securities of such Person shall be deemed
to constitute an Acquisition.
"ADMINISTRATIVE AGENT": as defined in the preamble.
"ADMINISTRATIVE QUESTIONNAIRE": an Administrative Questionnaire in
a form
supplied by the Administrative Agent.
"AFFECTED
ADVANCE": as defined in Section 3.8(b).
"AFFILIATE": with respect to any Person at any time and from time
to time,
any other Person (other than a wholly-owned
subsidiary of such Person) which, at
such time (a) controls such Person, (b) is
controlled by such Person or (c) is
under common control with such Person. The
term "control", as used in this
definition with respect to any Person,
means the power, whether direct or
indirect through one or more
intermediaries, to direct or cause the direction of
the management and policies of such Person,
whether through the ownership of
voting securities or other interests, by
contract or otherwise.
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"AGGREGATE
COMMITMENT AMOUNT": at any time, the sum of the Commitment
Amounts of the Lenders at such time under
this Agreement.
"AGGREGATE
CREDIT EXPOSURE": at any time, the sum at such time of (a) the
aggregate Committed Credit Exposure of the
Lenders at such time under this
Agreement and (b) the aggregate outstanding
principal balance of all Competitive
Bid Loans at such time under this
Agreement.
"AGREEMENT": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from
time to time.
"ALTERNATE
BASE RATE": for any day, a rate per annum equal to the greater
of (a) the BNY Rate in effect on such day,
or (b) 0.50% plus the Federal Funds
Effective Rate (rounded, if necessary, to
the nearest l/100th of 1% or, if there
is no nearest 1/100 of 1%, then to the next
higher 1/100 of 1%) in effect on
such day.
"APPLICABLE MARGIN": (i) with respect to the unpaid principal
balance of
ABR Advances, the applicable percentage set
forth below in the column entitled
"ABR Advances", (ii) with respect to the
unpaid principal balance of Eurodollar
Advances, the applicable percentage set
forth below in the column entitled
"Eurodollar Advances", (iii) with respect
to the Facility Fee, the applicable
percentage set forth below in the column
entitled "Facility Fee", and (iv) with
respect to the Utilization Fee, the
applicable percentage set forth below in the
column entitled "Utilization Fee", in each
case opposite the applicable Pricing
Level:
<Table>
<Caption>
ABR
EURODOLLAR
FACILITY
UTILIZATION
PRICING LEVEL
ADVANCES
ADVANCES
FEE
FEE
-------------------------- -------------- ----------------
---------------
----------------
<S>
<C>
<C>
<C>
<C>
Pricing Level I
0%
0.155%
0.045%
0.050%
Pricing Level II
0%
0.195%
0.055%
0.050%
Pricing Level III
0%
0.235%
0.065%
0.050%
Pricing Level IV
0%
0.300%
0.075%
0.050%
Pricing Level V
0%
0.350%
0.100%
0.100%
Pricing Level VI
0%
0.425%
0.125%
0.100%
Pricing Level VII
0%
0.500%
0.150%
0.100%
</Table>
Decreases in the Applicable Margin
resulting from a change in Pricing Level
shall become effective upon the delivery by
the Borrower to the Administrative
Agent of a notice pursuant to Section
7.7(d). Increases in the Applicable Margin
resulting from a change in Pricing Level
shall
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become effective on the effective date of
any downgrade or withdrawal in the
rating by Moody's or S&P of the senior
unsecured long term debt rating of the
Borrower.
"APPROVED
FUND": with respect to any Lender that is a fund that invests
in
commercial loans, any other fund that
invests in commercial loans and is managed
or advised by the same investment advisor
as such Lender or by an Affiliate of
such investment advisor.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT": an assignment and
acceptance
agreement executed by an assignor and an
assignee pursuant to which, subject to
the terms and conditions hereof and
thereof, the assignor assigns to the
assignee all or any portion of such
assignor's Loans, Notes and Commitment,
substantially in the form of Exhibit E.
"BENEFITED
LENDER": as defined in Section 11.9(b).
"BNY": as
defined in the preamble.
"BNY
RATE": a rate of interest per annum equal to the rate of
interest
publicly announced in New York City by BNY
from time to time as its prime
commercial lending rate, such rate to be
adjusted automatically (without notice)
on the effective date of any change in such
publicly announced rate.
"BORROWER": as defined in the preamble.
"BORROWING
DATE": (i) in respect of Revolving Credit Loans, any Domestic
Business Day or Eurodollar Business Day, as
the case may be, on which the
Lenders shall make Revolving Credit Loans
pursuant to a Borrowing Request and
(ii) in respect of Competitive Bid Loans,
any Domestic Business Day on which a
Lender shall make a Competitive Bid Loan
pursuant to a Competitive Bid Request.
"BORROWING
REQUEST": a request for Revolving Credit Loans in the form of
Exhibit C.
"BRIDGE
FACILITY CREDIT AGREEMENT": the Bridge Facility Credit
Agreement,
dated as of June 11, 2004, by and among the
Borrower, the lenders party thereto,
Bank of America, N.A., Credit Suisse First
Boston, and Wachovia Securities,
Inc., as co-syndication agents, and BNY, as
administrative agent, as the same
may be amended, supplemented or otherwise
modified from time to time.
"CHANGE OF
CONTROL": any of the following:
(i)
any Person or
group (as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as
amended), (a) shall have or acquire
beneficial ownership of securities having
30% or more of the ordinary voting
power of the Borrower or (b) shall possess,
directly or indirectly, the power to
direct or cause the direction of the
management and policies of the Borrower,
whether through the ownership of voting
securities, by contract or otherwise; or
(ii)
the Continuing
Directors shall cease for any reason to constitute a
majority of the board of directors of the
Borrower then in office.
3
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"COMMITMENT": in respect of any Lender, such Lender's undertaking
to make
Revolving Credit Loans, subject to the
terms and conditions hereof, in an
aggregate outstanding principal amount not
to exceed the Commitment Amount of
such Lender.
"COMMITMENT AMOUNT": at any time and with respect to any Lender,
the
amount set forth adjacent to such Lender's
name under the heading "Commitment
Amount" in Exhibit A at such time or, in
the event that such Lender is not
listed on Exhibit A, the "Commitment
Amount" which such Lender shall have
assumed from another Lender in accordance
with Section 11.7 on or prior to such
time, as the same may be adjusted from time
to time pursuant to Sections 2.6 and
11.7(c).
"COMMITMENT PERCENTAGE": at any time and with respect to any
Lender, a
fraction the numerator of which is such
Lender's Commitment Amount at such time,
and the denominator of which is the
Aggregate Commitment Amount at such time.
"COMMITMENT PERIOD": the period commencing on the Effective Date
and
ending on the Commitment Termination Date,
or on such earlier date as all of the
Commitments shall have been terminated in
accordance with the terms hereof.
"COMMITMENT TERMINATION DATE": the earlier of June 10, 2005 and the
date
on which the Loans shall become due and
payable, whether by acceleration, notice
of intention to prepay or otherwise.
"COMMITTED
CREDIT EXPOSURE": with respect to any Lender at any time, the
sum at such time of the outstanding
principal balance of such Lender's Revolving
Credit Loans.
"COMPENSATORY INTEREST PAYMENT": as defined in Section 3.4(c).
"COMPETITIVE BID": an offer by a Lender, in the form of Exhibit H,
to make
one or more Competitive Bid Loans.
"COMPETITIVE BID ACCEPT/REJECT LETTER": a notification made by
the
Borrower pursuant to Section 2.4(d) in the
form of Exhibit I.
"COMPETITIVE BID LOAN": as defined in Section 2.4(a).
"COMPETITIVE BID RATE": as to any Competitive Bid made by a
Lender
pursuant to Section 2.4(b), the fixed rate
of interest (which shall be expressed
in the form of a decimal to no more than
four decimal places) offered by such
Lender and accepted by the Borrower.
"COMPETITIVE BID REQUEST": a request by the Borrower, in the form
of
Exhibit F, for Competitive Bids.
"COMPETITIVE INTEREST PERIOD": as to any Competitive Bid Loan, the
period
commencing on the date of such Competitive
Bid Loan and ending on the date
requested in the Competitive Bid Request
with respect thereto, which shall not
be earlier than 3 days after the date of
such Competitive Bid Loan or later than
180 days after the date of such Competitive
Bid Loan, PROVIDED that if any
Competitive Interest Period would end on a
day other than a Domestic Business
Day,
4
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such Interest Period shall be extended to
the next succeeding Domestic Business
Day, unless such next succeeding Domestic
Business Day would be a date on or
after the Commitment Termination Date, in
which case such Competitive Interest
Period shall end on the next preceding
Domestic Business Day. Interest shall
accrue from and including the first day of
a Competitive Interest Period to but
excluding the last day of such Competitive
Interest Period.
"CONSOLIDATED": the Borrower and the Subsidiaries on a consolidated
basis
in accordance with GAAP.
"CONTINGENT OBLIGATION": as to any Person (the "secondary
obligor"), any
obligation of such secondary obligor (a)
guaranteeing or in effect guaranteeing
any return on any investment made by
another Person, or (b) guaranteeing or in
effect guaranteeing any Indebtedness,
lease, dividend or other obligation
("primary obligation") of any other Person
(the "primary obligor") in any
manner, whether directly or indirectly,
including any obligation of such
secondary obligor, whether or not
contingent, (i) to purchase any such primary
obligation or any Property constituting
direct or indirect security therefor,
(ii) to advance or supply funds (A) for the
purchase or payment of any such
primary obligation or (B) to maintain
working capital or equity capital of the
primary obligor or otherwise to maintain
the net worth or solvency of the
primary obligor, (iii) to purchase
Property, securities or services primarily
for the purpose of assuring the beneficiary
of any such primary obligation of
the ability of the primary obligor to make
payment of such primary obligation,
(iv) otherwise to assure or hold harmless
the beneficiary of such primary
obligation against loss in respect thereof,
and (v) in respect of the
Indebtedness of any partnership in which
such secondary obligor is a general
partner, except to the extent that such
Indebtedness of such partnership is
nonrecourse to such secondary obligor and
its separate Property, PROVIDED that
the term "Contingent Obligation" shall not
include the indorsement of
instruments for deposit or collection in
the ordinary course of business.
"CONTINUING DIRECTOR": any member of the board of directors of
the
Borrower who (i) is a member of that board
of directors on the Effective Date or
(ii) was nominated for election by the
board of directors a majority of whom
were directors on the Effective Date or
whose election or nomination for
election was previously approved by one or
more of such directors.
"CONTROL
PERSON": as defined in Section 3.6.
"CONVERT",
"CONVERSION" and "CONVERTED": each, a reference to a conversion
pursuant to Section 3.3 of one Type of
Revolving Credit Loan into another Type
of Revolving Credit Loan.
"COSTS":
as defined in Section 3.6.
"CO-SYNDICATION AGENTS": as defined in the preamble.
"CREDIT
EXPOSURE": with respect to any Lender at any time, the sum at
such
time of (a) the Committed Credit Exposure
of such Lender at such time under this
Agreement and (b) the outstanding principal
balance of all Competitive Bid Loans
of such Lender at such time under this
Agreement.
5
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"CREDIT
PARTIES" means the Administrative Agent, the Co-Syndication
Agents, the Documentation Agent and the
Lenders.
"DEFAULT":
any of the events specified in Section 9.1, whether any
requirement for the giving of notice, the
lapse of time, or both, or any other
condition, has been satisfied.
"DISPOSITION": with respect to any Person, any sale, assignment,
transfer
or other disposition by such Person by any
means, of:
(a)
the Stock of, or
other equity interests of, any other Person,
(b)
any business,
operating entity, division or segment thereof, or
(c)
any other
Property of such Person, other than (i) the sale of
inventory (other than in connection with
bulk transfers), (ii) the disposition
of equipment and (iii) the sale of cash
investments.
"DIVIDEND
RESTRICTIONS": as defined in Section 8.7.
"Documentation Agent": as defined in the preamble.
"DOLLAR"
OR "$": lawful currency of the United States of America.
"DOMESTIC
BUSINESS DAY": any day (other than a Saturday, Sunday or legal
holiday in the State of New York) on which
banks are open for business in New
York City.
"ECKERD":
Eckerd Corporation, a Delaware corporation.
"ECKERD
ACQUISITION": the acquisition by the Borrower from Eckerd of
approximately 1260 drugstores located
mainly in the southern United States,
including Texas and Florida, as well as
Eckerd's mail order, specialty pharmacy
and pharmacy benefits management businesses
pursuant to the Eckerd Asset
Purchase Agreement.
"ECKERD
ASSET PURCHASE AGREEMENT": the Asset Purchase Agreement, dated
as
of April 4, 2004, between the Borrower, CVS
Pharmacy, Inc. and J.C. Penney
Company, Inc. and certain of its
subsidiaries, including Eckerd (as amended,
supplemented or otherwise modified from
time to time).
"EFFECTIVE
DATE": as defined in Section 11.20.
"ELIGIBLE
ASSIGNEE": (i) any commercial bank, investment bank, trust
company, banking association, financial
institution, mutual fund, pension fund
or any Approved Fund or (ii) any Lender or
any Affiliate or any Approved Fund of
such Lender.
"ELIGIBLE
SPC": a special purpose corporation that (i) is organized under
the laws of the United States or any state
thereof, (ii) is engaged in making,
purchasing or otherwise investing in
commercial loans in the ordinary course of
its business and (iii) issues (or the
parent of which issues) commercial paper
rated at least A-1 or the equivalent
thereof by S&P or at least P-1 or the
6
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equivalent thereof by Moody's.
"EMPLOYEE
BENEFIT PLAN": an employee benefit plan, within the meaning of
Section 3(3) of ERISA, maintained,
sponsored or contributed to by the Borrower,
any Subsidiary or any ERISA Affiliate.
"ENVIRONMENTAL LAWS": all laws, rules, regulations, codes,
ordinances,
orders, decrees, judgments, injunctions,
notices or binding agreements issued,
promulgated or entered into by any
Governmental Authority, relating in any way
to the environment, preservation or
reclamation of natural resources, the
management, release or threatened release
of any Hazardous Material or to health
and safety matters.
"ENVIRONMENTAL LIABILITY": as to any Person, any liability,
contingent or
otherwise (including any liability for
damages, costs of environmental
remediation, fines, penalties or
indemnities), of such Person directly or
indirectly resulting from or based upon (i)
violation of any Environmental Law,
(ii) the generation, use, handling,
transportation, storage, treatment or
disposal of any Hazardous Materials, (iii)
exposure to any Hazardous Materials,
(iv) the release or threatened release of
any Hazardous Materials into the
environment or (v) any contract, agreement
or other consensual arrangement
pursuant to which liability is assumed or
imposed with respect to any of the
foregoing.
"ERISA":
the Employee Retirement Income Security Act of 1974, as amended
from time to time, or any successor
thereto, and the rules and regulations
issued thereunder, as from time to time in
effect.
"ERISA
AFFILIATE": when used with respect to an Employee Benefit Plan,
ERISA, the PBGC or a provision of the
Internal Revenue Code pertaining to
employee benefit plans, any Person that is
a member of any group of
organizations within the meaning of
Sections 414(b) or (c) of the Internal
Revenue Code or, solely with respect to the
applicable provisions of the
Internal Revenue Code, Sections 414(m) or
(o) of the Internal Revenue Code, of
which the Borrower or any Subsidiary is a
member.
"ESOP
GUARANTY": the guaranty of the 8.52% ESOP Note maturing 2008 in
the
aggregate unpaid principal amount, as of
January 3, 2004, of $163,200,000.
"EURODOLLAR ADVANCE": a portion of the Revolving Credit Loans
selected by
the Borrower to bear interest during a
Eurodollar Interest Period selected by
the Borrower at a rate per annum based upon
a Eurodollar Rate determined with
reference to such Interest Period, all
pursuant to and in accordance with
Section 2.1 or 3.3.
"EURODOLLAR BUSINESS DAY": any Domestic Business Day, other than
a
Domestic Business Day on which banks are
not open for dealings in Dollar
deposits in the interbank eurodollar
market.
"EURODOLLAR INTEREST PERIOD": the period commencing on any
Eurodollar
Business Day selected by the Borrower in
accordance with Section 2.1 or Section
3.3 and ending one, two, three or six
months thereafter, as selected by the
Borrower in accordance with either such
Sections, subject to the following:
7
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(i) if any
Interest Period would otherwise end on a day which is not a
Eurodollar Business Day, such Interest
Period shall be extended to the
immediately succeeding Eurodollar Business
Day unless the result of such
extension would be to carry the end of such
Interest Period into another
calendar month, in which event such
Interest Period shall end on the Eurodollar
Business Day immediately preceding such
day; and
(ii) if
any Interest Period shall begin on the last Eurodollar Business
Day of a calendar month (or on a day for
which there is no numerically
corresponding day in the calendar month at
the end of such Interest Period),
such Interest Period shall end on the last
Eurodollar Business Day of such
latter calendar month.
"EURODOLLAR RATE": with respect to each Eurodollar Advance and
as
determined by the Administrative Agent, the
rate of interest per annum (rounded,
if necessary, to the nearest 1/100 of 1%
or, if there is no nearest 1/100 of 1%,
then to the next higher 1/100 of 1%) equal
to a fraction, the numerator of which
is the rate per annum quoted by BNY at
approximately 11:00 A.M. (or as soon
thereafter as practicable) two Eurodollar
Business Days prior to the first day
of such Interest Period to leading banks in
the interbank eurodollar market as
the rate at which BNY is offering Dollar
deposits in an amount approximately
equal to its Commitment Percentage of such
Eurodollar Advance and having a
period to maturity approximately equal to
the Interest Period applicable to such
Eurodollar Advance, and the denominator of
which is an amount equal to 1.00
MINUS the aggregate of the then stated
maximum rates during such Interest Period
of all reserve requirements (including
marginal, emergency, supplemental and
special reserves), expressed as a decimal,
established by the Board of Governors
of the Federal Reserve System and any other
banking authority to which BNY and
other major United States money center
banks are subject, in respect of
eurocurrency liabilities.
"EVENT OF
DEFAULT": any of the events specified in Section 9.1, PROVIDED
that any requirement for the giving of
notice, the lapse of time, or both, or
any other condition has been satisfied.
"EXPIRATION DATE": the first date, occurring after the Commitments
shall
have terminated or been terminated in
accordance herewith, upon which there
shall be no Loans outstanding.
"EXISTING
FIVE YEAR BANK INDEBTEDNESS": all Indebtedness under the
Existing Five Year Credit Agreement and all
accrued and unpaid monetary
obligations of the Borrower under the
Existing Five Year Credit Agreement.
"EXISTING
FIVE YEAR CREDIT AGREEMENT": the Five Year Credit Agreement,
dated as of May 21, 2001, by and among the
Borrower, the lenders party thereto,
Credit Suisse First Boston and First Union
National Bank, as co-documentation
agents, and BNY, as administrative agent
thereunder, as amended.
"FACILITY
FEE": as defined in Section 3.11(a).
"FEDERAL
FUNDS EFFECTIVE RATE": for any period, a fluctuating interest
rate per annum equal for each day during
such period to the weighted average of
the rates on overnight Federal funds
8
<Page>
transactions with members of the Federal
Reserve System arranged by Federal
funds brokers, as published for such day
(or, if such day is not a Domestic
Business Day, for the next preceding
Domestic Business Day) by the Federal
Reserve Bank of New York, or, if such rate
is not so published for any day which
is a Domestic Business Day, the average
(rounded, if necessary, to the nearest
1/100 of 1% or, if there is no nearest
1/100 of 1%, then to the next higher
1/100 of 1%) of the quotations for such day
on such transactions received by the
Administrative Agent from three Federal
funds brokers of recognized standing
selected by the Administrative Agent.
"FEES": as
defined in Section 3.2.
"FINANCIAL
STATEMENTS": as defined in Section 4.13.
"FOREIGN
LENDER": any Lender that is organized under the laws of a
jurisdiction other than the United States
of America, any State thereof or the
District of Columbia.
"GAAP":
generally accepted accounting principles set forth in the
opinions
and pronouncements of the Accounting
Principles Board and the American Institute
of Certified Public Accountants and
statements and pronouncements of the
Financial Accounting Standards Board or
such other principles as may be approved
by a significant segment of the accounting
profession, which are applicable to
the circumstances as of the date of
determination, consistently applied.
"GOVERNMENTAL AUTHORITY": any foreign, federal, state, municipal or
other
government, or any department, commission,
board, bureau, agency, public
authority or instrumentality thereof, or
any court or arbitrator.
"GRANTING
LENDER": as defined in Section 11.7(h).
"HAZARDOUS
MATERIALS": all explosive or radioactive substances or wastes
and all hazardous or toxic substances,
wastes or other pollutants, including
petroleum or petroleum distillates,
asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other
substances or wastes of any nature
regulated pursuant to any Environmental Law.
"HIGHEST
LAWFUL RATE": as to any Lender, the maximum rate of interest,
if
any, which at any time or from time to time
may be contracted for, taken,
charged or received on the Loans or the
Notes or which may be owing to such
Lender pursuant to this Agreement under the
laws applicable to such Lender and
this Agreement.
"INDEBTEDNESS": as to any Person at a particular time, all items of
such
Person which constitute, without
duplication, (a) indebtedness for borrowed
money or the deferred purchase price of
Property (other than trade payables and
accrued expenses incurred in the ordinary
course of business), (b) indebtedness
evidenced by notes, bonds, debentures or
similar instruments, (c) indebtedness
with respect to any conditional sale or
other title retention agreement, (d)
indebtedness arising under acceptance
facilities and the amount available to be
drawn under all letters of credit
(excluding for purposes of Sections 8.1 and
8.9 letters of credit obtained in the
ordinary course of business by the
Borrower or any Subsidiary) issued for the
account of such Person and, without
duplication, all drafts drawn thereunder to
the extent such Person shall not
have reimbursed the
9
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issuer in respect of the issuer's payment
of such drafts, (e) that portion of
any obligation of such Person, as lessee,
which in accordance with GAAP is
required to be capitalized on a balance
sheet of such Person, (f) all
indebtedness described in (a) - (e) above
secured by any Lien on any Property
owned by such Person even though such
Person shall not have assumed or otherwise
become liable for the payment thereof
(other than carriers', warehousemen's,
mechanics', repairmen's or other like
non-consensual Liens arising in the
ordinary course of business), and (g)
Contingent Obligations in respect of any
indebtedness described in items (a) - (f)
above, PROVIDED that, for purposes of
this definition, Indebtedness shall not
include Intercompany Debt and
obligations in respect of interest rate
caps, collars, exchanges, swaps or
other, similar agreements.
"INDEMNIFIED LIABILITIES": as defined in Section 11.5.
"INDEMNIFIED PERSON": as defined in Section 11.10.
"INTERCOMPANY DEBT": (i) Indebtedness of the Borrower to one or
more of
the Subsidiaries of the Borrower and (ii)
demand Indebtedness of one or more of
the Subsidiaries of the Borrower to the
Borrower or any one or more of the other
Subsidiaries of the Borrower.
"INTERCOMPANY DISPOSITION": a Disposition by the Borrower or any of
the
Subsidiaries of the Borrower to the
Borrower or to any of the other Subsidiaries
of the Borrower.
"INTEREST
PAYMENT DATE": (i) as to any ABR Advance, the last day of each
March, June, September and December,
commencing on the first of such days to
occur after such ABR Advance is made or any
Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Eurodollar
Advance in respect of which the
Borrower has selected a Eurodollar Interest
Period of one, two or three months,
the last day of such Eurodollar Interest
Period, (iii) as to any Competitive Bid
Loan in respect of which the Borrower has
selected a Competitive Interest Period
of 90 days or less the last day of such
Competitive Interest Period and (iv) as
to any Eurodollar Advance or Competitive
Bid Loan in respect of which the
Borrower has selected an Interest Period
greater than three months or 90 days,
as the case may be, the last day of the
third month or the 90th day, as the case
may be, of such Interest Period and the
last day of such Interest Period.
"INTEREST
PERIOD": a Eurodollar Interest Period or a Competitive Interest
Period, as the case may be.
"INTERNAL
REVENUE CODE": the Internal Revenue Code of 1986, as amended
from time to time, or any successor
thereto, and the rules and regulations
issued thereunder, as from time to time in
effect.
"INVITATION TO BID": an invitation by the Administrative Agent to
the
Lenders to make Competitive Bids in the
form of Exhibit G.
"LENDER":
as defined in the preamble.
"LIEN":
any mortgage, pledge, hypothecation, assignment, lien, deposit
arrangement, charge, encumbrance or other
security arrangement or security
interest of any kind, or the interest
of
10
<Page>
a vendor or lessor under any conditional
sale agreement, capital lease or other
title retention agreement.
"LOAN": a
Revolving Credit Loan or a Competitive Bid Loan, as the case
may
be.
"LOAN
DOCUMENTS": this Agreement and, upon the execution and delivery
thereof, the Notes, if any.
"LOANS":
the Revolving Credit Loans and the Competitive Bid Loans.
"MARGIN
STOCK": any "margin stock", as said term is defined in
Regulation
U of the Board of Governors of the Federal
Reserve System, as the same may be
amended or supplemented from time to
time.
"MATERIAL
ADVERSE": with respect to any change or effect, a material
adverse change in, or effect on, as the
case may be, (i) the financial
condition, operations, business, or
Property of the Borrower and the
Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its
obligations under the Loan Documents, or
(iii) the ability of the Administrative
Agent or any Lender to enforce the Loan
Documents.
"MOODY'S":
Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN": a Pension Plan which is a multiemployer plan
as
defined in Section 4001(a)(3) of ERISA.
"NET WORTH": at
any date of determination, the sum of all amounts which
would be included under shareholders'
equity on a Consolidated balance sheet of
the Borrower and the Subsidiaries
determined in accordance with GAAP as at such
date.
"NOTE":
with respect to each Lender that has requested one, a
promissory
note evidencing such Lender's Loans payable
to the order of such Lender (or, if
required by such Lender, to such Lender and
its registered assigns),
substantially in the form of Exhibit B.
"OTHER
CREDIT AGREEMENT": the Five Year Credit Agreement, dated as of
June
11, 2004, by and among the Borrower, the
lenders party thereto, Bank of America,
N.A., Credit Suisse First Boston, and
Wachovia Securities, Inc., as
co-syndication agents, ABN AMRO Bank N.V.,
as documentation agent, and BNY, as
administrative agent, as the same may be
amended, supplemented, replaced or
otherwise modified from time to time.
"PARTICIPANT": as defined in Section 11.7(e).
"PBGC":
the Pension Benefit Guaranty Corporation established pursuant
to
Subtitle A of Title IV of ERISA, or any
Governmental Authority succeeding to the
functions thereof.
"PENSION
PLAN": at any time, any Employee Benefit Plan (including a
Multiemployer Plan) subject to Section 302
of ERISA or Section 412 of the
Internal Revenue Code, the funding
requirements of which are, or at any time
within the six years immediately preceding
the time in
11
<Page>
question, were in whole or in part, the
responsibility of the Borrower, any
Subsidiary or an ERISA Affiliate.
"PERSON":
any individual, firm, partnership, limited liability company,
joint venture, corporation, association,
business trust, joint stock company,
unincorporated association, trust,
Governmental Authority or any other entity,
whether acting in an individual, fiduciary,
or other capacity, and for the
purpose of the definition of "ERISA
Affiliate", a trade or business.
"PRICING
LEVEL": Pricing Level I, Pricing Level II, Pricing Level III,
Pricing Level IV, Pricing Level V, Pricing
Level VI or Pricing Level VII, as the
case may be.
"PRICING
LEVEL I": any time when the senior unsecured long term debt
rating of the Borrower by (x) S&P is AA
- or higher or (y) Moody's is Aa3 or
higher.
"PRICING
LEVEL II": any time when (i) the senior unsecured long term
debt
rating of the Borrower by (x) S&P is A+
or higher or (y) Moody's is A1 or higher
and (ii) Pricing Level I does not
apply.
"PRICING
LEVEL III": any time when (i) the senior unsecured long term
debt
rating of the Borrower by (x) S&P is A
or higher or (y) Moody's is A2 or higher
and (ii) neither Pricing Level I nor II
applies.
"PRICING
LEVEL IV": any time when (i) the senior unsecured long term
debt
rating of the Borrower by (x) S&P is A
- or higher or (y) Moody's is A3 or
higher and (ii) none of Pricing Level I, II
or III applies.
"PRICING
LEVEL V": any time when (i) the senior unsecured long term debt
rating of the Borrower by (x) S&P is
BBB+ or higher or (y) Moody's is Baa1 or
higher and (ii) none of Pricing Level I,
II, III or IV applies.
"PRICING
LEVEL VI": any time when (i) the senior unsecured long term
debt
rating of the Borrower by (x) S&P is
BBB or higher or (y) Moody's is Baa2 or
higher and (ii) none of Pricing Level I,
II, III, IV or V applies.
"PRICING
LEVEL VII": any time when none of Pricing Level I, II, III, IV,
V
or VI applies.
Notwithstanding each definition of Pricing Level set forth above,
if at
any time the senior unsecured long term
debt ratings of the Borrower by S&P and
Moody's differ by more than one equivalent
rating level, then the applicable
Pricing Level shall be determined based
upon the lower such rating adjusted
upwards to the next higher rating
level.
"PRINCIPAL
OFFICE": from time to time, the principal office of BNY,
located on the date hereof in New York, New
York.
"PROHIBITED TRANSACTION": a transaction that is prohibited under
Section
4975 of the Internal Revenue Code or
Section 406 of ERISA and not exempt under
Section 4975 of the Internal Revenue Code
or Section 408 of ERISA.
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<Page>
"PROPERTY": in respect of any Person, all types of real, personal
or mixed
property and all types of tangible or
intangible property owned or leased by
such Person.
"REGULATORY CHANGE": (a) the introduction or phasing in of any law,
rule
or regulation after the date hereof, (b)
the issuance or promulgation after the
date hereof of any directive, guideline or
request from any central bank or
United States or foreign Governmental
Authority (whether or not having the force
of law), or (c) any change after the date
hereof in the interpretation of any
existing law, rule, regulation, directive,
guideline or request by any central
bank or United States or foreign
Governmental Authority charged with the
administration thereof, in each case
applicable to the transactions contemplated
by this Agreement.
"RELATED
PARTIES": with respect to any specified Person, such Person's
Affiliates and the respective directors,
officers, employees, agents and
advisors of such Person and such Person's
Affiliates.
"REPLACED
LENDER": as defined in Section 3.12.
"REPLACEMENT LENDER": as defined in Section 3.12.
"REPORTABLE EVENT": with respect to any Pension Plan, (a) any event
set
forth in Sections 4043(c) (other than a
Reportable Event as to which the 30 day
notice requirement is waived by the PBGC
under applicable regulations), 4062(e)
or 4063(a) of ERISA, or the regulations
thereunder, (b) an event requiring the
Borrower, any Subsidiary or any ERISA
Affiliate to provide security to a Pension
Plan under Section 401(a)(29) of the
Internal Revenue Code, or (c) the failure
to make any payment required by Section
412(m) of the Internal Revenue Code.
"REQUIRED
LENDERS": (a) at any time prior to the Commitment Termination
Date or such earlier date as all of the
Commitments shall have terminated or
been terminated in accordance herewith,
Lenders having Commitment Amounts equal
to or more than 51% of the Aggregate
Commitment Amount, and (b) at all other
times, Lenders having Credit Exposure equal
to or more than 51% of the Aggregate
Credit Exposure.
"RESTRICTED PAYMENT": with respect to any Person, any of the
following,
whether direct or indirect: (a) the
declaration or payment by such Person of any
dividend or distribution on any class of
Stock of such Person, other than a
dividend payable solely in shares of that
class of Stock to the holders of such
class, (b) the declaration or payment by
such Person of any distribution on any
other type or class of equity interest or
equity investment in such Person, and
(c) any redemption, retirement, purchase or
acquisition of, or sinking fund or
other similar payment in respect of, any
class of Stock of, or other type or
class of equity interest or equity
investment in, such Person.
"RESTRICTIVE AGREEMENT": as defined in Section 8.7.
"REVOLVING
CREDIT LOANS": as defined in Section 2.1(a).
"S&P":
Standard & Poor's, a division of The McGraw-Hill Companies,
Inc.
13
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"SOLVENT":
with respect to any Person on a particular date, the condition
that on such date, (i) the fair value of
the Property of such Person is greater
than the total amount of liabilities,
including, without limitation, contingent
liabilities, of such Person, (ii) the
present fair salable value of the assets
of such Person is not less than the amount
that will be required to pay the
probable liability of such Person on its
debts as they become absolute and
matured, (iii) such Person does not intend
to, and does not believe that it
will, incur debts or liabilities beyond
such Person's ability to pay as such
debts and liabilities mature, and (iv) such
Person is not engaged in business or
a transaction, and is not about to engage
in business or a transaction, for
which such Person's Property would
constitute an unreasonably small amount of
capital. For purposes of this definition,
the amount of any contingent liability
at any time shall be computed as the amount
that, in light of all the facts and
circumstances existing at such time,
represents the amount that can reasonably
be expected to become an actual or matured
liability after taking into account
probable payments by co-obligors.
"SPECIAL
COUNSEL": such counsel as the Administrative Agent may engage
from time to time.
"SUBSIDIARY": at any time and from time to time, any
corporation,
association, partnership, limited liability
company, joint venture or other
business entity of which the Borrower
and/or any Subsidiary of the Borrower,
directly or indirectly at such time, either
(a) in respect of a corporation,
owns or controls more than 50% of the
outstanding stock having ordinary voting
power to elect a majority of the board of
directors or similar managing body,
irrespective of whether a class or classes
shall or might have voting power by
reason of the happening of any contingency,
or (b) in respect of an association,
partnership, limited liability company,
joint venture or other business entity,
is entitled to share in more than 50% of
the profits and losses, however
determined.
"TANGIBLE
NET WORTH": at any date of determination, Net Worth less all
assets of the Borrower and its Subsidiaries
included in such Net Worth,
determined on a Consolidated basis at such
date, that would be classified as
intangible assets in accordance with
GAAP.
"TERMINATION EVENT": with respect to any Pension Plan, (a) a
Reportable
Event, (b) the termination of a Pension
Plan under Section 4041(c) of ERISA, or
the filing of a notice of intent to
terminate a Pension Plan under Section
4041(c) of ERISA, or the treatment of a
Pension Plan amendment as a termination
under Section 4041(e) of ERISA (except an
amendment made after such Pension Plan
satisfies the requirement for a standard
termination under Section 4041(b) of
ERISA), (c) the institution of proceedings
by the PBGC to terminate a Pension
Plan under Section 4042 of ERISA, or (d)
the appointment of a trustee to
administer any Pension Plan under Section
4042 of ERISA.
"TOTAL
CAPITALIZATION": at any date, the sum of the Borrower's
Consolidated Indebtedness and shareholders'
equity on such date, determined in
accordance with GAAP.
"TYPE":
with respect to any Revolving Credit Loan, the characteristic
of
such Loan as an ABR Advance or a Eurodollar
Advance, each of which constitutes a
Type of Revolving Credit Loan.
14
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"UNQUALIFIED AMOUNT": as defined in Section 3.4(c).
"UPSTREAM
DIVIDENDS": as defined in Section 8.7.
"UTILIZATION FEE": as defined in Section 3.11(b).
1.2
PRINCIPLES OF
CONSTRUCTION
(a) All
capitalized terms defined in this Agreement shall have the
meanings given such capitalized terms
herein when used in the other Loan
Documents or in any certificate, opinion or
other document made or delivered
pursuant hereto or thereto, unless
otherwise expressly provided therein.
(b) Unless
otherwise expressly provided herein, the word "FISCAL"
when used herein shall refer to the
relevant fiscal period of the Borrower. As
used in the Loan Documents and in any
certificate, opinion or other document
made or delivered pursuant thereto,
accounting terms not defined in Section 1.1,
and accounting terms partly defined in
Section 1.1, to the extent not defined,
shall have the respective meanings given to
them under GAAP.
(c) The words
"HEREOF", "HEREIN", "HERETO" and "HEREUNDER" and
similar words when used in each Loan
Document shall refer to such Loan Document
as a whole and not to any particular
provision of such Loan Document, and
Section, schedule and exhibit references
contained therein shall refer to
Sections thereof or schedules or exhibits
thereto unless otherwise expressly
provided therein.
(d) All
references herein to a time of day shall mean the then
applicable time in New York, New York,
unless otherwise expressly provided
herein.
(e) Section
headings have been inserted in the Loan Documents for
convenience only and shall not be construed
to be a part thereof. Unless the
context otherwise requires, words in the
singular number include the plural, and
words in the plural include the
singular.
(f) Whenever in
any Loan Document or in any certificate or other
document made or delivered pursuant
thereto, the terms thereof require that a
Person sign or execute the same or refer to
the same as having been so signed or
executed, such terms shall mean that the
same shall be, or was, duly signed or
executed by (i) in respect of any Person
that is a corporation, any duly
authorized officer thereof, and (ii) in
respect of any other Person (other than
an individual), any analogous counterpart
thereof.
(g) The words
"INCLUDE" and "INCLUDING", when used in each Loan
Document, shall mean that the same shall be
included "without limitation",
unless otherwise specifically provided.
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2. AMOUNT AND TERMS OF
LOANS
2.1
Revolving Credit
Loans
(a) Subject to
the terms and conditions hereof, each Lender
severally (and not jointly) agrees to make
loans under this Agreement (each a
"REVOLVING CREDIT LOAN" and, collectively
with each other Revolving Credit Loan
of such Lender and/or with each Revolving
Credit Loan of each other Lender, the
"REVOLVING CREDIT LOANS") to the Borrower
from time to time during the
Commitment Period, during which period the
Borrower may borrow, prepay and
reborrow in accordance with the provisions
hereof. Immediately after making each
Revolving Credit Loan and after giving
effect to all Competitive Bid Loans
repaid on the same date, the Aggregate
Credit Exposure will not exceed the
Aggregate Commitment Amount. With respect
to each Lender, at the time of the
making of any Revolving Credit Loan, the
sum of (I) the principal amount of such
Lender's Revolving Credit Loan constituting
a part of the Revolving Credit Loans
to be made and (II) the aggregate principal
balance of all other Revolving
Credit Loans (exclusive of Revolving Credit
Loans which are repaid with the
proceeds of, and simultaneously with the
incidence of, the Revolving Credit
Loans to be made) then outstanding from
such Lender will not exceed the
Commitment of such Lender at such time. At
the option of the Borrower, indicated
in a Borrowing Request, Revolving Credit
Loans may be made as ABR Advances or
Eurodollar Advances.
(b) The
aggregate outstanding principal balance of all Revolving
Credit Loans shall be due and payable on
the Commitment Termination Date or on
such earlier date upon which all of the
Commitments shall have been voluntarily
terminated by the Borrower in accordance
with Section 2.6.
2.2
[INTENTIONALLY
OMITTED]
2.3
NOTICE OF
BORROWING REVOLVING CREDIT LOANS
The Borrower agrees to notify the Administrative Agent, which
notification shall be irrevocable, no later
than (a) 10:00 A.M. on the proposed
Borrowing Date in the case of Revolving
Credit Loans to consist of ABR Advances
and (b) 10:00 A.M. at least two Eurodollar
Business Days prior to the proposed
Borrowing Date in the case of Revolving
Credit Loans to consist of Eurodollar
Advances. Each such notice shall specify
(i) the aggregate amount requested to
be borrowed under the Commitments, (ii) the
proposed Borrowing Date, (iii)
whether a borrowing of Revolving Credit
Loans is to be of ABR Advances or
Eurodollar Advances, and the amount of each
thereof and (iv) the Interest Period
for such Eurodollar Advances. Each such
notice shall be promptly confirmed by
delivery to the Administrative Agent of a
Borrowing Request. Each Eurodollar
Advance to be made on a Borrowing Date,
when aggregated with all amounts to be
Converted to Eurodollar Advances on such
date and having the same Interest
Period as such Eurodollar Advance, shall
equal no less than $10,000,000, or an
integral multiple of $1,000,000 in excess
thereof. Each ABR Advance made on each
Borrowing Date shall equal no less than
$5,000,000 or an integral multiple of
$500,000 in excess thereof. The
Administrative Agent shall promptly notify each
Lender (by telephone or otherwise, such
notification to be confirmed by fax or
other writing) of each such Borrowing
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Request. Subject to its receipt of each
such notice from the Administrative
Agent and subject to the terms and
conditions hereof, each Lender shall make
immediately available funds available to
the Administrative Agent at the address
therefor set forth in Section 11.2 not
later than 1:00 P.M. on each Borrowing
Date in an amount equal to such Lender's
Commitment Percentage of the Revolving
Credit Loans requested by the Borrower on
such Borrowing Date.
2.4
COMPETITIVE BID
LOANS AND PROCEDURE
(a) Subject to
the terms and conditions hereof, the Borrower may
request competitive bid loans under this
Agreement (each a "COMPETITIVE BID
LOAN") during the Commitment Period. In
order to request Competitive Bids, the
Borrower shall deliver by hand or fax to
the Administrative Agent a duly
completed Competitive Bid Request not later
than 11:00 A.M., one Domestic
Business Day before the proposed Borrowing
Date therefor. A Competitive Bid
Request that does not conform substantially
to the format of Exhibit F may be
rejected by the Administrative Agent in the
Administrative Agent's reasonable
discretion, and the Administrative Agent
shall promptly notify the Borrower of
such rejection by fax and telephone. Each
Competitive Bid Request shall specify
(x) the proposed Borrowing Date for the
Competitive Bid Loans then being
requested (which shall be a Domestic
Business Day) and the aggregate principal
amount thereof and (y) the Competitive
Interest Period or Interest Periods
(which shall not exceed ten different
Interest Periods in a single Competitive
Bid Request), with respect thereto (which
may not end after the Domestic
Business Day immediately preceding the
Commitment Termination Date). Promptly
after its receipt of each Competitive Bid
Request that is not rejected as
aforesaid, the Administrative Agent shall
invite by fax (in the form of Exhibit
G) the Lenders to bid, on the terms and
conditions of this Agreement, to make
Competitive Bid Loans pursuant to such
Competitive Bid Request.
(b) Each Lender,
in its sole and absolute discretion, may make one
or more Competitive Bids to the Borrower
responsive to a Competitive Bid
Request. Each Competitive Bid by a Lender
must be received by the Administrative
Agent not later than 10:00 A.M. on the
proposed Borrowing Date for the relevant
Competitive Bid Loan. Multiple bids will be
accepted by the Administrative
Agent. Bids to make Competitive Bid Loans
that do not conform substantially to
the format of Exhibit H may be rejected by
the Administrative Agent after
conferring with, and upon the instruction
of, the Borrower, and the
Administrative Agent shall notify the
Lender making such nonconforming bid of
such rejection as soon as practicable. Each
Competitive Bid shall be irrevocable
and shall specify (x) the principal amount
(which (1) shall be in a minimum
principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess
thereof, and (2) may equal the entire
principal amount requested by the
Borrower) of the Competitive Bid Loan or
Competitive Bid Loans that the Lender
is willing to make to the Borrower, (y) the
Competitive Bid Rate or Rates at
which the Lender is prepared to make such
Competitive Bid Loan or Competitive
Bid Loans, and (z) the Competitive Interest
Period with respect to each such
Competitive Bid Loan and the last day
thereof. If any Lender shall elect not to
make a Competitive Bid, such Lender shall
so notify the Administrative Agent by
fax not later than 10:00 A.M. on the
proposed Borrowing Date therefor, PROVIDED
that the failure by any Lender to give any
such notice shall not obligate such
Lender to make any Competitive Bid Loan in
connection with the relevant
Competitive Bid Request.
17
<Page>
(c) With respect
to each Competitive Bid Request, the
Administrative Agent shall (i) notify the
Borrower by fax by 11:00 A.M. on the
proposed Borrowing Date with respect
thereto of each Competitive Bid made, the
Competitive Bid Rate applicable thereto and
the identity of the Lender that made
such Competitive Bid, and (ii) send a list
of all Competitive Bids to the
Borrower for its records as soon as
practicable after completion of the bidding
process. Each notice and list sent by the
Administrative Agent pursuant to this
Section 2.4(c) shall list the Competitive
Bids in ascending yield order.
(d) The Borrower
may in its sole and absolute discretion, subject
only to the provisions of this Section
2.4(d), accept or reject any Competitive
Bid made in accordance with the procedures
set forth in this Section 2.4, and
the Borrower shall notify the
Administrative Agent by telephone, confirmed by
fax in the form of a Competitive Bid
Accept/Reject Letter, whether and to what
extent it has decided to accept or reject
any or all of such Competitive Bids
not later than 12:00 Noon on the proposed
Borrowing Date therefor, PROVIDED that
the failure by the Borrower to give such
notice shall be deemed to be a
rejection of all such Competitive Bids. In
connection with each acceptance of
one or more Competitive Bids by the
Borrower:
(1) the Borrower
shall not accept a Competitive Bid made at
a particular Competitive Bid Rate if the
Borrower has decided to reject a
Competitive Bid made at a lower Competitive
Bid Rate unless the acceptance of
such lower Competitive Bid would subject
the Borrower to any requirement to
withhold any taxes or deduct any amount
from any amounts payable under the Loan
Documents, in which case the Borrower may
reject such lower Competitive Bid,
(2) the
aggregate amount of the Competitive Bids accepted by
the Borrower shall not exceed the principal
amount specified in the Competitive
Bid Request therefor,
(3) if the
Borrower shall desire to accept a Competitive Bid
made at a particular Competitive Bid Rate,
it must accept all other Competitive
Bids at such Competitive Bid Rate, except
for any such Competitive Bid the
acceptance of which would subject the
Borrower to any requirement to withhold
any taxes or deduct any amount from any
amounts payable under the Loan
Documents, PROVIDED that if the acceptance
of all such other Competitive Bids
would cause the aggregate amount of all
such accepted Competitive Bids to exceed
the amount requested, then such acceptance
shall be made pro rata in accordance
with the amount of each such Competitive
Bid at such Competitive Bid Rate,
(4) except
pursuant to clause (3) above, no Competitive Bid
shall be accepted unless the Competitive
Bid Loan with respect thereto shall be
in a minimum principal amount of $5,000,000
or an integral multiple of
$1,000,000 in excess thereof, and
(5) no
Competitive Bid shall be accepted and no Competitive
Bid Loan shall be made, if immediately
after giving effect thereto, the
Aggregate Credit Exposure would exceed the
Aggregate Commitment Amount.
18
<Page>
(e) The
Administrative Agent shall promptly fax to each bidding
Lender (with a copy to the Borrower) a
Competitive Bid Accept/Reject Letter
advising such Lender whether its
Competitive Bid has been accepted (and if
accepted, in what amount and at what
Competitive Bid Rate), and each successful
bidder so notified will thereupon become
bound, subject to the other applicable
conditions hereof, to make the Competitive
Bid Loan in respect of which each of
its Competitive Bids has been accepted by
making immediately available funds
available to the Administrative Agent at
its address set forth in Section 11.2
not later than 1:00 P.M. on the Borrowing
Date for such Competitive Bid Loan in
the amount thereof.
(f) Anything
herein to the contrary notwithstanding, if the
Administrative Agent shall elect to submit
a Competitive Bid in its capacity as
a Lender, it shall submit such bid directly
to the Borrower not later than 9:30
A.M. on the relevant proposed Borrowing
Date.
(g) All notices
required by this Section shall be given in
accordance with Section 11.2.
2.5
USE OF
PROCEEDS
The Borrower agrees that the proceeds of the Loans shall be
used
solely for its general corporate purposes
not inconsistent with the provisions
hereof, including as a backup for
commercial paper issued by the Borrower.
Notwithstanding anything to the contrary
contained in any Loan Document, the
Borrower further agrees that no part of the
proceeds of any Loan will be used,
directly or indirectly, and whether
immediately, incidentally or ultimately (i)
for a purpose which violates any law, rule
or regulation of any Governmental
Authority, including the provisions of
Regulations U or X of the Board of
Governors of the Federal Reserve System, as
amended or any provision of this
Agreement, including, without limitation,
the provisions of Section 4.9 and (ii)
to make a loan to any director or executive
officer of the Borrower or any
Subsidiary.
2.6
TERMINATION OR
REDUCTION OF COMMITMENTS
(a) VOLUNTARY
TERMINATION OR REDUCTIONS. At the Borrower's option
and upon at least three Domestic Business
Days' prior irrevocable notice to the
Administrative Agent, the Borrower may (i)
terminate the Commitments at any
time, or (ii) permanently reduce the
Aggregate Commitment Amount in part at any
time and from time to time, PROVIDED that
(1) each such partial reduction shall
be in an amount equal to at least
$10,000,000 or an integral multiple of
$1,000,000 in excess thereof, and (2)
immediately after giving effect to each
such reduction, the Aggregate Commitment
Amount shall equal or exceed the
Aggregate Credit Exposure, and PROVIDED
FURTHER that a notice of termination of
the Commitments, delivered by the Borrower
may state that such notice is
conditioned upon the effectiveness of other
credit facilities (such notice to
specify the proposed effective date), in
which case such notice may be revoked
by the Borrower (by notice to the
Administrative Agent on or prior to such
specified effective date) if such condition
is not satisfied and the Borrower
shall indemnify the Lenders in accordance
with Section 3.5.
19
<Page>
(b) IN GENERAL.
Each reduction of the Aggregate Commitment Amount
shall be made by reducing each Lender's
Commitment Amount by a sum equal to such
Lender's Commitment Percentage of the
amount of such reduction.
2.7
PREPAYMENTS OF
LOANS
(a) VOLUNTARY
PREPAYMENTS. The Borrower may prepay Revolving
Credit Loans and Competitive Bid Loans, in
whole or in part, without premium or
penalty, but subject to Section 3.5 at any
time and from time to time, by
notifying the Administrative Agent, which
notification shall be irrevocable, at
least two Eurodollar Business Days, in the
case of a prepayment of Eurodollar
Advances, two Domestic Business Days, in
the case of Competitive Bid Loans, or
one Domestic Business Day, in the case of a
prepayment of ABR Advances, prior to
the proposed prepayment date specifying (i)
the Loans to be prepaid, (ii) the
amount to be prepaid, and (iii) the date of
prepayment. Upon receipt of each
such notice, the Administrative Agent shall
promptly notify each Lender thereof.
Each such notice given by the Borrower
pursuant to this Section shall be
irrevocable, PROVIDED that, if a notice of
prepayment is given in connection
with a conditional notice of termination of
the Commitments as contemplated by
Section 2.6, then such notice of prepayment
may be revoked if such notice of
termination is revoked in accordance with
Section 2.6, and the Borrower shall
indemnify the Lenders in accordance with
Section 3.5. Each partial prepayment
under this Section shall be in a minimum
amount of $1,000,000 ($500,000 in the
case of ABR Advances) or an integral
multiple of $1,000,000 ($100,000 in the
case of ABR Advances) in excess
thereof.
(b) IN GENERAL.
Simultaneously with each prepayment hereunder, the
Borrower shall prepay all accrued interest
on the amount prepaid through the
date of prepayment and indemnify the
Lenders in accordance with Section 3.5.
2.8
[INTENTIONALLY
OMITTED]
2.9
[INTENTIONALLY
OMITTED]
2.10
[INTENTIONALLY
OMITTED]
2.11
NOTES
Any Lender may request that the Loans made by it be evidenced by
a
Note. In such event, the Borrower shall
prepare, execute and deliver to such
Lender a Note payable to the order of such
Person or, if requested by such
Person, such Person and its registered
assigns. Thereafter, all Loans evidenced
by such Note and interest thereon shall at
all times (including after assignment
pursuant to Section 11.7) be represented by
a Note in like form payable to the
order of the payee named therein and its
registered assigns.
20
<Page>
3. PROCEEDS, PAYMENTS,
CONVERSIONS, INTEREST, YIELD PROTECTION AND FEES
3.1
DISBURSEMENT OF
THE PROCEEDS OF THE LOANS
The Administrative Agent shall disburse the proceeds of the Loans
at
its office specified in Section 11.2 by
crediting to the Borrower's general
deposit account with the Administrative
Agent the funds received from each
Lender. Unless the Administrative Agent
shall have received prior notice from a
Lender (by telephone or otherwise, such
notice to be confirmed by fax or other
writing) that such Lender will not make
available to the Administrative Agent
such Lender's Commitment Percentage of the
Revolving Credit Loans, or the amount
of any Competitive Bid Loan, to be made by
it on a Borrowing Date, the
Administrative Agent may assume that such
Lender has made such amount available
to the Administrative Agent on such
Borrowing Date in accordance with this
Section, PROVIDED that, in the case of a
Revolving Credit Loan, such Lender
received notice thereof from the
Administrative Agent in accordance with the
terms hereof, and the Administrative Agent
may, in reliance upon such
assumption, make available to the Borrower
on such Borrowing Date a
corresponding amount. If and to the extent
such Lender shall not have so made
such amount available to the Administrative
Agent, such Lender and the Borrower
severally agree to pay to the
Administrative Agent, forthwith on demand, such
corresponding amount (to the extent not
previously paid by the other), together
with interest thereon for each day from the
date such amount is made available
to the Borrower until the date such amount
is paid to the Administrative Agent,
at a rate per annum equal to, in the case
of the Borrower, the applicable
interest rate set forth in Section 3.4(a)
and, in the case of such Lender, the
Federal Funds Effective Rate from the date
such payment is due until the third
day after such date and, thereafter, at the
Federal Funds Effective Rate PLUS
2%. Any such payment by the Borrower shall
be without prejudice to its rights
against such Lender. If such Lender shall
pay to the Administrative Agent such
corresponding amount, such amount so paid
shall constitute such Lender's Loan as
part of such Loans for purposes of this
Agreement, which Loan shall be deemed to
have been made by such Lender on the
Borrowing Date applicable to such Loans.
3.2
PAYMENTS
(a) Each
borrowing of Revolving Credit Loans by the Borrower from
the Lenders, any Conversion of Revolving
Credit Loans from one Type to another,
and any reduction in the Commitments shall
be made pro rata according to the
Commitment Percentage of each Lender. Each
payment, including each prepayment,
of principal and interest on the Loans and
of the Facility Fee and the
Utilization Fee (collectively, together
with all of the other fees to be paid to
the Administrative Agent and the Lenders in
connection with the Loan Documents,
the "FEES"), and of all of the other
amounts to be paid to the Administrative
Agent and the Lenders in connection with
the Loan Documents shall be made by the
Borrower to the Administrative Agent at its
office specified in Section 11.2
without setoff, deduction or counterclaim
in funds immediately available in New
York by 3:00 P.M. on the due date for such
payment. The failure of the Borrower
to make any such payment by such time shall
not constitute a default hereunder,
PROVIDED that such payment is made on such
due date, but any such payment made
after 3:00 P.M. on such due date shall be
deemed to have been made on the next
Domestic Business Day or Eurodollar
Business Day, as the case may be, for the
purpose of calculating interest on
21
<Page>
amounts outstanding on the Loans. If the
Borrower has not made any such payment
prior to 3:00 P.M., the Borrower hereby
authorizes the Administrative Agent to
deduct the amount of any such payment from
such account(s) as the Borrower may
from time to time designate in writing to
the Administrative Agent, upon which
the Administrative Agent shall apply the
amount of such deduction to such
payment. Promptly upon receipt thereof by
the Administrative Agent, each payment
of principal and interest on the: (i)
Revolving Credit Loans shall be remitted
by the Administrative Agent in like funds
as received to each Lender (a) first,
pro rata according to the amount of
interest which is then due and payable to
the Lenders, and (b) second, pro rata
according to the amount of principal which
is then due and payable to the Lenders and
(ii) Competitive Bid Loans shall be
remitted by the Administrative Agent in
like funds as received to each
applicable Lender. Each payment of the Fees
payable to the Lenders shall be
promptly transmitted by the Administrative
Agent in like funds as received to
each Lender pro rata according to such
Lender's Commitment Amount or, if the
Commitments shall have terminated or been
terminated, according to the
outstanding principal amount of such
Lender's Revolving Credit Loans.
(b) If any
payment hereunder or under the Loans shall be due and
payable on a day which is not a Domestic
Business Day or Eurodollar Business
Day, as the case may be, the due date
thereof (except as otherwise provided in
the definition of Eurodollar Interest
Period or Competitive Interest Period)
shall be extended to the next Domestic
Business Day or Eurodollar Business Day,
as the case may be, and (except with
respect to payments in respect of the
Facility Fee and the Utilization Fee)
interest shall be payable at the
applicable rate specified herein during
such extension.
3.3
CONVERSIONS;
OTHER MATTERS
(a) The Borrower
may elect at any time and from time to time to
Convert one or more Eurodollar Advances to
an ABR Advance by giving the
Administrative Agent at least one Domestic
Business Day's prior irrevocable
notice of such election, specifying the
amount to be so Converted. In addition,
the Borrower may elect at any time and from
time to time to Convert an ABR
Advance to any one or more new Eurodollar
Advances or to Convert any one or more
existing Eurodollar Advances to any one or
more new Eurodollar Advances by
giving the Administrative Agent no later
than 10:00 a.m. at least two Eurodollar
Business Days' prior irrevocable notice, in
the case of a Conversion to
Eurodollar Advances, of such election,
specifying the amount to be so Converted
and the initial Interest Period relating
thereto, PROVIDED that any Conversion
of an ABR Advance to Eurodollar Advances
shall only be made on a Eurodollar
Business Day. The Administrative Agent
shall promptly provide the Lenders with
notice of each such election. Each
Conversion of Loans from one Type to another
shall be made pro rata according to the
outstanding principal amount of the
Loans of each Lender. ABR Advances and
Eurodollar Advances may be Converted
pursuant to this Section in whole or in
part, PROVIDED that the amount to be
Converted to each Eurodollar Advance, when
aggregated with any Eurodollar
Advance to be made on such date in
accordance with Section 2.1 and having the
same Interest Period as such first
Eurodollar Advance, shall equal no less than
$10,000,000 or an integral multiple of
$1,000,000 in excess thereof.
22
<Page>
(b)
Notwithstanding anything in this Agreement to the contrary,
upon the occurrence and during the
continuance of a Default or an Event of
Default, the Borrower shall have no right
to elect to Convert any existing ABR
Advance to a new Eurodollar Advance or to
Convert any existing Eurodollar
Advance to a new Eurodollar Advance. In
such event, such ABR Advance shall be
automatically continued as an ABR Advance
or such Eurodollar Advance shall be
automatically Converted to an ABR Advance
on the last day of the Interest Period
applicable to such Eurodollar Advance. The
foregoing shall not affect any other
rights or remedies that the Administrative
Agent or any Lender may have under
this Agreement or any other Loan
Document.
(c) Each
Conversion shall be effected by each Lender by applying
the proceeds of each new ABR Advance or
Eurodollar Advance, as the case may be,
to the existing Advance (or portion
thereof) being Converted (it being
understood that such Conversion shall not
constitute a borrowing for purposes of
Sections 4, 5 or 6).
(d)
Notwithstanding any other provision of any Loan Document:
(i) if the
Borrower shall have failed to elect a Eurodollar
Advance under Section 2.3 or this Section
3.3, as the case may be, in connection
with any borrowing of new Revolving Credit
Loans or expiration of an Interest
Period with respect to any existing
Eurodollar Advance, the amount of the
Revolving Credit Loans subject to such
borrowing or such existing Eurodollar
Advance shall thereafter be an ABR Advance
until such time, if any, as the
Borrower shall elect a new Eurodollar
Advance pursuant to this Section 3.3,
(ii) the Borrower
shall not be permitted to select a
Eurodollar Advance the Interest Period in
respect of which ends later than the
Commitment Termination Date or such earlier
date upon which all of the
Commitments shall have been voluntarily
terminated by the Borrower in accordance
with Section 2.6, and
(iii) the Borrower shall not be permitted to have more than 15
Eurodollar Advances and Competitive Bid
Loans, in the aggregate, outstanding at
any one time, it being understood and
agreed that each borrowing of Eurodollar
Advances or Competitive Bid Loans pursuant
to a single Borrowing Request or
Competitive Bid Request, as the case may
be, shall constitute the making of one
Eurodollar Advance or Competitive Bid Loan
for the purpose of calculating such
limitation.
3.4
INTEREST RATES
AND PAYMENT DATES
(a) PRIOR TO
MATURITY. Except as otherwise provided in Sections
3.4(b) and 3.4(c), the Loans shall bear
interest on the unpaid principal balance
thereof at the applicable interest rate or
rates per annum set forth below:
<Table>
<Caption>
LOANS
RATE
--------------------------
---------------------------------------------
<S>
<C>
Revolving Credit Loans
Alternate Base Rate applicable thereto PLUS
constituting ABR Advances
the Applicable Margin.
</Table>
23
<Page>
<Table>
<S>
<C>
Revolving Credit Loans
Eurodollar Rate applicable thereto PLUS the
constituting Eurodollar
Applicable Margin.
Advances
Competitive Bid Loans
Fixed rate of interest applicable thereto
</Table>
(b) AFTER
MATURITY, LATE PAYMENT RATE. After maturity, whether by
acceleration, notice of intention to prepay
or otherwise, the outstanding
principal balance of the Loans shall bear
interest at the Alternate Base Rate
PLUS 2% per annum until paid (whether
before or after the entry of any judgment
thereon). Any payment of principal,
interest or any Fees not paid on the date
when due and payable shall bear interest at
the Alternate Base Rate PLUS 2% per
annum from the due date thereof until the
date such payment is made (whether
before or after the entry of any judgment
thereon).
(c) HIGHEST
LAWFUL RATE. Notwithstanding anything to the contrary
contained in this Agreement, at no time
shall the interest rate payable to any
Lender on any of its Loans, together with
the Fees and all other amounts payable
hereunder to such Lender to the extent the
same constitute or are deemed to
constitute interest, exceed the Highest
Lawful Rate. If in respect of any period
during the term of this Agreement, any
amount paid to any Lender hereunder, to
the extent the same shall (but for the
provisions of this Section 3.4)
constitute or be deemed to constitute
interest, would exceed the maximum amount
of interest permitted by the Highest Lawful
Rate during such period (such amount
being hereinafter referred to as an
"UNQUALIFIED AMOUNT"), then (i) such
Unqualified Amount shall be applied or
shall be deemed to have been applied as a
prepayment of the Loans of such Lender, and
(ii) if, in any subsequent period
during the term of this Agreement, all
amounts payable hereunder to such Lender
in respect of such period which constitute
or shall be deemed to constitute
interest shall be less than the maximum
amount of interest permitted by the
Highest Lawful Rate during such period,
then the Borrower shall pay to such
Lender in respect of such period an amount
(each a "COMPENSATORY INTEREST
PAYMENT") equal to the lesser of (x) a sum
which, when added to all such
amounts, would equal the maximum amount of
interest permitted by the Highest
Lawful Rate during such period, and (y) an
amount equal to the aggregate sum of
all Unqualified Amounts LESS all other
Compensatory Interest Payments.
(d) GENERAL.
Interest shall be payable in arrears on each Interest
Payment Date, on the Commitment Termination
Date and, to the extent provided in
Section 2.7(b), upon each prepayment of the
Loans. Any change in the interest
rate on the Loans resulting from an
increase or a decrease in the Alternate Base
Rate or any reserve requirement shall
become effective as of the opening of
business on the day on which such change
shall become effective. The
Administrative Agent shall, as soon as
practicable, notify the Borrower and the
Lenders of the effective date and the
amount of each change in the BNY Rate, but
any failure to so notify shall not in any
manner affect the obligation of the
Borrower to pay interest on the Loans in
the amounts and on the dates set forth
herein. Each determination by the
Administrative Agent of the Alternate Base
Rate, the Eurodollar Rate and the
Competitive Rate pursuant to this Agreement
shall be conclusive and binding on the
Borrower absent manifest error. The
Borrower acknowledges that to the extent
interest payable on the Loans is based
on the Alternate Base Rate, such rate is
only one of the bases for computing
interest on loans made by the
24
<Page>
Lenders, and by basing interest payable on
ABR Advances on the Alternate Base
Rate, the Lenders have not committed to
charge, and the Borrower has not in any
way bargained for, interest based on a
lower or the lowest rate at which the
Lenders may now or in the future make
extensions of credit to other Persons. All
interest (other than interest calculated
with reference to the BNY Rate) shall
be calculated on the basis of a 360-day
year for the actual number of days
elapsed, and all interest determined with
reference to the BNY Rate shall be
calculated on the basis of a 365/366-day
year for the actual number of days
elapsed.
3.5
INDEMNIFICATION
FOR LOSS
Notwithstanding anything contained herein to the contrary, if:
(i)
the Borrower shall fail to borrow a
Eurodollar Advance or if the Borrower shall
fail to Convert a Eurodollar Advance after
it shall have given notice to do so
in which it shall have requested a
Eurodollar Advance pursuant to Section 2.3 or
3.3, as the case may be, (ii) the Borrower
shall fail to borrow a Competitive
Bid Loan after it shall have accepted any
offer with respect thereto in
accordance with Section 2.4, (iii) a
Eurodollar Advance or Competitive Bid Loan
shall be terminated for any reason prior to
the last day of the Interest Period
applicable thereto, (iv) any repayment or
prepayment of the principal amount of
a Eurodollar Advance or Competitive Bid
Loan is made for any reason on a date
which is prior to the last day of the
Interest Period applicable thereto, or (v)
the Borrower shall have revoked a notice of
prepayment or notice of termination
of the Commitments that was conditioned
upon the effectiveness of other credit
facilities pursuant to Section 2.6 or 2.7,
the Borrower agrees to indemnify each
Lender against, and to pay on demand
directly to such Lender the amount
(calculated by such Lender using any method
chosen by such Lender which is
customarily used by such Lender for such
purpose) equal to any loss or expense
suffered by such Lender as a result of such
failure to borrow or Convert, or
such termination, repayment, prepayment or
revocation, including any loss, cost
or expense suffered by such Lender in
liquidating or employing deposits acquired
to fund or maintain the funding of such
Eurodollar Advance or Competitive Bid
Loan, as the case may be, or redeploying
funds prepaid or repaid, in amounts
which correspond to such Eurodollar Advance
or Competitive Bid Loan, as the case
may be, and any reasonable internal
processing charge customarily charged by
such Lender in connection therewith.
3.6
REIMBURSEMENT
FOR COSTS, ETC.
If at any time or from time to time there shall occur a
Regulatory
Change and any Lender shall have reasonably
determined that such Regulatory
Change (i) shall have had or will
thereafter have the effect of reducing (A) the
rate of return on such Lender's capital or
the capital of any Person directly or
indirectly owning or controlling such
Lender (each a "CONTROL PERSON"), or (B)
the asset value (for capital purposes) to
such Lender or such Control Person, as
applicable, of the Loans, or any
participation therein, in any case to a level
below that which such Lender or such
Control Person could have achieved or would
thereafter be able to achieve but for such
Regulatory Change (after taking into
account such Lender's or such Control
Person's policies regarding capital), (ii)
will impose, modify or deem applicable any
reserve, asset, special deposit or
special assessment requirements on deposits
obtained in the interbank eurodollar
market in connection with the Loan
Documents (excluding, with respect to any
Eurodollar Advance, any such requirement
which is included in the determination
of the rate applicable thereto), (iii) will
subject such Lender
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or such Control Person, as applicable, to
any tax (documentary, stamp or
otherwise) with respect to this Agreement
or any Note, or (iv) will change the
basis of taxation of payments to such
Lender or such Control Person, as
applicable, of principal, interest or fees
payable under the Loan Documents
(except, in the case of clauses (iii) and
(iv) above, for any tax or changes in
the rate of tax on such Lender's or such
Control Person's net income) then, in
each such case, within ten days after
demand by such Lender, the Borrower shall
pay to such Lender or such Control Person,
as the case may be, such additional
amount or amounts as shall be sufficient to
compensate such Lender or such
Control Person, as the case may be, for any
such reduction, reserve or other
requirement, tax, loss, cost or expense
(excluding general administrative and
overhead costs) (collectively, "COSTS")
attributable to such Lender's or such
Control Person's compliance during the term
hereof with such Regulatory Change.
Each Lender may make multiple requests for
compensation under this Section.
Notwithstanding the foregoing, the Borrower will not be required
to
compensate any Lender for any Costs under
this Section 3.6 arising prior to 45
days preceding the date of demand, unless
the applicable Regulatory Change
giving rise to such Costs is imposed
retroactively. In the case of
retroactivity, such notice shall be
provided to the Borrower not later than 45
days from the date that such Lender learned
of such Regulatory Change. The
Borrower's obligation to compensate such
Lender shall be contingent upon the
provision of such timely notice (but any
failure by such Lender to provide such
timely notice shall not affect the
Borrower's obligations with respect to (i)
Costs incurred from the date as of which
such Regulatory Change became effective
to the date that is 45 days after the date
such Lender reasonably should have
learned of such Regulatory Change and (ii)
Costs incurred following the
provision of such notice).
3.7
ILLEGALITY OF
FUNDING
Notwithstanding any other provision hereof, if any Lender shall
reasonably determine that any law,
regulation, treaty or directive, or any
change therein or in the interpretation or
application thereof, shall make it
unlawful for such Lender to make or
maintain any Eurodollar Advance as
contemplated by this Agreement, such Lender
shall promptly notify the Borrower
and the Administrative Agent thereof, and
(a) the commitment of such Lender to
make such Eurodollar Advances or Convert
ABR Advances to such Eurodollar
Advances shall forthwith be suspended, (b)
such Lender shall fund its portion of
each requested Eurodollar Advance as an ABR
Advance and (c) such Lender's Loans
then outstanding as such Eurodollar
Advances, if any, shall be Converted
automatically to an ABR Advance on the last
day of the then current Interest
Period applicable thereto or at such
earlier time as may be required. If the
commitment of any Lender with respect to
Eurodollar Advances is suspended
pursuant to this Section and such Lender
shall have obtained actual knowledge
that it is once again legal for such Lender
to make or maintain Eurodollar
Advances, such Lender shall promptly notify
the Administrative Agent and the
Borrower thereof and, upon receipt of such
notice by each of the Administrative
Agent and the Borrower, such Lender's
commitment to make or maintain Eurodollar
Advances shall be reinstated. If the
commitment of any Lender with respect to
Eurodollar Advances is suspended pursuant
to this Section, such suspension shall
not otherwise affect such Lender's
Commitment.
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3.8
OPTION TO FUND;
SUBSTITUTED INTEREST RATE
(a) Each Lender
has indicated that, if the Borrower requests a
Eurodollar Advance or a Competitive Bid
Loan, such Lende
