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Exhibit 4.8
Execution Copy
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CIT GROUP INC.
----------
$2,100,000,000
5-YEAR CREDIT AGREEMENT
Dated as of April 13, 2005
----------
CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arranger and
Bookrunner,
BANC OF AMERICA SECURITIES LLC, as Joint Lead Arranger and
Bookrunner,
CITIBANK, N.A.,
as Administrative Agent
BANK OF AMERICA, N.A. and JPMORGAN CHASE BANK, N.A.,
as Syndication Agents
and
BARCLAYS BANK PLC
as 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.......................
15
2.4. Repayment of Loans; Evidence of Debt......................
17
2.5. Facility Fee; Administrative Agent's Fee..................
18
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.......................
19
2.10. Applicable Interest Rate Margins, Facility Fee Rate
and Utilization Fee..................................... 19
2.11. Minimum Amounts of Tranches...............................
20
2.12. Interest Rates and Payment Dates..........................
20
2.13. Computation of Interest and Fees..........................
21
2.14. Inability to Determine Interest Rate......................
21
2.15. Pro Rata Treatment and Payments...........................
22
2.16. Illegality................................................
23
2.17. Requirements of Law.......................................
23
2.18. Taxes ....................................................
25
2.19. Indemnity.................................................
27
2.20. Actions of Banks..........................................
27
2.21. Lending Installations.....................................
28
2.22. Removal of Banks..........................................
28
2.23. Replacement of Banks......................................
28
SECTION 3. REPRESENTATIONS AND
WARRANTIES................................. 29
3.1. Financial Condition.......................................
29
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..............................................
30
3.6. No Material Litigation....................................
30
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
i
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3.11. Investment Company Act....................................
31
3.12. Purpose of Loans..........................................
31
SECTION 4. CONDITIONS
PRECEDENT........................................... 31
4.1. Conditions to Initial Loans...............................
31
4.2. Conditions to Each Loan...................................
32
SECTION 5. AFFIRMATIVE
COVENANTS.......................................... 32
5.1. Financial Statements......................................
32
5.2. Payment of Obligations....................................
34
5.3. Conduct of Business and Maintenance of Existence..........
34
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............................................. 36
6.1. Negative Pledge...........................................
36
6.2. Consolidations, Mergers and Sales of Assets...............
38
6.3. Net Worth.................................................
38
SECTION 7. EVENTS OF
DEFAULT.............................................. 38
SECTION 8. THE
AGENTS..................................................... 41
8.1. Appointment...............................................
41
8.2. Delegation of Duties......................................
41
8.3. Exculpatory Provisions....................................
41
8.4. Reliance by Administrative Agent..........................
41
8.5. Notice of Default.........................................
42
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..................................................
44
9.1. Amendments and Waivers....................................
44
9.2. Notices...................................................
44
9.3. No Waiver; Cumulative Remedies............................
45
9.4. Survival of Representations and Warranties................
46
9.5. Payment of Expenses and Taxes.............................
46
9.6. Successors and Assigns; Participations; Purchasing
Banks................................................... 46
9.7. Dissemination of Information; Confidentiality.............
49
ii
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9.8. Adjustments...............................................
49
9.9. Counterparts..............................................
50
9.10. Severability..............................................
50
9.11. Integration...............................................
50
9.12. GOVERNING LAW.............................................
51
9.13. Submission To Jurisdiction; Waivers.......................
51
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 Form of Opinion of Counsel to the Company
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 April 13, 2005, 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 BANC OF AMERICA
SECURITIES, LLC,
acting as joint lead arrangers and bookrunners (in such
capacity, the "Joint
Lead Arrangers"), BANK OF AMERICA, N.A. and JPMORGAN CHASE BANK,
N.A., as
syndication agents (in such capacities, the "Syndication
Agents"), BARCLAYS BANK
PLC, as documentation agent (in such capacity, the
"Documentation Agent") 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 $2,100,000,000 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 Agents, the Documentation Agent 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
preceding 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 (a) in excess of 33.3% but less
than 66.7%
or (b) equal to or greater than 66.7%, as the case may be, 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 (>
33.3%)" or Utilization Fee (> 66.7%), as applicable, 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
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3
liabilities consisting of or including (among other
liabilities)
three-month U.S. dollar non-personal time deposits in the United
States,
plus (iii) the average during such three-week period of 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.
"BofA": Bank of America, N.A.
"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.
"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) April 13, 2005, 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.
"Documentation Agent": as defined in the preamble hereto.
"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.
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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.
"Existing 364-Day Agreement": the 364-Day Credit Agreement,
dated as
of April 14, 2004, among the Company, the several banks and
other
financial institutions parties thereto, J.P. Morgan Securities
Inc. and
Banc of America Securities LLC, as joint lead arrangers, BofA
and
Citibank, as syndication agents, Barclays, as documentation
agent and
JPMorgan Chase Bank, as administrative agent, as amended,
supplemented or
otherwise modified from time to time.
"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 June 30, 2005 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).
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7
"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 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,
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8
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 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.
"JPMorgan Chase Bank": JPMorgan Chase Bank, N.A.
"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).
<PAGE>
9
"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.
"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": BofA, Citibank, JPMorgan Chase Bank and
Barclays.
<PAGE>
10
"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. "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
<PAGE>
11
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 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 Agents": as defined in the preamble hereto.
"Termination Date": April 13, 2010.
"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.
<PAGE>
12
(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 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 $3,000,000,000. 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
<PAGE>
13
without the prior written consent of such Bank, 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 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 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
<PAGE>
14
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
(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 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
<PAGE>
15
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 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
<PAGE>
16
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 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.
<PAGE>
17
(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.
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.
<PAGE>
18
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 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
preceding a Fee Payment
Date (or such shorter period beginning with the date hereof or
ending with the
Termination Date) is (i) in excess of 33.3% but less than 66.7%
or (ii) equal to
or greater than 66.7%, as the case may be, 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
<PAGE>
19
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 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).
<PAGE>
20
<TABLE>
<CAPTION>
-------------------------------------------------------------------------------------------------------------
Eurodollar Utilization Utilization
Pricing LT Ratings ST Ratings Facility Rate Loan Fee (> Fee
(greater than
Level S&P/Moody's S&P/Moody's Fee Margin 33.3%) = to
66.7%)
-------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
<C>
1 AA-/Aa3 and A-1/P-1 5.0 15.0 5.0 10.0
2 A+/A1 and A-1/P-1 7.0 18.0 5.0 10.0
3 A/A2 and A-1/P-1 8.0 22.0 5.0 10.0
4 A-/A3 N/A 10.0 30.0 7.5 15.0
5 BBB+/Baa1 N/A 12.5 37.5 7.5 15.0
6 BBB/Baa2 N/A 17.5 55.0 7.5 15.0
7 BBB-/Baa3 N/A 25.0 62.5 12.5 25.0
-------------------------------------------------------------------------------------------------------------
</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 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).
<PAGE>
21
(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 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
<PAGE>
22
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 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 a 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
<PAGE>
23
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.
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
<PAGE>
24
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 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
Lending Installation's or such corporation's capital as a
consequence of its
obligations hereunder to a level below that which such Bank,
such Lending
Installation or such corporation could have achieved but for
such change or
compliance (taking into consideration such Bank's, such Lending
Installation's
or such corporation's policies with respect to capital adequacy)
by an amount
deemed by such Bank to be material, then from time to time,
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
<PAGE>
25
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 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 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
<PAGE>
26
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 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
<PAGE>
27
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 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 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
<PAGE>
28
material. 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 $1,000,000,000 as a 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 t
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