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Exhibit 4.9
EXECUTION COPY
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CIT GROUP INC.
----------
$1,000,000,000
5-YEAR CREDIT AGREEMENT
Dated as of December 6, 2006
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CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arranger and
Bookrunner,
BARCLAYS CAPITAL, as Joint Lead Arranger and Bookrunner,
CITIBANK, N.A.,
as Administrative Agent
BARCLAYS BANK PLC,
as Syndication Agent
BANK OF AMERICA, N.A., as Co-Documentation Agent
and
JPMORGAN CHASE BANK, N.A., as Co-Documentation Agent
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<PAGE>
TABLE OF CONTENTS
Page
SECTION 1.
DEFINITIONS........................................................
1
1.1. Defined
Terms...................................................... 1
1.2. Other Definitional
Provisions..................................... 11
SECTION 2. AMOUNT AND TERMS OF
COMMITMENTS................................... 12
2.1.
Commitments.......................................................
12
2.2. Revolving Credit Borrowing
Procedure.............................. 14
2.3. Competitive Bid Borrowing
Procedure............................... 14
2.4. Repayment of Loans; Evidence of
Debt.............................. 17
2.5. Facility Fee; Administrative Agent's
Fee.......................... 17
2.6. Utilization
Fee................................................... 18
2.7. Termination or Reduction of
Commitments........................... 18
2.8. Optional Prepayments of Revolving Credit
Loans.................... 18
2.9. Conversion and Continuation
Options............................... 18
2.10. Applicable Interest Rate Margins, Facility Fee Rate
and
Utilization Fee.................................................
19
2.11. Minimum Amounts of
Tranches....................................... 19
2.12. Interest Rates and Payment
Dates.................................. 20
2.13. Computation of Interest and
Fees.................................. 20
2.14. Inability to Determine Interest
Rate.............................. 21
2.15. Pro Rata Treatment and
Payments................................... 21
2.16.
Illegality........................................................
22
2.17. Requirements of
Law............................................... 23
2.18. Taxes
......................................................... 24
2.19.
Indemnity.........................................................
26
2.20. Actions of
Banks.................................................. 27
2.21. Lending
Installations............................................. 27
2.22. Removal of
Banks.................................................. 27
2.23. Replacement of
Banks.............................................. 28
SECTION 3. REPRESENTATIONS AND
WARRANTIES.................................... 28
3.1. Financial
Condition............................................... 28
3.2. No
Change.........................................................
29
3.3. Corporate Existence; Compliance with Law;
Significant Subsidiaries........................................
29
3.4. Corporate Power; Authorization; Enforceable
Obligations........... 29
3.5. No Legal
Bar...................................................... 29
3.6. No Material
Litigation............................................ 29
3.7. No
Default........................................................
30
3.8. Aggregation of the Representations and
Warranties Relating to Net Worth................................
30
3.9. Federal
Regulations............................................... 30
3.10. ERISA
............................................................ 30
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3.11. Investment Company
Act............................................ 30
3.12. Purpose of
Loans.................................................. 30
SECTION 4. CONDITIONS
PRECEDENT.............................................. 30
4.1. Conditions to Initial
Loans....................................... 30
4.2. Conditions to Each
Loan........................................... 31
SECTION 5. AFFIRMATIVE
COVENANTS............................................. 32
5.1. Financial
Statements.............................................. 32
5.2. Payment of
Obligations............................................ 33
5.3. Conduct of Business and Maintenance of
Existence.................. 33
5.4.
Notices...........................................................
34
5.5. Status of
Obligations............................................. 35
5.6. Maintenance of
Property........................................... 35
5.7. Payment of
Taxes.................................................. 35
5.8. Use of
Proceeds................................................... 35
SECTION 6. NEGATIVE
COVENANTS................................................ 35
6.1. Negative
Pledge................................................... 35
6.2. Consolidations, Mergers and Sales of
Assets....................... 38
6.3. Net
Worth.........................................................
38
SECTION 7. EVENTS OF
DEFAULT................................................. 38
SECTION 8. THE
AGENTS........................................................
40
8.1.
Appointment.......................................................
40
8.2. Delegation of
Duties.............................................. 41
8.3. Exculpatory
Provisions............................................ 41
8.4. Reliance by Administrative
Agent.................................. 41
8.5. Notice of
Default................................................. 41
8.6. Non-Reliance on Administrative Agent and Other
Banks.............. 42
8.7.
Indemnification...................................................
42
8.8. Administrative Agent in Its Individual
Capacity................... 43
8.9. Successor Administrative
Agent.................................... 43
SECTION 9.
MISCELLANEOUS.....................................................
43
9.1. Amendments and
Waivers............................................ 43
9.2.
Notices...........................................................
44
9.3. No Waiver; Cumulative
Remedies.................................... 45
9.4. Survival of Representations and
Warranties........................ 45
9.5. Payment of Expenses and
Taxes..................................... 46
9.6. Successors and Assigns; Participations; Purchasing
Banks.......... 46
9.7. Dissemination of Information;
Confidentiality..................... 48
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9.8.
Adjustments.......................................................
49
9.9.
Counterparts......................................................
50
9.10.
Severability......................................................
50
9.11.
Integration.......................................................
50
9.12. GOVERNING
LAW..................................................... 50
9.13. Submission To Jurisdiction;
Waivers............................... 50
9.14. WAIVERS OF JURY
TRIAL............................................. 51
9.15. USA PATRIOT
Act................................................... 51
SCHEDULES
I. Commitments and Bank Information
II. List of Significant Subsidiaries
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Competitive Bid Note
B-1-A Form of Opinion of Counsel to the Company
B-1-B Form of Opinion of Shearman & Sterling LLP
B-2 Form of Opinion of Simpson Thacher & Bartlett LLP
C Form of Commitment Transfer Supplement
D-1 Form of Officer's Certificate
D-2 Form of Secretary's Certificate
E Form of Incumbency Certificate
F Form of Borrowing Notice
G Form of Competitive Bid Request
H Form of Notice of Competitive Bid Request
I Form of Competitive Bid
J Form of Competitive Bid Accept/Reject Letter
K Form of Exemption Certificate
iii
<PAGE>
5-YEAR CREDIT AGREEMENT, dated as of December 6, 2006, among
CIT
GROUP INC., a Delaware corporation (the "Company"), the several
banks and other
financial institutions from time to time on Schedule I to this
Agreement (the
"Banks"), CITIGROUP GLOBAL MARKETS INC. and BARCLAYS CAPITAL,
acting as joint
lead arrangers and bookrunners (in such capacity, the "Joint
Lead Arrangers"),
BARCLAYS BANK PLC, as syndication agent (in such capacities, the
"Syndication
Agent"), BANK OF AMERICA, N.A. and JPMORGAN CHASE BANK, N.A.,
as
co-documentation agents (in such capacity, the "Co-Documentation
Agents") and
CITIBANK, N.A., as administrative agent (in such capacity, the
"Administrative
Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested $1,000,000,000 in senior
unsecured revolving credit facilities from the Banks for general
corporate
purposes; and
WHEREAS, the Banks are willing to provide the requested
senior
unsecured revolving credit facilities on the terms and
conditions set forth
herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following
terms
shall have the following meanings:
"Additional Bank": as defined in subsection 2.1(c)(ii).
"Additional Bank Agreement": as defined in subsection
2.1(c)(ii).
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person that directly,
or
indirectly through one or more intermediaries, controls, is
controlled by,
or is under common control with, such Person.
"Agents": the collective reference to the Administrative Agent,
the
Syndication Agent, the Co-Documentation Agents and the Joint
Lead
Arrangers.
"Aggregate Available Commitment": at any time, the excess, if
any,
of (a) the Aggregate Commitment over (b) the aggregate principal
amount of
all Loans then outstanding.
"Aggregate Commitment": the aggregate amount of the Banks'
Commitments.
"Agreement": this 5-Year Credit Agreement, as amended,
supplemented
or otherwise modified from time to time.
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2
"Agreement Accounting Principles": GAAP applied in a manner
consistent with those principles used in the preparation of the
financial
statements referred to in subsection 3.1.
"Applicable Eurodollar Margin": at any time, the rate per annum
set
forth in the column with the heading "Eurodollar Rate Loan
Margin" in the
pricing grid set forth in subsection 2.10.
"Applicable Facility Fee Rate": at any time, the rate per annum
set
forth in the column with the heading "Facility Fee" in the
pricing grid
set forth in subsection 2.10.
"Applicable Margin": as defined in subsection 2.10.
"Applicable Rate": as defined in subsection 2.10.
"Applicable Utilization Fee Rate": for each calendar quarter
ending
on a Fee Payment Date (or such shorter period beginning with the
date
hereof or ending with the Termination Date) in which the average
daily
aggregate principal amount of the Loans outstanding for such
calendar
quarter or period is in excess of 50% of the average daily
Aggregate
Commitment for such calendar quarter or period, the rate per
annum set
forth in the column with the heading "Utilization Fee (>50%)"
in the
pricing grid set forth in subsection 2.10.
"Banks": as defined in the preamble hereto and any Person
becoming
party hereto as a lender pursuant to Section 9.6(c).
"Barclays": Barclays Bank PLC.
"Base Rate": a fluctuating interest rate per annum in effect
from
time to time, which rate per annum shall at all times be equal
to the
highest of: (a) the rate of interest announced publicly by
Citibank in New
York, New York, from time to time, as Citibank's base rate; (b)
the sum
(adjusted to the nearest 1/4 of 1% or, if there is no nearest
1/4 of 1%,
to the next higher 1/4 of 1%) of (i) 1/2 of 1% per annum, plus
(ii) the
rate obtained by dividing (A) the latest three-week moving
average of
secondary market morning offering rates in the United States
for
three-month certificates of deposit of major United States money
market
banks, such three-week moving average (adjusted to the basis of
a year of
360 days) being determined weekly on each Monday (or, if such
day is not a
Business Day, on the next succeeding Business Day) for the
three-week
period ending on the previous Friday by Citibank on the basis of
such
rates reported by certificate of deposit dealers to and
published by the
Federal Reserve Bank of New York or, if such publication shall
be
suspended or terminated, on the basis of quotations for such
rates
received by Citibank from three New York certificate of deposit
dealers of
recognized standing selected by Citibank, by (B) a percentage
equal to
100% minus the average of the daily percentages specified during
such
three-week period by the Board of Governors of the Federal
Reserve System
(or any successor) for determining the maximum reserve
requirement
(including but not limited to, any emergency, supplemental or
other
marginal reserve requirement) for Citibank with respect to
liabilities
consisting of or including (among other liabilities) three-month
U.S.
dollar
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3
non-personal time deposits in the United States, plus (iii) the
average
during such three-week period of annual assessment rates
estimated by
Citibank for determining the then current annual assessment
payable by
Citibank to the Federal Deposit Insurance Corporation (or any
successor)
for insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal Funds
Effective Rate.
"Base Rate Loan": any Revolving Credit Loan bearing interest at
a
rate determined by reference to the Base Rate in accordance with
Section
2.
"Borrowing": a group of Loans of a single type made by the
Banks
(or, in the case of a Competitive Bid Borrowing, by the Bank or
Banks
whose Competitive Bids have been accepted pursuant to subsection
2.3) on a
single date and as to which a single Interest Period is in
effect.
"Borrowing Date": a date on which a Borrowing is made
hereunder.
"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.
"Citibank": Citibank, N.A.
"Closing Date": the date on which the conditions precedent set
forth
in subsection 4.1 are satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time
to
time.
"Co-Documentation Agents": as defined in the preamble
hereto.
"Commitment": as to any Bank, the obligation of such Bank to
make
Revolving Credit Loans to the Company hereunder in an aggregate
principal
amount at any one time outstanding not to exceed the amount set
forth
opposite such Bank's name on Schedule I or in any assignment
and
acceptance to which any Bank may be a party, as the same may be
increased
from time to time in accordance with subsection 2.1(c) or
decreased or
terminated from time to time in accordance with subsection
2.7.
"Commitment Increase Supplement": as defined in subsection
2.1(c)(ii).
"Commitment Percentage": as to any Bank, (a) at any time prior
to
the expiration or termination of the Commitments (expressed as
a
percentage), the ratio of such Bank's Commitment to the
Aggregate
Commitment, and (b) at any time after the expiration or
termination of the
Commitments (expressed as a percentage), the ratio of (x) the
aggregate
principal amount of such Bank's Loans then outstanding to (y)
the
aggregate principal amount of the Loans then outstanding.
"Commitment Period": the period from and including the last to
occur
of (i) the Closing Date and (ii) December 6, 2006 to but not
including the
Termination Date or such earlier date on which the Aggregate
Commitment
shall terminate as provided herein.
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4
"Commitment Transfer Supplement": as defined in subsection
9.6(c)
hereto.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company
within the
meaning of Section 4001 of ERISA or is part of a group which
includes the
Company and which is treated as a single employer under Section
414 of the
Code.
"Competitive Bid": an offer by a Bank to make a Competitive Bid
Loan
pursuant to subsection 2.3.
"Competitive Bid Accept/Reject Letter": a notification made by
the
Company pursuant to subsection 2.3(d) in the form of Exhibit
J.
"Competitive Bid Borrowing": a Borrowing consisting of a
Competitive
Bid Loan or concurrent Competitive Bid Loans from the Bank or
Banks whose
Competitive Bids for such Borrowing have been accepted by the
Company
under the bidding procedure described in subsection 2.3.
"Competitive Bid Loan": a Loan made by a Bank to the Company
pursuant to the bidding procedure described in subsection 2.3.
Each
Competitive Bid Loan shall be a Eurodollar Competitive Bid Loan
or a Fixed
Rate Loan.
"Competitive Bid Maturity Date": as to each Competitive Bid
Loan, the maturity date specified by the Company for such
Competitive
Bid Loan in the related Competitive Bid Request.
"Competitive Bid Rate": as to any Competitive Bid made by a
Bank pursuant to subsection 2.3(b), (i) in the case of a
Eurodollar
Competitive Bid Loan, the Margin, and (ii) in the case of a
Fixed Rate
Loan, the fixed rate of interest offered by the Bank making
such
Competitive Bid.
"Competitive Bid Request": a request made pursuant to subsection
2.3
in the form of Exhibit G.
"Contractual Obligation": as to any Person, any provision of
any
security issued by such Person or of any agreement, instrument
or other
undertaking to which such Person is a party or by which it or
any of its
property is bound.
"Debt Ratings": the collective reference to LT Ratings and
ST
Ratings. The Debt Ratings shall be determined from the most
recent public
announcement of any changes in the Debt Ratings. If the rating
system of
S&P or Moody's shall change, the Company and the
Administrative Agent
shall negotiate in good faith to amend this definition to
reflect such
changed rating system and, pending the effectiveness of such
amendment
(which shall require the approval of Required Banks), the Debt
Rating
shall be determined by reference to the rating most recently in
effect
prior to such change.
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5
"Default": any of the events specified in Section 7, whether or
not
any requirement for the giving of notice, the lapse of time, or
both, or
any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United
States.
"ERISA": the Employee Retirement Income Security Act of 1974,
as
amended from time to time.
"Eurodollar Borrowing": a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Competitive Bid Borrowing": a Borrowing comprised
of
Eurodollar Competitive Bid Loans.
"Eurodollar Competitive Bid Loan": any Competitive Bid Loan
bearing
interest at a rate determined by reference to the Eurodollar
Rate in
accordance with the provisions of Section 2.
"Eurodollar Loan": any Eurodollar Competitive Bid Loan or
Eurodollar
Revolving Credit Loan.
"Eurodollar Rate": with respect to each day during each
Interest
Period pertaining to a Eurodollar Loan, the rate of interest
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 Page 3750 of the Dow Jones Market screen as of
11:00 A.M.,
London time, two Working Days prior to the beginning of such
Interest
Period. In the event that such rate does not appear on Page 3750
of the
Dow Jones Market screen (or otherwise on such screen), the
"Eurodollar
Rate" shall be determined by reference to such other publicly
available
service for displaying eurodollar rates as may be agreed upon by
the
Administrative Agent and the Company or, in the absence of such
agreement,
the "Eurodollar Rate" shall instead be the rate per annum equal
to the
average (rounded to the nearest 1/100th of 1%) of the respective
rates
notified to the Administrative Agent by each of the Reference
Banks as the
rate at which such Reference Bank is offered Dollar deposits at
or about
10:00 A.M., New York City time, two Business Days prior to the
beginning
of such Interest Period in the interbank eurodollar market where
the
eurodollar and foreign currency and exchange operations in
respect of its
Eurodollar Loans are then being conducted for delivery on the
first day of
such Interest Period for the number of days comprised therein
and in an
amount comparable to the amount of its Eurodollar Loan to be
outstanding
during such Interest Period.
"Eurodollar Revolving Credit Borrowing": a Borrowing comprised
of
Eurodollar Revolving Credit Loans.
"Eurodollar Revolving Credit Loan": any Revolving Credit
Loan
bearing interest at a rate determined by reference to the
Eurodollar Rate
in accordance with the provisions of Section 2.
<PAGE>
6
"Event of Default": any of the events specified in Section
7,
provided that any requirement for the giving of notice, the
lapse of time,
or both, or any other condition, has been satisfied.
"Federal Funds Effective Rate": for any day, a rate per annum
equal
to (i) the weighted average of the rates on overnight federal
funds
transactions with members of the Federal Reserve System arranged
by
federal funds brokers, as published for such day (or, if such
day is not a
Business Day, for the preceding Business Day) by the Federal
Reserve Bank
of New York; or (ii) if such rate is not so published for any
day which is
a Business Day, the average of the quotations for such day
at
approximately 10:00 A.M., New York City time, on such
transactions
received by the Administrative Agent from three federal funds
brokers of
recognized standing selected by it.
"Fee Payment Date": the last day of each calendar quarter,
commencing on December 31, 2006 and the Termination Date.
"Financing Lease": any lease of property, real or personal,
the
obligations of the lessee in respect of which are required in
accordance
with GAAP to be capitalized on a balance sheet of the
lessee.
"Fixed Rate Borrowing": a Borrowing comprised of Fixed Rate
Loans.
"Fixed Rate Loan": any Competitive Bid Loan bearing interest at
a
fixed percentage rate per annum (expressed in the form of a
decimal to no
more than four decimal places) specified by the Bank making such
Loan in
its Competitive Bid.
"GAAP": generally accepted accounting principles in the
United
States in effect from time to time.
"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 Agreement": any swap, cap, collar, floor or other
hedging
agreement in respect of interest rates or currency exchange
rates. For
purposes of this Agreement, the amount of any obligations or
liabilities
in respect of any Hedging Agreement shall be the amounts,
including any
termination payments, that would be required to be paid to a
counterparty
upon early termination (in accordance with customary industry
standards)
rather than any notional amount with regard to which payments
may be
calculated.
"Increasing Bank": as defined in subsection 2.1(c)(ii).
"Indebtedness": of a Person means such Person's (i) obligations
for
borrowed money, (ii) obligations representing the deferred
purchase price
of property or services other than accounts payable arising in
the
ordinary course of such Person's business, (iii) obligations,
whether or
not assumed, secured by Liens on property now or hereafter owned
or
acquired by such Person (other than carriers', warehousemen's,
mechanics',
repairmen's or other like nonconsensual statutory Liens arising
in the
ordinary course of
<PAGE>
7
business), (iv) obligations which are evidenced by notes,
acceptances, or
other similar instruments, (v) capitalized lease obligations,
(vi)
contingent obligations with respect to the Indebtedness of
another Person,
including but not limited to the obligation or liability of
another which
such Person assumes, guarantees, endorses, contingently agrees
to purchase
or provide funds for the payment of, or otherwise becomes
contingently
liable upon; provided that any Indebtedness owing by the Company
to any of
its Subsidiaries or by any Subsidiary of the Company to the
Company or by
any Subsidiary of the Company to any other Subsidiary of the
Company or
any contingent obligation in respect thereof shall not
constitute
Indebtedness for purposes of this Agreement, and (vii)
obligations for
which such Person is obligated in respect of a letter of credit.
For
purposes of this Agreement, Indebtedness shall not include (A)
any
indebtedness of such Person to the extent (I) such indebtedness
does not
appear on the financial statement of such Person, (II) such
indebtedness
is recourse only to certain assets of such Person, and (III) the
assets to
which such indebtedness is recourse only appear on the
financial
statements of such Person net of such indebtedness, or (B)
any
indebtedness or other obligations issued by any Person (or by a
trust or
other entity established by such Person or any of its
affiliates) which
are primarily serviced by the cash flows of a discrete pool
of
receivables, leases or other financial assets which have been
sold or
transferred by the Company or any Subsidiary in
securitization
transactions which, in accordance with GAAP, are accounted for
as sales
for financial reporting purposes. It is understood and agreed
that (1) the
amount of any Indebtedness described in clause (iii) for which
recourse is
limited to certain property of such Person shall be the lower of
(x) the
amount of the obligation and (y) the fair market value of the
property of
such Person securing such obligation, and (2) the amount of any
obligation
described in clause (vi) shall be the lower of (x) the stated
or
determinable amount of the primary obligation in respect of
which such
contingent obligation is made, and (y) the maximum amount for
which such
Person may be liable pursuant to the terms of the agreement
embodying such
contingent obligation unless such primary obligation and the
maximum
amount for which such Person may be liable are not stated or
determinable,
in which case the amount of such contingent obligation shall be
such
Person's maximum, reasonably anticipated liability in respect
thereof as
determined by such Person in good faith.
"Insolvency": with respect to any Multiemployer Plan, the
condition
that such Plan is insolvent within the meaning of Section 4245
of ERISA.
"Interest Payment Date": (a) as to any Base Rate Loan, the last
day
of each calendar quarter during which such Loan is outstanding
and the
Termination Date, and (b) as to any Loan other than a Base Rate
Loan, the
last day of the Interest Period applicable thereto and, in the
case of a
Eurodollar Loan with an Interest Period of more than three
months, each
day that would have been an Interest Payment Date for such Loan
had
successive Interest Periods of three months been applicable to
such Loan
and, in addition, the date the Company converts any Loan into a
Loan of a
different Type or having a different Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan,
(i)
initially, the period commencing on the borrowing or conversion
date, as
the case may be, with respect to such Eurodollar Loan and ending
one, two,
three or six months thereafter, as selected by
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8
the Company in its notice of borrowing or notice of conversion,
as the
case may be, given with respect thereto; and (ii) thereafter in
the case
of a Eurodollar Revolving Credit Loan, each period commencing on
the last
day of the next preceding Interest Period applicable to such
Eurodollar
Loan and ending one, two, three or six months thereafter, as
selected by
the Company by irrevocable notice to the Administrative Agent
not less
than three Working Days prior to the last day of the then
current Interest
Period with respect thereto; and
(b) with respect to any Fixed Rate Loan, the period commencing
on
the date of such Loan and ending on the date specified in the
Competitive
Bids in which the offer to make the Fixed Rate Loans comprising
such
Borrowing were extended, which shall not be earlier than fifteen
days
after the date of such Loan;
provided that all of the foregoing provisions relating to
Interest Periods
are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan
would
otherwise end on a day that is not a Working Day, such 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;
(B) any Interest Period that would otherwise extend beyond
the
Termination Date shall end on the Termination Date; and
(C) any Interest Period pertaining to a Eurodollar Loan 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.
"Joint Lead Arrangers": as defined in the preamble hereto.
"Lending Installation": any branch or office of any Bank
selected by
such Bank to be a Lending Installation in accordance with
subsection 2.21.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit
arrangement, encumbrance, lien (statutory or other), or
preference,
priority or other security agreement or preferential arrangement
of any
kind or nature whatsoever (including, without limitation, any
conditional
sale or other title retention agreement and any Financing Lease
having
substantially the same economic effect as any of the
foregoing).
"Loan": a Competitive Bid Loan, or a Revolving Credit Loan,
whether
made as a Eurodollar Loan, a Fixed Rate Loan or a Base Rate
Loan, as
permitted hereby.
"LT Rating": as of any date of determination, the rating as
determined by either S&P or Moody's (collectively, the "LT
Ratings") of
senior, unsecured long-term indebtedness for borrowed money of
the
Company, without third-party credit enhancement.
<PAGE>
9
"Margin": as to any Eurodollar Competitive Bid Loan, the
margin
(expressed as a percentage rate per annum in the form of a
decimal to no
more than four decimal places) to be added to or subtracted from
the
Eurodollar Rate to determine the interest rate applicable to
such Loan, as
specified in the Competitive Bid relating to such Loan.
"Material Adverse Effect": (a) a material adverse effect on
the
ability of the Company to perform its obligations under this
Agreement
(other than any such material adverse effect arising as a result
of a
general disruption in capital markets), or (b) a material
adverse effect
on the validity or enforceability against the Company of this
Agreement or
the material rights or remedies of the Administrative Agent or
the Banks
hereunder.
"Moody's": Moody's Investors Service, Inc. and its
successors.
"Multiemployer Plan": a Plan which is a multiemployer plan
as
defined in Section 4001(a)(3) of ERISA.
"Net Worth": at any date of determination, total
shareholders'
equity of the Company and its Subsidiaries on a consolidated
basis
determined in accordance with Agreement Accounting
Principles.
"Non-U.S. Lender": as defined in subsection 2.18(b).
"Other Bank": as defined in subsection 2.1(c)(i).
"Participant": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust,
joint stock company, trust, unincorporated association, joint
venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is
covered by ERISA and in respect of which the Company or a
Commonly
Controlled Entity is (or, if such plan were terminated at such
time, would
under Section 4069 of ERISA be deemed to be) an "employer" as
defined in
Section 3(5) of ERISA.
"Reference Banks": Citibank and Barclays.
"Register": as defined in subsection 9.6(d).
"Regulation U": Regulation U of the Board of Governors of
the
Federal Reserve System.
"Reorganization": with respect to any Multiemployer Plan,
the
condition that such plan is in reorganization within the meaning
of
Section 4241 of ERISA.
<PAGE>
10
"Reportable Event": any of the events set forth in Section
4043(c)
of ERISA, other than those events as to which the thirty day
notice period
is waived under subsection .23, .24, .26, .28 or .30 of PBGC
Reg. ss.4043.
"Required Banks": at a particular time, Banks whose
Commitment
Percentages aggregate at least 51% or, if the Aggregate
Commitment has
been terminated or for purposes of any decision to accelerate
the Loans
pursuant to Section 7, Banks in the aggregate holding at least
51% of the
aggregate unpaid principal amount of the outstanding Loans.
"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
final
determination of an arbitrator or a court or other Governmental
Authority,
in each case applicable to or binding upon such Person or any
material
portion of its property or to which such Person or any material
portion of
its property is subject.
"Responsible Officer": the chief executive officer, the vice
chairman, the president, any vice president of the Company or,
with
respect to financial matters, (a) the chief financial officer of
the
Company, (b) the treasurer of the Company, or (c) the controller
of the
Company.
"Revolving Credit Borrowing": a Borrowing consisting of
simultaneous
Revolving Credit Loans from each of the Banks.
"Revolving Credit Loan": a revolving credit loan made by a Bank
to
the Company pursuant to subsection 2.1. Each Revolving Credit
Loan shall
be a Eurodollar Revolving Credit Loan or a Base Rate Loan.
"SEC": the Securities and Exchange Commission and any succeeding
or
analogous governmental body or agency.
"S&P": Standard and Poor's Ratings Services, a division of
The
McGraw Hill Companies, Inc., and its successors.
"Significant Subsidiaries": (i) any Subsidiary listed on
Schedule II
attached hereto, and (ii) any other Subsidiary which fits the
definition
of Significant Subsidiary contained in Rule 1-02 of Regulation
S-X
promulgated by the SEC, other than a Subsidiary that is a
special purpose
entity formed for the purpose of securitizing, selling for
securitization
or otherwise facilitating the securitization of assets of the
Company or
any other Subsidiary.
"Single Employer Plan": any Plan which is covered by Title IV
of
ERISA, but which is not a Multiemployer Plan.
"ST Rating": as of any date of determination, the rating as
determined by either S&P or Moody's (collectively, the "ST
Ratings") of
senior, unsecured short-term
<PAGE>
11
indebtedness for borrowed money of the Company, without
third-party credit
enhancement.
"Subsidiary": as to any Person, a corporation, partnership or
other
entity of which shares of stock or other ownership interests
having
ordinary voting power (other than stock or such 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 managers of
such
corporation, partnership or other entity are at the time owned,
or the
management of which is otherwise controlled, directly or
indirectly
through one or more intermediaries, or both, by such Person.
Unless
otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of
the
Company.
"Syndication Agent": as defined in the preamble hereto.
"Termination Date": December 6, 2011.
"Tranche": the collective reference to Loans or portions thereof
the
Interest Periods with respect to all of which begin on the same
date and
end on the same later date (whether or not such Loans shall
originally
have been made on the same day).
"Transfer Effective Date": as defined in subsection 9.6(c)
hereto.
"Transferee": as defined in subsection 9.7(a).
"Type": when used in respect of any Loan or Borrowing, means
the
Rate by reference to which interest on such Loan or on the
Loans
comprising such Borrowing is determined. For purposes hereof,
"Rate" shall
include the Eurodollar Rate, the Base Rate and any fixed
rate.
"United States": the United States of America.
"Utilization Fee": as defined in subsection 2.6.
"Working Day": any Business Day on which dealings in U.S.
dollars
and exchange between banks may be carried on in London,
England.
1.2. Other Definitional Provisions. (a) Unless otherwise
specified
therein, 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 the
Company 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
<PAGE>
12
particular provision of this Agreement, and Section, subsection,
Schedule and
Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally
applicable to both the singular and plural forms of such
terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1. Commitments. (a) Subject to the terms and conditions
hereof,
each Bank severally agrees to make Revolving Credit Loans to the
Company from
time to time during the Commitment Period in an aggregate
principal amount at
any one time outstanding, which does not exceed the amount of
such Bank's
Commitment. Notwithstanding anything to the contrary contained
in this
subsection 2.1, at no time shall the sum of (A) the outstanding
aggregate
principal amount of all Revolving Credit Loans made by all Banks
plus (B) the
outstanding aggregate principal amount of all Competitive Bid
Loans made by all
Banks, exceed the Aggregate Commitment. During the Commitment
Period the Company
may borrow, pay or prepay and reborrow hereunder, all in
accordance with the
terms and conditions set forth in this Agreement.
(b) The Revolving Credit Loans may from time to time be
Eurodollar
Revolving Credit Loans and/or Base Rate Loans, as determined by
the Company and
notified to the Administrative Agent in accordance with
subsections 2.2 and 2.9,
provided that no Loan shall be made as a Eurodollar Revolving
Credit Loan after
the day that is one month prior to the Termination Date.
(c) (i) Notwithstanding anything to the contrary contained in
this
Agreement, the Company may request from time to time that the
Aggregate
Commitment be increased by an amount not less than $25,000,000
or a whole
multiple of $10,000,000 in excess thereof, provided that the
Company may only
request such an increase once in any six-month period and in no
event shall the
Aggregate Commitment exceed $1,500,000,000. Such increase in the
Aggregate
Commitment shall be effected as follows: the Company may (I)
request one or more
of the Banks to increase the amount of its Commitment (which
request shall be in
writing and sent to the Administrative Agent to forward to such
Bank or Banks)
and/or (II) arrange for one or more banks or financial
institutions not a party
hereto (an "Other Bank") to become parties to and lenders under
this Agreement,
provided that (w) the Administrative Agent shall have approved
such Other Bank,
which approval shall not be unreasonably withheld, (x) the
minimum Commitment of
such Other Bank equals or exceeds $15,000,000 and (y) after
giving effect to
such increase, no Bank shall have a Commitment hereunder which
exceeds an amount
equal to 20% of the Aggregate Commitment. In no event may any
Bank's Commitment
be increased without the prior written consent of such Bank
(which consent may
be withheld in its sole discretion), and the failure of any Bank
to respond to
the Company's request for an increase shall be deemed a
rejection by such Bank
of the Company's request. The Aggregate Commitment may not be
increased if, at
the time of any proposed increase hereunder, a Default or Event
of Default has
occurred and is continuing, or either of the Company's LT
Ratings from Moody's
or S&P is less than A3 or A-, respectively. Upon any request
by the Company to
increase the Aggregate Commitment hereunder, the Company shall
be deemed to have
represented and
<PAGE>
13
warranted on and as of the date of such request that no Default
or Event of
Default has occurred and is continuing. Notwithstanding anything
contained in
this Agreement to the contrary, no Bank shall have any
obligation whatsoever to
increase the amount of its Commitment, and each Bank may, at its
option,
unconditionally and without cause, decline to increase its
Commitment.
(ii) If any Bank is willing, in its sole and absolute
discretion, to
increase the amount of its Commitment hereunder (such a Bank
hereinafter
referred to as an "Increasing Bank"), it shall enter into a
written agreement to
that effect with the Company and the Administrative Agent, in
form and substance
reasonably satisfactory to the Administrative Agent (a
"Commitment Increase
Supplement"), which agreement shall specify, among other things,
the amount of
the increased Commitment of such Increasing Bank. Upon the
effectiveness of such
Increasing Bank's increase in Commitment, Schedule I hereto
shall, without
further action, be deemed to have been amended as appropriate to
reflect the
increased Commitment of such Increasing Bank. Any Other Bank
which is willing to
become a party hereto and a lender hereunder and that has been
approved by the
Agent (which approval shall not be unreasonably withheld) shall
enter into a
written agreement with the Company and the Administrative Agent,
in form and
substance reasonably satisfactory to the Administrative Agent
(an "Additional
Bank Agreement"), which agreement shall specify, among other
things, its
Commitment hereunder. When such Other Bank becomes a Bank
hereunder as set forth
in the Additional Bank Agreement, Schedule I shall, without
further action, be
deemed to have been amended as appropriate to reflect the
Commitment of such
Other Bank. Upon the execution by the Administrative Agent, the
Company and such
Other Bank of such Additional Bank Agreement, such Other Bank
shall become and
be deemed a party hereto and a "Bank" hereunder for all purposes
hereof and
shall enjoy all rights and assume all obligations on the part of
the Banks set
forth in this Agreement, and its Commitment shall be the amount
specified in its
Additional Bank Agreement. Each Other Bank which executes and
delivers an
Additional Bank Agreement and becomes a party hereto and a
"Bank" hereunder
pursuant to such Additional Bank Agreement is hereinafter
referred to as an
"Additional Bank."
(iii) In no event shall an increase in a Bank's Commitment or
the
Commitment of an Other Bank pursuant to this subsection 2.1(c)
become effective
until the Administrative Agent shall have received a favorable
written opinion
of counsel for the Company, addressed to the Banks, with respect
to the matters
set forth in paragraphs 2 and 3 of Exhibit B-1-A as they relate
to this
Agreement and the borrowings hereunder after giving effect to
the increase in
the Aggregate Commitment resulting from the increase in such
Bank's Commitment
or the extension of a Commitment by such Other Bank. In no event
shall an
increase in a Bank's Commitment or the Commitment of an Other
Bank which results
in the Aggregate Commitment exceeding the amount which is
authorized at such
time in resolutions previously delivered to the Administrative
Agent become
effective until the Administrative Agent shall have received a
copy of the
resolutions, in form and substance satisfactory to the
Administrative Agent, of
the Board of Directors of the Company authorizing the borrowings
contemplated
pursuant to such increase, certified by the Secretary or an
Assistant Secretary
of the Company. Concurrently with the execution by an Increasing
Bank of a
Commitment Increase Supplement or by an Additional Bank of an
Additional Bank
Agreement, the Company shall make such borrowing from such
Increasing Bank or
Additional Bank, and/or shall make such prepayment of
outstanding Revolving
Credit Loans, as shall be required to cause the aggregate
outstanding principal
amount of Revolving Credit Loans owing to each Bank
<PAGE>
14
(including each such Increasing Bank and Additional Bank) to be
proportional to
such Bank's share of the Aggregate Commitment after giving
effect to any
increase thereof. The Company agrees to indemnify each Bank and
to hold each
Bank harmless from any loss or expense incurred as a result of
any such
prepayment in accordance with subsection 2.19, as
applicable.
(iv) No Other Bank may become an Additional Bank unless the
Administrative Agent and the Company consent (which consent of
the
Administrative Agent shall not be unreasonably withheld) thereto
by executing
the Additional Bank Agreement signed by such bank or financial
institution (or
counterparts thereof), but no consent of any of the other Banks
hereunder shall
be required therefor. In no event shall the Commitment of any
Bank be increased
by reason of any other bank or financial institution becoming an
Additional
Bank, or otherwise, but the Aggregate Commitment shall be
increased by the
amount of each Additional Bank's Commitment. Upon any Bank
entering into a
Commitment Increase Supplement or any Additional Bank becoming a
party hereto,
the Administrative Agent shall notify each other Bank thereof
and shall deliver
to each Bank a copy of the Additional Bank Agreement executed by
such Additional
Bank and the Commitment Increase Supplement executed by such
Increasing Bank.
2.2. Revolving Credit Borrowing Procedure. Subject to the terms
and
conditions hereof, the Company may request Revolving Credit
Loans during the
Commitment Period on any Working Day, if all or any part of the
requested
Revolving Credit Loans are to be initially Eurodollar Loans, or
on any Business
Day, otherwise, provided that the Company shall give the
Administrative Agent
irrevocable notice, substantially in the form of Exhibit F,
(which notice must
be received by the Administrative Agent prior to 10:00 A.M., New
York City time,
(a) three Working Days prior to the requested Borrowing Date, if
all or any part
of the requested Loans are to be initially Eurodollar Revolving
Credit Loans or
(b) on the Borrowing Date, otherwise), specifying (i) the amount
to be borrowed,
(ii) the requested Borrowing Date, (iii) whether the Borrowing
is to be of
Eurodollar Revolving Credit Loans, Base Rate Loans or a
combination thereof and
(iv) if the Borrowing is to be entirely or partly of Eurodollar
Revolving Credit
Loans, the amount of such Type of Loan and the length of the
initial Interest
Period therefor. Each Borrowing of Revolving Credit Loans shall
be in an amount
equal to (x) in the case of Base Rate Loans, $25,000,000 or a
whole multiple of
$5,000,000 in excess thereof (or, if the then Aggregate
Available Commitment is
less than $25,000,000, such lesser amount) and (y) in the case
of Eurodollar
Revolving Credit Loans, $25,000,000 or a whole multiple of
$5,000,000 in excess
thereof. Upon receipt of any such notice from the Company, the
Administrative
Agent shall promptly notify the Lending Installation of each
Bank thereof. Each
Bank will make the amount of its pro rata share of each
Borrowing of Revolving
Credit Loans available to the Administrative Agent at the office
of the
Administrative Agent specified in subsection 9.2 prior to 11:00
A.M., New York
City time, on the Borrowing Date requested by the Company in
funds immediately
available to the Administrative Agent. The Administrative Agent
shall make the
funds so received from the Banks immediately available to the
Company at the
Administrative Agent's aforesaid address or to an account
designated by the
Company.
2.3. Competitive Bid Borrowing Procedure. (a) To request
Competitive
Bids, the Company shall deliver to the Administrative Agent a
Competitive Bid
Request, substantially in the form of Exhibit G, to be received
by the
Administrative Agent (i) in the case of a Eurodollar Competitive
Bid Borrowing,
not later than 10:00 a.m., New York City time, four
<PAGE>
15
Working Days before a proposed Competitive Bid Borrowing and
(ii) in the case of
a Fixed Rate Borrowing, not later than 10:00 a.m., New York City
time, one
Business Day before a proposed Competitive Bid Borrowing. No
Base Rate Loan
shall be requested in, or made pursuant to, a Competitive Bid
Request. A
Competitive Bid Request that does not conform substantially to
the format of
Exhibit G may be rejected in the Administrative Agent's sole
discretion, and the
Administrative Agent shall promptly notify the Company of such
rejection by
telecopier. Such request shall in each case refer to this
Agreement and specify
(x) whether the Borrowing then being requested is to be a
Eurodollar Borrowing
or a Fixed Rate Borrowing, (y) the date of such Borrowing (which
shall be a
Business Day and, in the case of a Eurodollar Competitive Bid
Loan, a Working
Day) and the aggregate principal amount thereof, which shall be
a minimum
principal amount of $25,000,000 and in an integral multiple of
$5,000,000 (or an
aggregate principal amount equal to the remaining balance of the
available
Commitments) and which will not cause the aggregate principal of
all outstanding
Loans to exceed the Aggregate Commitment, and (z) the Interest
Period with
respect thereto (which may not end after the Termination Date).
The Competitive
Bid Maturity Date for each Competitive Bid Loan shall be the
date set forth
therefor in the relevant Competitive Bid Request, which date
shall be not less
than fifteen days after the date of the Competitive Bid
Borrowing and, in any
event, shall not be later than the Termination Date. Promptly
after its receipt
of a Competitive Bid Request that is not rejected as aforesaid,
the
Administrative Agent shall invite by telecopier (in the form set
forth in
Exhibit H) the Banks to bid, on the terms and conditions of this
Agreement, to
make Competitive Bid Loans pursuant to the Competitive Bid
Request.
(b) Each Bank may, in its sole and absolute discretion, make one
or
more Competitive Bids to the Company responsive to a Competitive
Bid Request.
Each Competitive Bid by a Bank must be received by the
Administrative Agent via
telecopier, in the form of Exhibit I, (i) in the case of a
Eurodollar
Competitive Bid Borrowing, not later than 9:30 a.m., New York
City time, three
Working Days before a proposed Competitive Bid Borrowing and
(ii) in the case of
a Fixed Rate Borrowing, not later than 9:30 a.m., New York City
time, on the
Business Day of a proposed Competitive Bid Borrowing. Multiple
bids will be
accepted by the Administrative Agent. Competitive Bids that do
not conform
substantially to the format of Exhibit I may be rejected by the
Administrative
Agent after conferring with, and upon the instruction of, the
Company, and the
Administrative Agent shall notify the Bank making such
nonconforming bid of such
rejection as soon as practicable. Each Competitive Bid shall
refer to this
Agreement and specify (x) the principal amount (which shall be
in a minimum
principal amount of $5,000,000 and in integral multiples of
$1,000,000, which
may exceed such Bank's Commitment and which may equal the entire
principal
amount of the Competitive Bid Borrowing requested by the
Company) of the
Competitive Bid Loan or Loans that the applicable Bank is
willing to make to the
Company, (y) the Competitive Bid Rate or Rates at which such
Bank is prepared to
make the Competitive Bid Loan or Loans and (z) the Interest
Period and the last
day thereof. A Competitive Bid submitted by a Bank pursuant to
this paragraph
(b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the Company
by
telecopier of all the Competitive Bids made, the Competitive Bid
Rate and the
principal amount of each Competitive Bid Loan in respect of
which a Competitive
Bid was made and the identity of the Bank that made each bid.
The Administrative
Agent shall send a copy of all Competitive
<PAGE>
16
Bids (or a summary of such bids) to the Company for its records
as soon as
practicable after completion of the bidding process set forth in
this subsection
2.3.
(d) The Company may in its sole and absolute discretion,
subject
only to the provisions of this paragraph (d), accept or reject
any Competitive
Bid referred to in paragraph (c) above. The Company shall notify
the
Administrative Agent by telephone, confirmed by telecopier 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 the bids referred to in
paragraph (c) above,
(x) in the case of a Eurodollar Competitive Bid Borrowing, not
later than 10:30
a.m., New York City time, three Business Days before a proposed
Competitive Bid
Borrowing and (y) in the case of a Fixed Rate Borrowing, not
later than 10:30
a.m., New York City time, on the day of a proposed Competitive
Bid Borrowing;
provided, however, that (i) the failure by the Company to give
such notice shall
be deemed to be a rejection of all the bids referred to in
paragraph (c) above,
(ii) the Company shall not accept a bid made at a particular
Competitive Bid
Rate if the Company has decided to reject a bid made at a lower
Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids
accepted by the Company
shall not exceed the principal amount specified in the
Competitive Bid Request,
(iv) if the Company shall accept a bid or bids made at a
particular Competitive
Bid Rate and such bid or bids would cause the total amount of
accepted bids to
exceed the amount specified in the Competitive Bid Request, then
the aggregate
amount of the bids made at such Competitive Bid Rates shall be
reduced ratably
as necessary to eliminate such excess, and (v) except pursuant
to clause (iv)
above, no bid shall be accepted for a Competitive Bid Loan
unless such
Competitive Bid Loan is in a minimum principal amount of
$5,000,000 and an
integral multiple of $1,000,000; provided further, however, that
if a
Competitive Bid Loan must be in an amount less than $5,000,000
because of the
provisions of clause (iv) above, such Competitive Bid Loan may
be for a minimum
of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata
allocation of acceptances of portions of multiple bids at a
particular
Competitive Bid Rate pursuant to clause (iv) the amount shall be
rounded to
integral multiples of $1,000,000 in a manner which shall be in
the discretion of
the Company. A notice given by the Company pursuant to this
paragraph (d) shall
be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Bank
whether or not its Competitive Bid has been accepted (and if so,
in what amount
and at what Competitive Bid Rate) by telecopy sent by the
Administrative Agent,
and each successful bidder will thereupon become bound, subject
to the other
applicable conditions hereof, to make the Competitive Bid Loan
in respect of
which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within two
Business
Days after the date of any previous Competitive Bid Request.
(g) If the Administrative Agent shall elect to submit a
Competitive
Bid in its capacity as a Bank, it shall submit such bid directly
to the Company
one quarter of an hour earlier than the latest time at which the
other Banks are
required to submit their bids to the Administrative Agent
pursuant to paragraph
(b) above.
(h) All notices required by this subsection 2.3 shall be given
in
accordance with subsection 9.2.
<PAGE>
17
2.4. Repayment of Loans; Evidence of Debt. (a) The Company
unconditionally promises to pay to the Administrative Agent for
the account of
the relevant Bank (i) on the Termination Date (or such earlier
date on which the
Loans become due and payable pursuant to subsection 2.8 or
Section 7), the
unpaid principal amount of each Revolving Credit Loan made to it
by such Bank
and (ii) on the last day of the Interest Period thereof, the
unpaid principal
amount of each Competitive Bid Loan made to it by such Bank. The
Company shall
have no right to prepay any principal of any Competitive Bid
Loan. The Company
further agrees to pay interest in immediately available funds at
the office of
the Administrative Agent on the unpaid principal amount of the
Loans from time
to time from the date hereof until payment in full thereof at
the rates per
annum, and on the dates, set forth in subsection 2.12.
(b) Each Bank shall maintain in accordance with its usual
practice
an account or accounts evidencing the Indebtedness of the
Company to such Bank
resulting from the Loans made by such Bank to the Company,
including the amounts
of principal and interest payable and paid to such Bank from
time to time
hereunder.
(c) The Administrative Agent shall maintain the Register
pursuant to
subsection 9.6(d), and a subaccount for each Bank, in which
Register and
subaccounts (taken together) shall be recorded (i) the amount of
each Loan made
hereunder, whether such Loan is a Revolving Credit Loan or a
Competitive Bid
Loan, the Type of each Loan made and the Interest Period or
maturity date (if
any) applicable thereto, (ii) the amount of any principal or
interest due and
payable or to become due and payable from the Company to each
Bank hereunder and
(iii) the amount of any sum received by the Administrative Agent
hereunder from
the Company and each Bank's share thereof.
(d) The entries made in the Register and the accounts
maintained
pursuant to paragraphs (b) and (c) of this subsection shall be
prima facie
evidence of the items contained therein; provided, however, that
the failure of
any Bank or the Administrative Agent to maintain such account,
such Register or
such subaccount, as applicable, or any error therein, shall not
in any manner
affect the obligation of the Company to repay (with applicable
interest) the
Loan made to the Company by such Bank in accordance with the
terms of this
Agreement.
(e) If requested by any Bank for purposes of subsection 9.6(g),
the
Company shall execute and deliver, at the Company's expense, to
such Bank (and
deliver a copy thereof to the Administrative Agent) one or more
promissory notes
evidencing the Loans owing to such Bank pursuant to this
Agreement. Any such
note shall be substantially in the form of Exhibit A-1, or A-2,
as applicable,
and shall be entitled to all of the rights and benefits of this
Agreement.
2.5. Facility Fee; Administrative Agent's Fee. (a) The
Company
agrees to pay to the Administrative Agent for the account of
each Bank a
non-refundable facility fee at the Applicable Facility Fee Rate
per annum on the
daily average amount of such Bank's Commitment (whether borrowed
or unborrowed)
from and including the date hereof to and excluding the
Termination Date,
payable quarterly in arrears and on each Fee Payment Date.
(b) The Company will pay to the Administrative Agent, for its
own
account, an agent's fee equal to the amount agreed upon in
writing between the
Company and the Administrative Agent, payable to the
Administrative Agent in
such manner as the Company and
<PAGE>
18
the Administrative Agent may agree. Each Bank acknowledges that
the
Administrative Agent is being paid certain other fees for its
own account in
connection with the financing pursuant to this Agreement in
addition to the fees
described in this Agreement.
2.6. Utilization Fee. If the average daily aggregate
principal
amount of the Loans outstanding for the calendar quarter ending
on a Fee Payment
Date (or such shorter period beginning with the date hereof or
ending with the
Termination Date) is in excess of 50% of the average daily
Aggregate Commitment
for such calendar quarter or period, the Company agrees to pay
to the
Administrative Agent for the account of the Banks a
non-refundable utilization
fee (the "Utilization Fee") at the Applicable Utilization Fee
Rate on such
average daily aggregate principal amount of the Loans
outstanding during such
calendar quarter (or shorter period), payable in arrears on each
Fee Payment
Date.
2.7. Termination or Reduction of Commitments. The Company shall
have
the right, upon not less than three Business Days' notice to the
Administrative
Agent, to terminate the Aggregate Commitment or, from time to
time, to reduce
the amount of the Aggregate Commitment, provided that no such
termination or
reduction shall be permitted if, after giving effect thereto and
to any
prepayments made in respect of the Loans on the effective date
of such
termination or reduction, the aggregate principal amount of the
Loans then
outstanding would exceed the Aggregate Commitment then in
effect. Any such
reduction shall be in an amount equal to $10,000,000 or a whole
multiple of
$1,000,000 in excess thereof and shall reduce permanently the
Commitments then
in effect.
2.8. Optional Prepayments of Revolving Credit Loans. The Company
may
at any time and from time to time prepay the Revolving Credit
Loans, in whole or
in part, without premium or penalty, upon irrevocable notice to
the
Administrative Agent given not less that three Business Days
prior to the
prepayment date, in the case of prepayments of Eurodollar
Revolving Credit
Loans, or on the prepayment date, in the case of prepayments of
Base Rate Loans,
specifying the date and amount of prepayment and whether the
prepayment is of
Base Rate Loans, Eurodollar Revolving Credit Loans or a
combination thereof,
and, if of a combination thereof, the amount allocable to each.
If any such
notice is given, 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. Partial prepayments shall be in an aggregate
principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof.
Prepayments made
in respect of any Eurodollar Loans on any day other than the
last day of the
applicable Interest Period shall be accompanied by amounts, if
any, payable
pursuant to subsection 2.19(d). The Company shall not have the
right to prepay
any Competitive Bid Loan without the consent of the Bank that
made such
Competitive Bid Loan.
2.9. Conversion and Continuation Options. (a) The Company may
elect
from time to time to convert Eurodollar Revolving Credit Loans
to Base Rate
Loans by giving the Administrative Agent at least one Business
Day's prior
irrevocable notice of such election, provided that any such
conversion of
Eurodollar Revolving Credit Loans may only be made on the last
day of an
Interest Period with respect thereto. The Company may elect from
time to time to
convert Base Rate Loans to Eurodollar Revolving Credit Loans by
giving the
Administrative Agent at least three Working Days' prior
irrevocable notice of
such election. Any such notice of conversion to Eurodollar
Revolving Credit
Loans shall specify the length of the initial Interest
<PAGE>
19
Period or Interest Periods therefor. Upon receipt of such notice
the
Administrative Agent shall promptly notify each Bank thereof.
All or any part of
outstanding Eurodollar Revolving Credit Loans and Base Rate
Loans may be
converted as provided herein, provided that (i) no Loan may be
converted into a
Eurodollar Revolving Credit Loan when any Event of Default has
occurred and is
continuing unless the Administrative Agent or the Required Banks
have determined
that such a conversion is appropriate, (ii) any such conversion
may only be made
if, after giving effect thereto, subsection 2.11 shall not have
been contravened
and (iii) no Revolving Credit Loan may be converted into a
Eurodollar Revolving
Credit Loan after the date that is one month prior to the
Termination Date.
(b) Any Eurodollar Revolving Credit Loans may be continued as
such
upon the expiration of the then current Interest Period with
respect thereto by
the Company giving notice to the Administrative Agent, in
accordance with the
applicable provisions of the term "Interest Period" set forth in
subsection 1.1,
of the length of the next Interest Period to be applicable to
such Loans,
provided that no Eurodollar Revolving Credit Loan may be
continued as such (i)
when any Event of Default has occurred and is continuing and the
Administrative
Agent or the Required Banks have determined that such a
continuation is not
appropriate, (ii) if, after giving effect thereto, subsection
2.11 would be
contravened or (iii) after the date that is one month prior to
the Termination
Date. If the Company shall fail to give any required notice as
described above
in this paragraph or if such continuation is not permitted
pursuant to the
preceding proviso such Loans shall be automatically converted to
Base Rate Loans
on the last day of such then expiring Interest Period.
2.10. Applicable Interest Rate Margins, Facility Fee Rate
and
Utilization Fee. The Applicable Eurodollar Margin, the
Applicable Facility Fee
Rate and the Applicable Utilization Fee Rate (the Applicable
Eurodollar Margin,
the Applicable Facility Fee Rate and the Applicable Utilization
Fee Rate,
individually or collectively, the "Applicable Margin" or
"Applicable Rate")
shall be equal to the percentage per annum set forth below (in
basis points).
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------
Pricing LT Ratings ST Ratings Facility Eurodollar Rate Loan
Utilization
Level S&P/Moody's S&P/Moody's Fee Margin Fee (>
50%)
-------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
<C>
1 AA-/Aa3 and A-1/P-1 5.0 10.0 5.0
2 A+/A1 and A-1/P-1 6.0 14.0 5.0
3 A/A2 and A-1/P-1 7.0 18.0 5.0
4 A-/A3 N/A 8.5 24.0 7.5
5 BBB+/Baa1 N/A 10.0 32.5 12.5
-------------------------------------------------------------------------------------------------------
</TABLE>
For purposes of the foregoing, if the Debt Ratings fall
within
different pricing levels, then the highest of such pricing
levels (i.e., the
pricing level having the lowest numerical designation above)
shall apply.
2.11. Minimum Amounts of Tranches. All borrowings, conversions
and
continuations of Loans hereunder and all selections of Interest
Periods
hereunder shall be in such amounts and be made pursuant to such
elections so
that, after giving effect thereto, the aggregate
<PAGE>
20
principal amount of the Loans comprising each Tranche shall be
equal to
$25,000,000 or a whole multiple of $5,000,000 in excess
thereof.
2.12. Interest Rates and Payment Dates. (a) The Loans
comprising
each Eurodollar Borrowing shall bear interest for each day
during each Interest
Period with respect thereto at a rate per annum equal to (i) in
the case of each
Eurodollar Revolving Credit Loan, the Eurodollar Rate for the
Interest Period in
effect for such Borrowing plus the Applicable Margin and (ii) in
the case of
each Eurodollar Competitive Bid Loan, the Eurodollar Rate for
the Interest
Period in effect for such Borrowing plus the Margin offered by
the Bank making
such Loan and accepted by the Company pursuant to subsection
2.3.
(b) Each Base Rate Loan shall bear interest for each day
during
which such Base Rate Loan is outstanding at a rate per annum
equal to the Base
Rate.
(c) Each Fixed Rate Loan shall bear interest for each day
during
each Interest Period with respect thereto at a rate per annum
equal to the fixed
rate of interest offered by the Bank making such Loan and
accepted by the
Company pursuant to subsection 2.3.
(d) If all or a portion of (i) the principal amount of any Loan
or
(ii) any interest payable thereon, any fee or any other amount
payable pursuant
to the terms of this Agreement (other than attorneys' fees
incurred in
connection with the enforcement of the terms hereof) shall not
be paid when due
(whether at the stated maturity, by acceleration or otherwise),
such overdue
amount shall bear interest at a rate per annum which is (x) in
the case of
overdue principal, the rate that would otherwise be applicable
thereto pursuant
to the foregoing provisions of this subsection plus 2% or (y) in
the case of any
overdue interest, fee or other amount, the rate described in
paragraph (b) of
this subsection plus 2%, in each case from the date of such
non-payment until
such amount is paid in full (after as well as before
judgment).
(e) Interest on each Loan shall be payable in arrears on
each
Interest Payment Date applicable to such Loan, the Termination
Date and upon any
prepayment of such Loan, provided that interest accruing
pursuant to paragraph
(d) of this subsection shall be payable on demand.
2.13. Computation of Interest and Fees. (a) Interest on Base
Rate
Loans shall be calculated on the basis of a 365- (or 366-, as
the case may be)
day year for the actual days elapsed. Interest on Eurodollar
Loans, Fixed Rate
Loans and all fees shall be calculated on the basis of a 360-day
year for the
actual days elapsed. The Administrative Agent shall as soon as
practicable
notify the Company and the Banks of each determination of a
Eurodollar Rate. Any
change in the interest rate on a Loan resulting from a change in
the Base Rate
shall become effective as of the opening of business on the day
on which such
change in the Base Rate is announced. The Administrative Agent
shall as soon as
practicable notify the Company and the Banks of the effective
date and the
amount of each such change in interest rate. Notwithstanding
anything to the
contrary in this Agreement, interest paid or becoming due
hereunder shall in no
event exceed the maximum rate permitted by applicable law.
(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 Company
<PAGE>
21
and the Banks in the absence of manifest error. The
Administrative Agent shall,
at the request of the Company, deliver to the Company a
statement showing the
quotations used by the Administrative Agent in determining any
interest rate
pursuant to subsection 2.12.
(c) If any Reference Bank's Commitment shall terminate or all
its
Loans shall be assigned for any reason whatsoever, such
Reference Bank shall
thereupon cease to be a Reference Bank, and if, as a result of
the foregoing,
there shall only be one Reference Bank remaining, the
Administrative Agent
(after consultation with the Company and the Banks) shall, by
notice to the
Company and the Banks, designate another Bank acceptable to the
Company, as a
Reference Bank so that there shall at all times be at least two
Reference Banks.
(d) Each Reference Bank shall use its best efforts to
furnish
quotations of rates to the Administrative Agent as contemplated
hereby. If any
of the Reference Banks shall be unable or shall otherwise fail
to supply such
rates to the Administrative Agent upon its request, the rate of
interest shall,
subject to the provisions of subsection 2.14, be determined on
the basis of the
quotations of the remaining Reference Banks or Reference
Bank.
2.14. Inability to Determine Interest Rate. In the event that
prior
to the first day of any Interest Period the Administrative Agent
shall have
determined (which determination shall be conclusive and binding
upon the
Company) that, by reason of circumstances affecting the relevant
market,
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate
for such Interest Period, the Administrative Agent shall give
telex, telecopy or
telephonic notice thereof to the Company and the Banks as soon
as practicable
thereafter. If such notice is given (x) any Eurodollar Loans
(including any
Eurodollar Competitive Bid Loan) requested to be made on the
first day of such
Interest Period shall be made as Base Rate Loans, (y) any Loans
that were to
have been converted on the first day of such Interest Period to
Eurodollar Loans
shall be continued as Base Rate Loans and (z) any outstanding
Eurodollar Loans
shall be converted on the first day of such Interest Period to
Base Rate Loans.
Until such notice has been withdrawn by the Administrative
Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall
the Company have
the right to convert Loans to Eurodollar Loans.
2.15. Pro Rata Treatment and Payments. (a) Each Revolving
Credit
Borrowing by the Company from the Banks hereunder, each payment
by the Company
on account of any fee hereunder and, except as contemplated by
subsections
2.1(c)(iii), 2.20, 2.22 and 2.23 any reduction of the
Commitments of the Banks
shall be made pro rata according to the respective Commitment
Percentages of the
Banks. Except as contemplated by subsections 2.1(c)(iii), 2.20,
2.22 and 2.23,
each payment (including each prepayment) by the Company on
account of principal
of and interest on the Revolving Credit Loans shall be made pro
rata according
to the respective outstanding principal amounts of the Revolving
Credit Loans
then held by the Banks. Each payment of principal of any
Competitive Bid
Borrowing shall be allocated pro rata among the Banks
participating in such
Borrowing in accordance with the respective principal amounts of
their
outstanding Competitive Bid Loans comprising such Borrowing.
Each payment of
interest on any Competitive Bid Borrowing shall be allocated pro
rata among the
Banks participating in such Borrowing in accordance with the
respective amounts
of accrued and unpaid interest on their outstanding Competitive
Bid Loans
comprising such Borrowing. Each Bank agrees that in computing
such Bank's
portion of any Borrowing to
<PAGE>
22
be made hereunder, the Administrative Agent may, in its
discretion, round each
Bank's percentage of such Borrowing to the next higher or lower
whole dollar
amount. All payments (including prepayments) to be made by the
Company
hereunder, whether on account of principal, interest, fees or
otherwise, shall
be made without set off or counterclaim and shall be made prior
to 12:00 Noon,
New York City time, on the due date thereof to the
Administrative Agent, for the
account of the Banks, at the Administrative Agent's office
specified in
subsection 9.2, in Dollars and in immediately available funds.
The
Administrative Agent shall distribute such payments to the
Lending Installation
of the Banks promptly upon receipt in like funds as received. If
any payment
hereunder (other than payments on the Eurodollar Loans) becomes
due and payable
on a day other than a Business Day, such payment shall be
extended to the next
succeeding Business Day, and, with respect to payments of
principal, interest
thereon shall be payable at the then applicable rate during such
extension. If
any payment on a Eurodollar 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.
(b) Unless the Administrative Agent shall have been notified
in
writing by any Bank prior to the proposed time of any Borrowing
on any Borrowing
Date that such Bank will not make the amount that would
constitute its
Commitment Percentage of the Borrowing on such date available to
the
Administrative Agent, the Administrative Agent may assume that
such Bank has
made such amount available to the Administrative Agent on such
Borrowing Date,
and the Administrative Agent may, in reliance upon such
assumption, make
available to the Company a corresponding amount. If such amount
is made
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 Commitment
Percentage 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 the
date on which such Bank's Commitment Percentage 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 shall be
conclusive in
the absence of manifest error. If such Bank's Commitment
Percentage of such
Borrowing 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 notify the Company of such Bank's failure to fund, and
shall be entitled
to recover such amount with interest thereon at the rate per
annum applicable to
Base Rate Loans hereunder, on demand, from the Company.
2.16. Illegality. Notwithstanding any other provision herein, if
any
change in any Requirement of Law or in the interpretation or
application thereof
shall make it unlawful for any Bank to make or maintain
Eurodollar Loans as
contemplated by this Agreement, (a) the commitment of such Bank
hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate
Loans to Eurodollar Loans shall forthwith be canceled, (b) the
Loans of such
Bank then outstanding as Eurodollar Loans, if any, shall be
converted
automatically to Base Rate Loans on the respective last days of
the then current
Interest Periods with respect to such Loans or within such
earlier period as
required by law and (c) such Bank shall promptly notify the
Administrative Agent
of any such cancellation and conversion pursuant to this
subsection 2.16.
<PAGE>
23
2.17. Requirements of Law. (a) In the event that after the
date
hereof any change in any Requirement of Law or in the
interpretation or
application thereof by any Governmental Authority charged with
the
administration or interpretation thereof or compliance by any
Bank or the
Lending Installation of any Bank with any request or directive
(whether or not
having the force of law) from any such Governmental Authority
made subsequent to
the date hereof:
(i) shall subject any Bank or the Lending Installation of any
Bank
to any tax of any kind whatsoever with respect to this
Agreement, or any
Eurodollar Loan or Fixed Rate Loan made by it, or change the
basis of
taxation of payments to such Bank or the Lending Installation of
such Bank
in respect thereof (except for taxes covered by subsection 2.18
and
changes in the rate of tax on the net income of such Bank or the
Lending
Installation of such Bank);
(ii) shall impose, modify or hold applicable any reserve,
special
deposit, compulsory loan or similar requirement against assets
held by,
deposits or other liabilities in or for the account of,
advances, loans or
other extensions of credit by, or any other acquisition of funds
by, any
office of such Bank or the Lending Installation of such Bank
which is not
otherwise included in the determination of interest on the
Eurodollar Rate
Loans or Fixed Rate Loans hereunder; or
(iii) shall impose on such Bank or the Lending Installation of
such
Bank any other condition;
and the result of any of the foregoing is to increase the cost
to such Bank or
the Lending Installation of such Bank, by an amount which such
Bank deems to be
material, of making, converting into, continuing or maintaining
any Eurodollar
Loan or Fixed Rate Loan or to reduce any amount receivable
hereunder in respect
thereof then, in any such case, the Company shall pay such Bank,
within 30 days
after its demand, any additional amounts necessary to compensate
such Bank for
such increased cost or reduced amount receivable. If any Bank
becomes entitled
to claim any additional amounts pursuant to this subsection, it
shall promptly
notify the Company, through the Administrative Agent, of the
event by reason of
which it has become so entitled. A certificate as to any
additional amounts
payable pursuant to this subsection submitted by such Bank,
through the
Administrative Agent, to the Company shall set forth, in
reasonable detail, the
basis for such claim and the method of computation thereof and
be conclusive in
the absence of manifest error. This covenant shall survive the
termination of
this Agreement and the payment of all other amounts payable
hereunder.
Notwithstanding the foregoing, no Bank shall be entitled to
request compensation
under this Section with respect to any Competitive Bid Loan if
it shall have
been aware of the change giving rise to such request at the time
of submission
of such Bank's Competitive Bid pursuant to which such
Competitive Loan shall
have been made.
(b) In the event that any Bank shall have determined that any
change
in any Requirement of Law regarding capital adequacy or in the
interpretation or
application thereof or compliance by such Bank or the Lending
Installation of
such Bank or any corporation or other entity controlling such
Bank with any
request or directive regarding capital adequacy (whether or not
having the force
of law) from any Governmental Authority, in each case, made
subsequent to the
date hereof, does or shall have the effect of reducing the rate
of return on
such Bank's, such
<PAGE>
24
Lending Installation's or such corporation's or other entity's
capital as a
consequence of its obligations hereunder to a level below that
which such Bank,
such Lending Installation or such corporation or other entity
could have
achieved but for such change or compliance (taking into
consideration such
Bank's, such Lending Installation's or such corporation's or
other entity's
policies with respect to capital adequacy) by an amount deemed
by such Bank to
be material, then from time to time, after submission by such
Bank to the
Company of a written request therefor, the Company shall pay to
such Bank within
90 days after demand such additional amount or amounts as will
compensate such
Bank for such reduction. Each such request shall be accompanied
by such
information in respect of the basis for the claim made thereby
and the method of
computation thereof as such Bank shall at the time customarily
provide to other
borrowers deemed by it to be similarly situated. This covenant
shall survive the
termination of this Agreement and the payment of all other
amounts payable
hereunder.
(c) Each Bank, through the Administrative Agent, will
promptly
notify the Company of any event of which it has knowledge,
occurring after the
date hereof, which will entitle such Bank to compensation
pursuant to this
subsection. Notwithstanding the foregoing, no Bank shall be
entitled to any
compensation described in this Section unless, at the time it
requests such
compensation, it is the policy or general practice of such Bank
to request
compensation for comparable costs in similar circumstances under
comparable
provisions of other credit agreements for comparable customers
(as determined by
such Bank) unless specific facts or circumstances applicable to
the Company or
the transactions contemplated by this Agreement would alter such
policy or
general practice. If any Bank fails to give the notice described
in subsection
2.17(c) within 90 days after it obtains such actual knowledge of
the event
required to be described in such notice, such Bank shall, with
respect to any
compensation that would otherwise be owing to such Bank under
this subsection
2.17, only be entitled to payment for increased costs incurred
from and after
the date that such Bank does give such notice. If the Company
shall reimburse
any Bank pursuant to this Section for any cost and such Bank
shall subsequently
receive a refund in respect thereof, such Bank shall so notify
the Company and,
upon its request, will pay to the Company the portion of such
refund that such
Bank shall determine in good faith to be allocable to the costs
so reimbursed.
2.18. Taxes. (a) All payments made by or on behalf of the
Company
under this Agreement shall be made free and clear of, and
without deduction or
withholding for or on account of, any present or future income,
stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by
any
Governmental Authority, excluding, in the case of the
Administrative Agent and
each Bank, taxes based on or measured by net income imposed on
the
Administrative Agent or such Bank, as the case may be, as a
result of a present
or former connection between the jurisdiction of the government
or taxing
authority imposing such tax and the Administrative Agent or such
Bank (excluding
a connection arising solely from the Administrative Agent or
such Bank having
executed, delivered or performed its obligations or received a
payment under, or
enforced, this Agreement) or any political subdivision or taxing
authority
thereof or therein (all such non-excluded taxes, levies,
imposts, duties,
charges, fees, deductions and withholdings being hereinafter
called "Taxes"). If
any Taxes are required to be withheld from any amounts payable
to the
Administrative Agent or any Bank hereunder, the amounts so
payable to the
Administrative Agent or such Bank shall be increased to the
extent necessary to
yield to the Administrative Agent or such Bank (after payment of
all Taxes)
interest or any such other
<PAGE>
25
amounts payable hereunder at the rates or in the amounts
specified in this
Agreement; provided, however, that the Company shall not be
required to increase
any amounts payable to any Non-U.S. Lender (as defined in
subsection 2.18(b))
with respect to any Taxes that would not have been imposed but
for such Non-U.S.
Lender's failure to provide to the Company the Internal Revenue
Service Forms
required to be provided to the Company pursuant to subsection
2.18(b). Whenever
any Taxes are payable by the Company, promptly thereafter the
Company shall send
to the Administrative Agent for its own account or for the
account of such Bank,
as the case may be, a certified copy of an original official
receipt received by
the Company showing payment thereof. If such evidence of payment
is unavailable,
other evidence of such payment, satisfactory to the
Administrative Agent, shall
be provided by the Company. If the Company fails to pay any
Taxes when due to
the appropriate taxing authority or fails to remit to the
Administrative Agent
the required receipts or other required documentary evidence,
the Company shall
indemnify the Administrative Agent and the Banks for any
incremental taxes,
interest or penalties that may become payable by the
Administrative Agent or any
Bank as a result of any such failure.
(b) Each Bank represents and warrants to the Company that
under
currently applicable law and treaties no Taxes will be required
to be withheld
by the Company with respect to any payments to be made to such
Bank hereunder.
Each Bank that is not a United States person (as such term is
defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes
(each, a "Non-U.S.
Lender") agrees to deliver to the Company and the Administrative
Agent on or
prior to the Closing Date or, in the case of a Non-U.S. Lender
that is an
assignee or transferee of, or purchaser of a participation in,
an interest under
this Agreement pursuant to subsection 9.6 (unless such Non-U.S.
Lender was
already a Bank hereunder immediately prior to such assignment or
transfer), on
the date of such assignment or transfer to such Non-U.S. Lender,
(i) two (2)
accurate and complete original signed copies of Internal Revenue
Service Form
W-8ECI or Form W-8BEN (or successor forms) certifying that such
Non-U.S. Lender
is entitled as of such date to a complete exemption from United
States
withholding tax with respect to payments to be made under this
Agreement, or
(ii) if such Non-U.S. Lender is not a "bank" within the meaning
of Section
881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form
W-8ECI or Form W-8BEN (with respect to a complete exemption
under an income tax
treaty) (or any successor forms) pursuant to clause (i) above,
(x) a certificate
substantially in the form of Exhibit K (any such certificate, an
"Exemption
Certificate"), and (y) two (2) accurate and complete original
signed copies of
Internal Revenue Service Form W-8BEN (with respect to the
portfolio interest
exemption) (or successor form) certifying that such Non-U.S.
Lender is entitled
as of such date to a complete exemption from United States
withholding tax with
respect to payments of interest to be made under this Agreement.
In addition,
each Non-U.S. Lender agrees that from time to time after the
Closing Date, when
the passage of time or a change in facts or circumstances
renders the previous
certification obsolete or inaccurate in any material respect,
such Non-U.S.
Lender will deliver to the Company and the Administrative Agent
two (2) new
accurate and complete original signed copies of Internal Revenue
Service Form
W-8ECI, Form W-8BEN (with respect to a complete exemption under
an income tax
treaty), or Form W-8BEN (with respect to the portfolio interest
exemption) and
an Exemption Certificate, as the case may be, and such other
forms as may be
required in order to confirm or establish that such Non-U.S.
Lender is entitled
to a continued exemption from United States withholding tax with
respect to
payments under this Agreement, or such Non-U.S. Lender shall
immediately notify
the Company and the
<PAGE>
26
Administrative Agent of its inability to deliver any such form
or Exemption
Certificate, in which case such Non-U.S. Lender shall not be
required to deliver
any such form or Exemption Certificate. Notwithstanding anything
to the contrary
contained in this subsection 2.18, the Company agrees to pay any
additional
amounts and to indemnify each Non-U.S. Lender in the manner set
forth in
subsection 2.18(a) in respect of any United States Taxes
deducted or withheld by
them if such Taxes would not have been deducted or withheld but
for any change
after the Closing Date in any applicable law, treaty,
governmental rule,
regulation, guideline or order, or in the interpretation
thereof.
(c) If any Bank (or Participant or Assignee) or the
Administrative
Agent shall become aware that it is entitled to receive a refund
or credit (such
credit to include any increase in any foreign tax credit) as a
result of Taxes
(including any penalties or interest with respect thereto) as to
which it has
been indemnified by the Company pursuant to this subsection
2.18, it shall
promptly notify the Company of the availability of such refund
or credit and
shall, within 30 days after receipt of a request by the Company,
apply for such
refund or credit at the Company's expense, and in the case of
any application
for such refund or credit by the Company, shall, if legally able
to do so,
deliver to the Company such certificates, forms or other
documentation as may be
reasonably necessary to assist the Company in such application.
If any Bank (or
Participant or Assignee) or the Administrative Agent receives a
refund or credit
(such credit to include any increase in any foreign tax credit)
in respect to
any Taxes as to which it has been indemnified by the Company
pursuant to this
subsection 2.18, it shall promptly notify the Company of such
refund or credit
and shall, within 60 days after receipt of such refund or the
benefit of such
credit (such benefit to include any reduction of the taxes for
which any Bank
(or Participant or Assignee) or the Administrative Agent would
otherwise be
liable due to any increase in any foreign tax credit available
to such Bank (or
Participant or Assignee) or the Administrative Agent), repay the
amount of such
refund or benefit of such credit (with respect to the credit, as
determined by
the Bank, Participant or Assignee or Administrative Agent in its
sole,
reasonable judgment) to the Company (to the extent of amounts
that have been
paid by the Company under this subsection 2.18 with respect to
Taxes giving rise
to such refund or credit), plus any interest received with
respect thereto, net
of all reasonable out-of-pocket expenses of such Bank (or
Participant or
Assignee) or the Administrative Agent and without interest
(other than interest
actually received from the relevant taxing authority or other
Governmental
Authority with respect to such refund or credit); provided,
however, that the
Company, upon the request of such Bank (or Participant or
Assignee) or the
Administrative Agent, agrees to return the amount of such refund
or benefit of
such credit (plus interest) to such Bank (or Participant or
Assignee) or the
Administrative Agent in the event such Bank (or Participant or
Assignee) or the
Administrative Agent is required to repay the amount of such
refund or benefit
of such credit to the relevant taxing authority or other
Governmental Authority.
(d) The agreements in this subsection shall survive the
termination
of this Agreement and the payment of all other amounts payable
hereunder.
2.19. Indemnity. The Company 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 the Company in payment
when due of the
principal amount of or interest on any Eurodollar Loan or Fixed
Rate Loan, (b)
default by the Company in making a borrowing of, conversion into
or continuation
of any Eurodollar Loan, or any borrowing of a
<PAGE>
27
Fixed Rate Loan, after the Company
has given a notice requesting the same in accordance with the
provisions of this
Agreement, (c) default by the Company in making any prepayment
after the Company
has given a notice thereof in accordance with the provisions of
this Agreement
or (d) the making of a prepayment of a Eurodollar Loan or Fixed
Rate Loan on a
day which is not the last day of an Interest Period with respect
thereto,
including, in each case, any such loss or expense arising from
the reemployment
of funds obtained by it (or which it has arranged to obtain) or
from fees
payable to terminate the deposits from which such funds were
obtained (or which
it has arranged to obtain). Such indemnification shall exclude
any loss of
margin hereunder, but shall include, without limitation, costs
of terminating an
applicable Eurodollar Rate contract plus an amount equal to the
excess, if any,
as reasonably determined by such Bank, of (i) its cost of
obtaining the funds
for the Loan being paid, prepaid, converted or not borrowed,
converted or
continued or transferred or assigned (assumed to be the
Eurodollar Rate or, in
the case of a Fixed Rate Loan, the fixed rate of interest
applicable thereto)
for the period from the date of such payment, prepayment or
conversion or
failure to borrow, convert, or continue or transfer or
assignment to the last
day of the current or anticipated Interest Period for such Loan)
over (ii) the
amount of interest (as reasonably determined by such Bank) that
would be
realized by such Bank in reemploying the funds so paid, prepaid,
converted or
not borrowed, converted or continued or transferred or assigned
for such period
or Interest Period, as the case may be. Nothing in this Section
shall be deemed
to give the Company any right to prepay any Competitive Bid Loan
or other Loan
the prepayment of which is otherwise prohibited pursuant to the
terms of this
Credit Agreement. This covenant shall survive the termination of
this Agreement
and the payment of all other amounts payable hereunder.
2.20. Actions of Banks. Each Bank agrees to use reasonable
efforts
(including reasonable efforts to change the Lending Installation
for its Loans)
to avoid or minimize any illegality pursuant to subsection 2.16
or any amounts
which might otherwise be payable pursuant to subsection 2.17 or
2.18; provided,
however, that such efforts shall not cause the imposition on
such Bank of any
additional costs or legal or regulatory burdens deemed by such
Bank to be
material and shall not be otherwise disadvantageous to such Bank
in any way. In
the event that such reasonable efforts are insufficient to avoid
all such
illegality, all such events or circumstances or all amounts that
might be
payable pursuant to subsection 2.17 or 2.18, then the Company
may remove any
such Bank pursuant to subsection 2.22 or replace any such Bank
pursuant to
subsection 2.23.
2.21. Lending Installations. Each Bank may hold its Loans at
any
Lending Installation selected by it and may change its Lending
Installation from
time to time, provided that no such Bank shall be entitled to
receive any
greater amount under subsections 2.17, 2.18, 2.19 or 9.5 as a
result of a
transfer of any such Loans to a different office of such Bank
than it would be
entitled to immediately prior thereto unless such claim would
have arisen even
if such transfer had not occurred. All provisions of this
Agreement shall apply
to any such Lending Installation. Each Bank may, by written or
telex notice to
the Company and the Administrative Agent, designate a Lending
Installation
through which the Loans will be made by it and for whose account
payments are to
be made.
2.22. Removal of Banks. The Company shall be permitted, from
time to
time in its discretion, to remove Banks from this Agreement and
to reduce the
Aggregate Commitment; provided, that (a) the Aggregate
Commitment may not be
reduced below $500,000,000 as a
<PAGE>
28
result of removal of one or more Banks from this Agreement
pursuant to this
Section, (b) after giving effect to such removal, no Bank shall
have a
Commitment hereunder which exceeds an amount equal to 20% of the
Aggregate
Commitment and (c) a Bank may not be removed from this Agreement
at any time a
Default or an Event of Default exists and remains uncured or
unwaived under this
Agreement. If the Company elects to terminate the Commitment of
a Bank, it shall
give not less than 30 days written notice to the Administrative
Agent and such
Bank. On the effective date of such termination, the Company
shall pay to the
Administrative Agent, for the account of such Bank, in
immediately available
funds, an amount equal to all Loans and other amounts (including
accrued
interest and fees) owing to such Bank plus the amounts, if any,
owing to such
Bank under subsections 2.17, 2.18, 2.19 and 9.5. Notwithstanding
the removal of
any Bank pursuant to this subsection, such Bank shall continue
to have all such
rights as would survive the termination of this Agreement under
subsections
2.17, 2.18, 2.19 and 9.5.
2.23. Replacement of Banks. In the event that any Bank (a
"Notifying
Bank") (a) shall demand payment by the Company of any amount
pursuant to
subsection 2.17 or 2.18, (b) shall cause the suspension of the
availability of
any Type pursuant to subsection 2.16, (c) shall have excused
itself from funding
a Loan pursuant to subsection 2.16, (d) shall have failed to
make available a
Loan on the date on which it was obligated to do so or (e) shall
have failed to
consent to any waiver, amendment or modification of this
Agreement that has been
consented to by the Required Banks, the Company may, upon notice
to such
Notifying Bank and the Administrative Agent, nominate a new
financial
institution or group of financial institutions willing to
participate in the
facility in the place of such Notifying Bank ("Replacement
Bank"). Upon receipt
of such notice from the Company and upon the consent of the
Administrative Agent
as to the Replacement Bank, which consent shall not be
unreasonably withheld,
such Notifying Bank shall be obligated to transfer without
recourse,
representation, warranty (other than that it has not in any way
transferred,
assigned, encumbered, sold or conveyed its rights under its
Loans) or expense to
such Notifying Bank, all of its rights (other than rights that
would survive the
termination of this Agreement pursuant to subsections 2.17,
2.18, 2.19 and 9.5)
and obligations hereunder to the Replacement Bank; provided that
the Replacement
Bank satisfies all of the requirements of this Agreement and
pays such Notifying
Bank all amounts owing to such Notifying Bank under this
Agreement and the
Company pays such Notifying Bank any funding losses incurred
pursuant to
subsection 2.19, if any, as a result of such replacement. This
subsection 2.23
shall in no way affect the right of the Company to replace,
remove or add a Bank
pursuant to any other provision of this Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make
the
Loans hereunder, the Company hereby represents and warrants to
the
Administrative Agent and each Bank that:
3.1. Financial Condition. The consolidated balance sheet of
the
Company and its consolidated Subsidiaries as of December 31,
2005, and the
related consolidated statements of income and of cash flows for
the period ended
on such date, reported on by PricewaterhouseCoopers LLP, copies
of which have
heretofore been furnished to each Bank, present fairly the
consolidated
financial condition of the Company and its consolidated
<PAGE>
29
Subsidiaries as at such date, and the consolidated results of
their operations
and their consolidated cash flows for the fiscal year then
ended. The unaudited
consolidated balance sheet of the Company and its consolidated
Subsidiaries as
at September 30, 2006, and the related unaudited consolidated
statements of
income and cash flows for the nine-month period ended on such
date, present
fairly the consolidated financial condition of the Company and
its consolidated
Subsidiaries as at such date, and the consolidated results of
their operations
and their consolidated cash flows for the nine-month period then
ended (subject
to normal year-end audit adjustments). All such financial
statements, including
the related schedules and notes thereto, have been prepared in
accordance with
GAAP applied consistently throughout the periods involved
(except as approved by
such accountants or Responsible Officer, as the case may be, and
as disclosed
therein).
3.2. No Change. Since December 31, 2005 and until the date of
this
Agreement, except to the extent publicly disclosed on or prior
to December 31,
2005 through filings made by the Company with the SEC or press
releases issued
by the Company there has been no development or event which has
had or could
reasonably be expected to have a Material Adverse Effect.
3.3. Corporate Existence; Compliance with Law; Significant
Subsidiaries. Each of the Company and its Significant
Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws
of the
jurisdiction of its organization and (b) has the power and
authority to conduct
the business in which it is currently engaged. Each Significant
Subsidiary as of
September 30, 2006 is listed on Schedule II hereto.
3.4. Corporate Power; Authorization; Enforceable Obligations.
The
Company has the corporate power and authority to make, deliver
and perform this
Agreement and to borrow hereunder and has taken all necessary
corporate action
to authorize the borrowings on the terms and conditions of this
Agreement and to
authorize the execution, delivery and performance of this
Agreement. No consent
or authorization of, filing with or other act by or in respect
of, any
Governmental Authority or any other Person is required on the
part of the
Company in connection with the borrowings hereunder or with the
execution,
delivery, performance, validity or enforceability of this
Agreement. This
Agreement has been duly executed and delivered on behalf of the
Company. This
Agreement constitutes a legal, valid and binding obligation of
the Company
enforceable against the Company in accordance with its terms,
except as
enforceability may be limited by applicable bankruptcy,
insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of
creditors' rights generally and by general equitable principles
(whether
enforcement is sought by proceedings in equity or at law).
3.5. No Legal Bar. The execution, delivery and performance of
this
Agreement, the borrowings hereunder and the use of the proceeds
thereof will not
violate any Requirement of Law or material Contractual
Obligation of the Company
or of any of its Significant Subsidiaries and will not result
in, or require,
the creation or imposition of any Lien on any of its or their
material
respective properties or revenues pursuant to any such
Requirement of Law or
material Contractual Obligation.
3.6. No Material Litigation. (a) No litigation, investigation
or
proceeding of or before any arbitrator or Governmental Authority
is pending or,
to the knowledge of the
<PAGE>
30
Company, threatened by or against the Company or any of its
Significant
Subsidiaries or against any of its or their respective
properties or revenues,
in any case that involves this Agreement, the execution,
delivery and
performance of this Agreement or the Borrowings hereunder.
(b) No litigation, investigation or proceeding of or before
any
arbitrator or Governmental Authority is pending or, to the
knowledge of the
Company, threatened by or against the Company or any of its
Significant
Subsidiaries or against any of its or their respective
properties or revenues
which could reasonably be expected to result in a violation of
subsection 6.3,
except to the extent publicly disclosed prior to the date of
this Agreement
through filings made by the Company with the SEC or press
releases issued by the
Company.
3.7. No Defaul
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