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CREDIT AGREEMENT
Among
SOUTHERN CALIFORNIA EDISON
COMPANY
The Several Lenders
from Time to Time Parties
Hereto
JPMORGAN CHASE BANK,
N.A.,
as Administrative
Agent
CITICORP NORTH AMERICA,
INC.,
as Syndication Agent
CREDIT SUISSE FIRST
BOSTON,
LEHMAN COMMERCIAL PAPER
INC., and
UNION BANK OF CALIFORNIA,
N.A.,
as Documentation
Agents
Dated as of February 1,
2005
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J.P. MORGAN SECURITIES
INC.
CITIGROUP GLOBAL MARKETS
INC.,
as Lead Arrangers and
Bookrunners
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Table of Contents
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SECTION 1. DEFINITIONS
........................................................................................1
1.1. DEFINED
TERMS...................................................................................1
1.2. OTHER DEFINITIONAL
PROVISIONS..................................................................11
SECTION 2. AMOUNT AND TERMS OF THE CREDIT
FACILITY...............................................................11
2.1. THE COMMITMENTS; INCREASE IN TOTAL
COMMITMENTS.................................................11
2.2. PROCEDURE FOR
BORROWING........................................................................12
2.3. FEES
......................................................................................13
2.4. REPAYMENT OF LOANS; EVIDENCE OF
DEBT...........................................................14
2.5. PREPAYMENTS AND TERMINATION OR REDUCTION OF
COMMITMENTS........................................15
2.6. CONVERSION AND CONTINUATION
OPTIONS............................................................15
2.7. MINIMUM AMOUNTS AND MAXIMUM NUMBER OF
TRANCHES.................................................16
2.8. INTEREST RATES AND PAYMENT
DATES...............................................................16
2.9. COMPUTATION OF INTEREST AND
FEES...............................................................16
2.10. INABILITY TO DETERMINE INTEREST
RATE...........................................................17
2.11. PRO RATA TREATMENT AND
PAYMENTS................................................................17
2.12.
ILLEGALITY.....................................................................................18
2.13. ADDITIONAL
COSTS...............................................................................18
2.14. TAXES
......................................................................................20
2.15.
INDEMNITY......................................................................................21
2.16. CHANGE OF LENDING
OFFICE.......................................................................22
2.17. REPLACEMENT OF LENDERS UNDER CERTAIN
CIRCUMSTANCES.............................................22
SECTION 3. LETTERS OF
CREDIT.....................................................................................23
3.1. GENERAL
......................................................................................23
3.2. NOTICE OF ISSUANCE, AMENDMENT, RENEWAL,
EXTENSION; CERTAIN CONDITIONS..........................23
3.3. EXPIRATION
DATE................................................................................23
3.4.
PARTICIPATIONS.................................................................................24
3.5.
REIMBURSEMENT..................................................................................24
3.6. OBLIGATIONS
ABSOLUTE...........................................................................25
3.7. DISBURSEMENT
PROCEDURES........................................................................26
3.8. INTERIM
INTEREST...............................................................................26
3.9. REPLACEMENT OF THE ISSUING
LENDER..............................................................26
SECTION 4. REPRESENTATIONS AND
WARRANTIES........................................................................27
4.1. FINANCIAL
CONDITION............................................................................27
4.2. NO
CHANGE......................................................................................27
4.3. CORPORATE
EXISTENCE............................................................................27
4.4. CORPORATE POWER; NO LEGAL
BAR..................................................................27
4.5. AUTHORIZATION;
ENFORCEABILITY..................................................................28
4.6. ERISA
......................................................................................28
4.7. NO MATERIAL
LITIGATION.........................................................................28
4.8. TAXES
......................................................................................28
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4.9. PURPOSE OF
LOANS...............................................................................29
4.10. NO
DEFAULT.....................................................................................29
4.11. ENVIRONMENTAL
MATTERS..........................................................................29
4.12.
PROJECTIONS....................................................................................29
4.13. FIRST MORTGAGE BOND;
INDENTURE.................................................................29
SECTION 5. CONDITIONS
PRECEDENT..................................................................................31
5.1. CONDITIONS OF
EFFECTIVENESS....................................................................31
5.2. CONDITIONS TO EACH
LOAN........................................................................32
SECTION 6. COVENANTS
........................................................................................33
6.1. FINANCIAL STATEMENTS;
CERTIFICATES.............................................................33
6.2. COMPLIANCE; MAINTENANCE OF
EXISTENCE...........................................................34
6.3. INSPECTION OF PROPERTY; BOOKS AND RECORDS;
DISCUSSIONS.........................................34
6.4. NOTICES
......................................................................................35
6.5. LIMITATION ON FUNDAMENTAL
CHANGES..............................................................35
6.6. AMENDMENT OF
INDENTURE.........................................................................36
6.7. DISPOSITION OF
PROPERTY........................................................................36
6.8. CONSOLIDATED CAPITALIZATION
RATIO..............................................................36
6.9. LIMITATION ON
LIENS............................................................................36
SECTION 7. EVENTS OF
DEFAULT.....................................................................................36
SECTION 8. THE ADMINISTRATIVE
AGENT..............................................................................39
8.1.
APPOINTMENT....................................................................................39
8.2. DELEGATION OF
DUTIES...........................................................................39
8.3. EXCULPATORY
PROVISIONS.........................................................................39
8.4. RELIANCE BY ADMINISTRATIVE
AGENT...............................................................40
8.5. NOTICE OF
DEFAULT..............................................................................40
8.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER
LENDERS.........................................40
8.7.
INDEMNIFICATION................................................................................41
8.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL
CAPACITY................................................41
8.9. SUCCESSOR ADMINISTRATIVE
AGENT.................................................................42
8.10. THE SYNDICATION AGENT AND DOCUMENTATION
AGENTS.................................................42
SECTION 9. MISCELLANEOUS
........................................................................................42
9.1. AMENDMENTS AND
WAIVERS.........................................................................42
9.2. NOTICES
......................................................................................43
9.3. NO WAIVER; CUMULATIVE
REMEDIES.................................................................43
9.4. SURVIVAL
......................................................................................44
9.5. PAYMENT OF EXPENSES AND
TAXES..................................................................44
9.6. TRANSFER
PROVISIONS............................................................................45
9.7. ADJUSTMENTS;
SET-OFF...........................................................................47
9.8.
COUNTERPARTS...................................................................................47
9.9.
SEVERABILITY...................................................................................48
9.10.
INTEGRATION....................................................................................48
9.11. GOVERNING
LAW..................................................................................48
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9.12. WAIVERS OF JURY
TRIAL..........................................................................48
9.13. SUBMISSION TO JURISDICTION;
WAIVERS............................................................48
9.14. RELEASES OF FIRST MORTGAGE
BOND................................................................49
9.15.
CONFIDENTIALITY................................................................................50
9.16. USA PATRIOT
ACT................................................................................50
SCHEDULES
1.1 Lending Offices and Commitments
EXHIBITS
A Form of Note
B Form of Exemption Certificate
C Form of Borrower Closing Certificate
D-1 Form of Legal Opinion of Assistant General Counsel of the
Borrower
D-2 Form of Legal Opinion of Special Counsel to the Borrower
D-3 Form of Opinion of Special Counsel to the Administrative
Agent
E Form of Assignment and Acceptance
F Form of Bond Delivery Agreement
G Form of New Lender Supplement
H Form of Commitment Increase Supplement
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CREDIT AGREEMENT, dated as of February 1, 2005,
among SOUTHERN CALIFORNIA EDISON COMPANY, a
California corporation (the "Borrower"), the several banks and
other financial institutions from time to time
parties hereto (the "Lenders"), CITICORP NORTH AMERICA, INC., as
syndication agent (in such capacity the
"Syndication Agent"), CREDIT SUISSE FIRST BOSTON, LEHMAN COMMERCIAL
PAPER INC. and UNION BANK OF CALIFORNIA, N.A.,
as documentation agents (in their respective capacities as such,
the "Documentation Agents"), and JPMORGAN CHASE
BANK, N.A., as administrative agent for the Lenders (in such
capacity, the "Administrative Agent").
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:
"ABR": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%)
equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. Any change in
the ABR due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day
of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"ABR Loans": Loans the rate of interest
applicable to which is based upon the ABR.
"Act": as defined in Section 9.16.
"Additional Costs": as defined in Section
2.13(a).
"Administrative Agent": as defined in the
preamble hereto.
"Affiliate": as to any Person, any other Person
which, directly or indirectly, is in control
of, is controlled by, or is under common control with,
such Person.
"Agents": the collective reference to the
Administrative Agent, the Syndication Agent and each
Documentation Agent.
"Agreement": this Credit Agreement, as the same
may be further amended, supplemented or
otherwise modified from time to time.
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"Applicable Margin": for any day, the applicable
rate per annum set forth under the relevant
column heading below, based upon the then most current
senior secured debt ratings (or, at any time
following the Unsecured Facility Option Date, the senior
unsecured debt ratings) of the Borrower issued
by S&P and Moody's, respectively:
Applicable Letter of
Applicable Margin for Credit
Facility Fee
Margin for Eurodollar Participation
Level Rating Rate
ABR Loans Loans Fee Rate
1 A+/A1 or higher 0.070%
0% 0.230% 0.230%
2 A/A2 0.090%
0% 0.260% 0.260%
3 A-/A3 0.100%
0% 0.400% 0.400%
4 BBB+/Baa1 0.125%
0% 0.500% 0.500%
5 BBB/Baa2 0.150%
0% 0.600% 0.600%
6 BBB-/Baa3 0.175%
0% 0.700% 0.700%
7 BB+/Ba1 0.200%
0% 0.800% 0.800%
8 Lower than 0.300%
0.075% 1.075% 1.075%
BB+/Ba1
Subject to the provisions of this paragraph
regarding split ratings, changes in the Applicable
Margin shall become effective on the date on which
S&P and/or Moody's changes its relevant rating. In
the event of split ratings, the higher rating shall
govern. In the event that, at any time, a rating is
not available from one of such rating agencies, the
Applicable Margin shall be determined on the basis
of the rating from the other rating agency. In the
event that, at any time, ratings from each such
rating agency are not available for companies generally,
the Applicable Margin shall be determined on
the basis of the last rating(s) made available. In the
event that, at any time, such ratings are not
available for the Borrower but are generally available
for other companies, then the Applicable Margin
shall be as for Level 8.
"Approved Fund": with respect to any Lender that
is a fund that invests in bank loans, any
other fund that invests in bank loans and is advised or
managed by the same investment advisor as such
Lender or by an affiliate of such investment advisor.
"Assignee": as defined in Section 9.6(c).
"Assignment and Acceptance": as defined in
Section 9.6(c).
"Board": the Board of Governors of the Federal
Reserve System (or any successor).
"Bond Delivery Agreement": the Bond Delivery
Agreement to be executed and delivered by the
Borrower and the Administrative Agent substantially in the
form of Exhibit F.
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in
a notice pursuant to Section 2.2 as a date on
which the Borrower requests the Lenders to make Loans
hereunder.
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"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,
except that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall mean any
Business Day (as defined above) on which
dealings in foreign currencies and exchange between banks
may be carried on in London, England and in
New York, New York.
"Closing Date": February 1, 2005.
"Code": the Internal Revenue Code of 1986, as
amended from time to time.
"Commitment": as to any Lender, the obligation
of such Lender to make Loans and to acquire
participations in Letters of Credit in the aggregate
principal and/or face amount set forth under the
heading "Commitment" opposite such Lender's name on
Schedule 1.1 or in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as
the same may be changed from time to time
pursuant to the terms hereof, including Section 2.1.
"Commitment Increase Amount": as defined in
Section 2.1(b).
"Commitment Increase Notice": as defined in
Section 2.1(b).
"Commitment Period": the period from and
including the Closing Date to the Termination Date.
"Commonly Controlled Entity": an entity, whether
or not incorporated, which is under common
control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single
employer under Section 414 of the Code.
"Consolidated Capital": at any time, the sum of,
without duplication, (i) Consolidated Total
Indebtedness plus (ii) the amount set forth opposite the
captions "shareholder's equity" and "preferred
stock" (or similar captions) on a consolidated balance
sheet of the Borrower prepared in accordance with
GAAP plus (iii) the outstanding principal amount of any
junior subordinated deferrable interest
debentures or similar securities issued by the Borrower or
any of its Subsidiaries after the Closing
Date.
"Consolidated Capitalization Ratio": on the last
day of any fiscal quarter, the ratio of (a)
Consolidated Total Indebtedness to (b) Consolidated
Capital.
"Consolidated Total Indebtedness": at any date,
the sum of (i) the aggregate principal amount
of all Indebtedness of the Borrower and its Subsidiaries
at such date determined on a GAAP consolidated
basis and (ii) without duplication, the aggregate
principal amount of all Indebtedness of any other
Persons at such date determined on a GAAP consolidated
basis to the extent the payment of such
Indebtedness is guaranteed by the Borrower or any of its
Subsidiaries.
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"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.
"Conversion Date": as defined in Section 2.6.
"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 Agents": as defined in the
preamble hereto.
"Dollars" and "$": dollars in lawful currency of
the United States of America.
"Environmental Laws": any and all federal,
state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees,
requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of
conduct concerning protection of the environment, as now
or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"Eurodollar Loans": Loans the rate of interest
applicable to which is based upon the
Eurodollar Rate.
"Eurodollar Rate": with respect to each day
during each Interest Period pertaining to a
Eurodollar Loan, the rate per annum (rounded upwards, if
necessary, to the next higher of 1/100th of 1%)
equal to the rate for Dollar deposits for a period equal
to such Interest Period commencing on the first
day of such Interest Period appearing on page 3750 of the
Telerate screen at or about 11:00 A.M., London
time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or
otherwise on such screen), the "Eurodollar Rate"
shall be determined by reference to such other comparable
publicly available service for displaying
eurodollar rates as may be selected by the Administrative
Agent or, in the absence of such availability,
by reference to the rate at which the Administrative Agent
is offered Dollar deposits at or about 11:00
A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the
interbank eurodollar market where its eurodollar and
foreign currency and exchange operations 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.
"Eurodollar Tranche": the collective reference
to Eurodollar Loans the then current 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).
Page 4
"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 Credit Agreement": the Borrower's
Credit Agreement dated as of December 18, 2003, as
amended as of September 3, 2004, and for which JPMorgan
Chase Bank acts as administrative agent.
"Exposure": with respect to any Lender at any
time, an amount equal to the amount of such
Lender's outstanding Loans and LC Exposure at such time.
"Facility Fee": the facility fee payable
pursuant to Section 2.3(a) at the Facility Fee Rate.
"Facility Fee Rate": the facility fee rate per
annum set forth in the definition of
"Applicable Margin".
"Federal Funds Effective Rate": for any day, 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 on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business
Day, the average of the quotations for the day
of such transactions received by the Administrative Agent
from three federal funds brokers of recognized
standing selected by it.
"First Mortgage Bond": the First and Refunding
Mortgage Bond issued by the Borrower to the
Administrative Agent pursuant to the Indenture in the
principal amount from time to time equal to the
Total Commitments.
"GAAP": generally accepted accounting principles
in the United States of America 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.
"Hedge Agreements": all interest rate swaps,
caps or collar agreements or similar arrangements
dealing with interest rates or currency exchange rates or
the exchange of nominal interest obligations,
either generally or under specific contingencies.
"Indebtedness": of any Person at any date,
without duplication, (a) all indebtedness of such
Person for borrowed money or for the deferred purchase
price of property or services (other than current
trade liabilities incurred in the ordinary course of
business and payable in accordance with customary
practices) or representing reimbursement obligations in
respect of letters of credit which have been
funded, (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or
similar instrument, (c) all indebtedness created or
arising under any conditional sale or title
retention agreement with respect to property acquired by
such Person (even though the rights and
Page 5
remedies of the seller or lender under such agreement in
the event of default are limited to
repossession or sale of such property), (d) all
obligations of such Person as lessee which are
capitalized in accordance with GAAP, (e) all direct and
indirect guarantee obligations (whether by
guarantee, reimbursement or indemnity or agreement to
maintain financial condition or solvency or
otherwise) of such Person in respect of any obligations of
the type described in the preceding clauses
(a) through (d) of any other Person, (f) all obligations
of the kind referred to in clauses (a) through
(d) above secured by (or for which the holder of such
obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become
liable for the payment of such obligation and
(g) for the purposes of Section 7(g) only, all obligations
of such Person in respect of Hedge Agreements
in an amount equal to the net amount that would be payable
by such Person upon the acceleration,
termination or liquidation thereof. Notwithstanding the
foregoing, with respect to the Borrower,
Indebtedness shall not include (i) notes outstanding
pursuant to those certain Rate Reduction
Certificates, Series 1997-1 issued by SCE Funding LLC, a
Subsidiary of the Borrower, (ii) obligations
under a Receivables Securitization of such Person, and
(iii) any junior subordinated deferrable interest
debentures or similar securities issued by the Borrower or
any of its Subsidiaries after the Closing
Date.
"Indenture": the Trust Indenture, dated as of
October 1, 1923 between the Borrower and The
Bank of New York and D.G. Donovan as trustees, as amended
and supplemented from time to time.
"Indenture Trustee": The Bank of New York, as
successor to Harris Trust and Savings Bank, and
any other successors thereto as trustee under the
Indenture.
"Interest Payment Date": (a) as to any ABR
Loan, the last day of each March, June, September
and December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to
any Eurodollar Loan, having an Interest Period of three
months or less, the last day of each Interest
Period therefor, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each
day that is three months, or a whole multiple thereof
(e.g., six months), after the first day of such
Interest Period and the last day of such Interest Period
and (d) as to any Eurodollar Loan the date of
any repayment or prepayment made in respect thereof.
"Interest Period": (a) with respect to any ABR
Loan, the period commencing on the Borrowing
Date or the Conversion Date, as the case may be, with
respect to such ABR Loan and ending on the last
day of each March, June, September and December to occur
while such Loan is outstanding and the final
maturity date of such Loan, and (b) with respect to any
Eurodollar Loan:
(i) initially, the period commencing on the Borrowing Date or
the 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
Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect
thereto; and
Page 6
(ii) thereafter, 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 Borrower by
irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day
of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(1) if any Interest Period would
otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the
next succeeding Business 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 Business Day;
(2) any Interest Period for a Loan that
would otherwise extend beyond the Termination
Date shall end on the Termination Date; and
(3) any Interest Period that begins on
the last Business Day of a calendar month (or
on a day for which there is no numerically
corresponding day in the calendar month at the end
of such Interest Period) shall end on the last
Business Day of a calendar month.
"Issuing Lender": JPMorgan Chase Bank and each
other Lender which agrees to act as Issuing
Lender hereunder, in its capacity as the issuer of Letters
of Credit hereunder, and its successors in
such capacity as provided in Section 3.9. The Issuing
Lender may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of the
Issuing Lender, in which case the term "Issuing
Lender" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
"JPMorgan Chase Bank": JPMorgan Chase Bank,
N.A., a national banking association.
"LC Disbursement": a payment made by the Issuing
Lender pursuant to a Letter of Credit.
"LC Exposure": at any time, the sum of (a) the
aggregate undrawn amount of all outstanding
Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Borrower at such
time. The LC Exposure of any Lender at any time
shall be its Percentage of the total LC Exposure at such
time.
"Lenders": as defined in the preamble hereto;
provided that, wherever appropriate, each
reference herein to the Lenders shall be deemed to include
the Issuing Lender.
"Lending Office": each Lender's lending office
designated in Schedule 1.1 or such other office
of such Lender notified to the Administrative Agent and
Borrower.
Page 7
"Letter of Credit": any letter of credit issued
pursuant to this Agreement.
"Letter of Credit Fronting Fee": as defined in
Section 2.3(c).
"Letter of Credit Participation Fee": the
letter of credit participation fee payable pursuant
to Section 2.3(c) at the Letter of Credit Participation
Fee Rate.
"Letter of Credit Participation Fee Rate":
the letter of credit participation fee rate per
annum set forth in the definition of "Applicable Margin".
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge or other security
interest or any 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 capitalized lease obligation
having substantially the same economic effect as any of
the foregoing).
"Loan": any loan made by any Lender pursuant to
Section 2.1.
"Loan Documents": this Agreement, the Bond
Delivery Agreement and any Notes.
"Material Adverse Effect": a material adverse
effect on the business, property, operations or
financial condition of the Borrower and its consolidated
Subsidiaries taken as a whole.
"Materials of Environmental Concern": any
gasoline or petroleum (including crude oil or any
fraction thereof) or petroleum products or any hazardous
or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental
Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation, but excluding
any such substances, materials or wastes that
are used or present on any property in conformance with
the Requirements of Law.
"Moody's": Moody's Investors Service, Inc.
"Mortgaged Property": all real and personal
property from time to time intended to be made
subject to the Lien of the Indenture.
"New Lender": as defined in Section 2.1(c).
"Non-Excluded Taxes": as defined in Section
2.14(a).
"Non-U.S. Lender": as defined in Section 2.14(d).
"Note": as defined in Section 2.4(e).
"Other Taxes": any and all present or future
stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any
payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.
Page 8
"Participants": as defined in Section 9.6(b).
"PBGC": the Pension Benefit Guaranty
Corporation established pursuant to Subtitle A of Title
IV of ERISA.
"Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment
then constitutes of the Total Commitments or, at any time
after the Commitments shall have terminated,
the percentage which the aggregate principal amount of
such Lender's Exposure at such time constitutes
of the Total Exposures at such time.
"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 Borrower 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.
"Prime Rate": the rate of interest per annum
publicly announced from time to time by JPMorgan
Chase Bank as its prime rate in effect at its principal
office in New York City (the Prime Rate not
being intended to be the lowest rate of interest charged
by JPMorgan Chase Bank in connection with
extensions of credit to debtors).
"Receivables Securitization": any financing
pursuant to which accounts receivable of the
Borrower or any of its Subsidiaries are (or are purported
to be) sold or pledged, which financing shall
be non-recourse (except for customary limited recourse
provisions) to the Borrower and its Subsidiaries.
"Register": as defined in Section 9.6(d).
"Regulation FD": as defined in Section 9.15.
"Regulatory Change": as to any Lender or the
Issuing Lender, any change occurring or taking
effect after the date of this Agreement in federal, state,
local or foreign laws or regulations, or the
adoption or making or taking effect after such date of any
interpretations, directives, or requests
applying to a class of lenders including the Lenders or to
the Issuing Lender, as the case may be, of or
under any federal, state, local or foreign laws or
regulations (whether or not having the force of law)
by any court or governmental or monetary authority charged
with the interpretation or administration
thereof.
"Required Lenders": at any date, the holders of
more than 50% of the Total Commitments then in
effect or, if the Commitments have terminated or for the
purposes of determining whether to accelerate
the Loans pursuant to Section 7, the Total Exposures at
such time.
Page 9
"Requirement of Law": as to any Person, the
Certificate of Incorporation and By-Laws or other
organizational or governing documents of such Person, and
any law, treaty, rule or regulation or
determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to
which such Person or any of its property is
subject.
"Responsible Officer": the Chief Financial
Officer, the Treasurer or any Assistant Treasurer
of the Borrower, or any employee of the Borrower
designated by any of the foregoing.
"S&P": Standard & Poor's Ratings Group.
"Significant Subsidiary": as defined in
Regulation S-X of the United States Securities and
Exchange Commission (or any successor), as the same may be
amended or supplemented from time to time.
"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 Borrower.
"Syndication Agent": as defined in the preamble
hereto.
"Termination Date": the date upon which the
Commitments shall terminate, which shall be
February 1, 2010.
"Total Commitments": at any time, the aggregate
amount of the Commitments then in effect. The
amount of the Total Commitments as of the Closing Date is
$1,250,000,000.
"Total Exposures": at any time, the aggregate
amount of the Exposures of all Lenders at such
time.
"Transferee": as defined in Section 9.6(f).
"Type": as to any Loan, its nature as an ABR
Loan or a Eurodollar Loan.
"Unsecured Facility Option Date": as defined in
Section 9.14(b).
Page 10
1.2. Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this
Agreement shall have their defined meanings when used in the Notes
or any certificate or other document made or
delivered pursuant hereto or thereto.
(b) As used herein and in the Notes and any certificate or
other document made or delivered pursuant hereto
or thereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" 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 THE CREDIT FACILITY
2.1. The Commitments; Increase in Total Commitments. (a)
Subject to the terms and conditions hereof, each
Lender severally agrees to make revolving credit loans to the
Borrower from time to time during the Commitment
Period in an aggregate principal amount at any one time outstanding
that will not result in such Lender's
Exposure exceeding such Lender's Commitment. During the Commitment
Period the Borrower may use the Commitments
by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and
conditions hereof. Notwithstanding anything to the contrary in
this Agreement, in no event may Loans be borrowed
under this Section 2 if, after giving effect thereto, the aggregate
principal amount of the Total Exposures at
such time would exceed the Total Commitments then in effect. The
Loans may from time to time be Eurodollar Loans
or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections
2.2 and 2.6.
(b) In the event that the Borrower wishes from time
to time to increase the Total Commitments, it
shall notify the Administrative Agent in writing of the amount (the
"Commitment Increase Amount") of such
proposed increase (such notice, a "Commitment Increase Notice"),
and the Administrative Agent shall notify each
Lender of such proposed increase. The Borrower may, at its
election (i) offer one or more of the Lenders the
opportunity to participate in all or a portion of the Commitment
Increase Amount pursuant to paragraph (d) below
and/or (ii) with the consent of the Administrative Agent and the
Issuing Lender (which consent shall not be
unreasonably withheld or delayed), offer one or more additional
banks, financial institutions or other entities
the opportunity to participate in all or a portion of the
Commitment Increase Amount pursuant to paragraph (c)
below. Each Commitment Increase Notice shall specify which Lenders
and/or banks, financial institutions or other
entities the Borrower desires to participate in such Commitment
increase. The Borrower or, if requested by the
Borrower, the Administrative Agent, will notify such Lenders and/or
banks, financial institutions or other
entities of such offer. Each Commitment Increase Amount shall be
at least $50,000,000.
Page 11
(c) Any additional bank, financial institution or
other entity which the Borrower selects to offer
participation in the increased Commitments and which elects to
become a party to this Agreement and provide a
Commitment in an amount so offered and accepted by it pursuant to
Section 2.1(b)(ii) shall execute a New Lender
Supplement with the Borrower and the Administrative Agent,
substantially in the form of Exhibit G, whereupon such
bank, financial institution or other entity (herein called a "New
Lender") shall become a Lender for all purposes
and to the same extent as if originally a party hereto and shall be
bound by and entitled to the benefits of this
Agreement, and Schedule 1.1 shall be deemed to be amended to add
the name and Commitment of such New Lender,
provided that the Commitment of any such new Lender shall be in an
amount not less than $5,000,000.
(d) Any Lender which accepts an offer to it by the
Borrower to increase its Commitment pursuant to
Section 2.1(b)(i) shall, in each case, execute a Commitment
Increase Supplement with the Borrower and the
Administrative Agent, substantially in the form of Exhibit H,
whereupon such Lender shall be bound by and
entitled to the benefits of this Agreement with respect to the full
amount of its Commitment as so increased, and
Schedule 1.1 shall be deemed to be amended to so increase the
Commitment of such Lender.
(e) Notwithstanding anything to the contrary in this
Section 2.1, (i) in no event shall any
increase effected pursuant to this Section 2.1 cause the Total
Commitments hereunder to exceed $1,750,000,000 and
(ii) no Lender shall have any obligation to increase its Commitment
unless it agrees to do so in its sole
discretion.
(f) On the effective date of each increase in the
Commitments pursuant to this Section 2.1 and
notwithstanding other provisions of this Agreement to the contrary
(i) the Lenders shall make such payments as
shall be directed by the Administrative Agent in order that the
outstanding Loans shall be held ratably by the
Lenders based on their respective Commitments and (ii)
participations in outstanding Letters of Credit shall be
deemed to be reallocated according to the respective Commitments of
the Lenders. Payments of interest, fees and
commissions with respect to the Loans and Letters of Credit shall
be made to give effect to any adjustments in
the Loans and participations in the Letters of Credit made pursuant
to this Section 2.1.
(g) On the effective date of each increase in the
Commitments pursuant to this Section 2.1, the
conditions set forth in paragraphs (b), (c), (e), (f) (with
appropriate modifications), (h) and, prior to the
Unsecured Facility Option Date, (g) of Section 5.1 shall have been
satisfied with respect to such increased
Commitments as if such paragraphs applied to such increase, mutatis
mutandis.
2.2. Procedure for Borrowing. The Borrower may borrow under
the Commitments during the Commitment Period on
any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice, which notice
must be executed by a Responsible Officer of the Borrower and
received by the Administrative Agent prior to
(a) 12:30 P.M., New York City time, three Business Days prior to
the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) 12:00 Noon, New York City time, on the
requested Borrowing Date, in the case of ABR
Page 12
Loans. Each such notice shall specify (i) the amount to be
borrowed, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Eurodollar Loans, ABR
Loans, or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the
respective lengths of the initial Interest Periods
therefor. Each borrowing under the Commitments shall be in an
amount equal to (x) in the case of ABR Loans,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and
(y) in the case of Eurodollar Loans,
$10,000,000 or a whole multiple of $1,000,000 in excess thereof;
provided that a borrowing under the Commitments
that is an ABR Loan may be in any aggregate amount that is required
to finance the reimbursement of all or a part
of an LC Disbursement as contemplated by Section 3.5. Upon receipt
of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof.
Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for
the account of the Borrower at the office of
the Administrative Agent specified in Section 9.2 prior to 1:00
P.M., New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then
be made available to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to
the Administrative Agent by the Lenders
promptly upon receipt thereof and in like funds as received by the
Administrative Agent; provided that Loans made
to finance the reimbursement of an LC Disbursement as provided in
Section 3.5 shall be remitted by the
Administrative Agent to the applicable Issuing Lender.
2.3. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a
Facility Fee for the period from and including the first day of the
Commitment Period to and excluding the
Termination Date, computed at the Facility Fee Rate on the average
daily amount of the Commitment of such Lender
(or, following termination of the Commitment of such Lender, on the
average daily amount of the Loans and LC
Exposure of such Lender) during the period for which payment is
made, payable in arrears on the last day of each
March, June, September and December and on the Termination Date
and, following termination of the Commitments, on
demand.
(b) The Borrower agrees to pay to the Administrative Agent for
its own account any fees separately agreed to
by the Borrower and the Administrative Agent in writing.
(c) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Lender (including the
Issuing Lender) a Letter of Credit Participation Fee with respect
to its participations in Letters of Credit,
which shall accrue at the Letter of Credit Participation Fee Rate
on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and
including the Closing Date to but excluding the later of the date
on which such Lender's Commitment terminates
and the date on which such Lender ceases to have any LC Exposure,
and (ii) to the Issuing Lender a fronting fee
(the "Letter of Credit Fronting Fee"), which shall accrue at the
rate per annum separately agreed with the
Issuing Lender on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including
the Closing Date to but excluding the later
of the date of termination of the Commitments and the date on which
there ceases to be any LC Exposure, as well
as the Issuing Lender's standard fees with respect to the issuance,
amendment, renewal, extension or
administration of any Letter of Credit or processing of drawings
thereunder, such standard fees of JPMorgan Chase
Bank as Issuing Lender as in effect as of the Closing Date having
been disclosed in writing to Borrower prior to
the Closing Date. Letter of Credit Participation Fees and Letter
of Credit Fronting Fees accrued through and
Page 13
including the last day of March, June, September and December of
each year shall be payable on each such last
day, commencing on the first such date to occur after the Closing
Date; provided that all such fees shall be
payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Lender pursuant to this
paragraph shall be payable within 15 Business Days after demand.
2.4. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid
principal amount of each Loan of such Lender
on the Termination Date (or such earlier date on which the Loans
become due and payable pursuant to Section 7).
The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans from time to time
outstanding from the date hereof until payment in full thereof at
the rates per annum, and on the dates, set
forth in Section 2.8.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing
indebtedness of the Borrower to such Lender resulting from each
Loan of such Lender from time to time, including
the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to Section 9.6(d), and a subaccount
therein for each Lender, in which shall be recorded (i) the amount
of each Loan made hereunder, the Type thereof
and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder
and (iii) both the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.4(b)
shall, to the extent permitted by applicable law, be prima facie
evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however,
that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account,
or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable
interest) the Loans made to such Borrower by such
Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will
execute and deliver to such Lender a promissory note of the
Borrower evidencing the Loans of such Lender,
substantially in the form of Exhibit A with appropriate insertions
as to date and principal amount (a "Note").
2.5. Prepayments and Termination or Reduction of Commitments.
(a) The Borrower may, upon not less than
three Business Days' notice to the Administrative Agent, terminate
or reduce the unutilized amount of the
Commitments. Any reduction of the Commitments 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.
Page 14
(b) The Borrower may at any time and from time to time prepay
the Loans, in whole or in part, without
premium or penalty, upon at least three Business Days' irrevocable
notice to the Administrative Agent. Each such
notice shall specify the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans, ABR
Loans or a combination thereof, and, if of a combination thereof,
the amount allocable to each. Upon receipt of
any such notice the Administrative Agent shall promptly notify each
Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the
date specified therein, together with any
amounts payable pursuant to Section 2.15 and (except in the case of
ABR Loans) accrued interest to but excluding
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.
2.6. Conversion and Continuation Options. ABR Loans may, at
any time, be converted into Eurodollar Loans and
Eurodollar Loans may, on the last day of any Interest Period
applicable thereto, be converted into ABR Loans or
continued as Eurodollar Loans (the date of any such conversion, the
"Conversion Date"), as follows:
(a) In order to continue outstanding Eurodollar Loans as
Eurodollar Loans for another Interest Period, or to
convert ABR Loans to Eurodollar Loans, the Borrower shall
give the Administrative Agent irrevocable
notice thereof prior to 12:30 P.M. New York City time,
three Business Days before the first day of the
Interest Period to be applicable to such continued or
converted Eurodollar Loans, which notice shall
specify the length of the Interest Period requested by the
Borrower to be applicable to such Loans.
(b) No Loan may be converted into, or continued as, a
Eurodollar Loan when any Event of Default has occurred
and is continuing and the Administrative Agent has or the
Required Lenders have determined in its or
their sole discretion not to permit such a continuation.
(c) If the Borrower fails to give a notice as described above
in this Section 2.6 to continue an outstanding
Eurodollar Loan or to convert such Loan to an ABR Loan, or
if such continuation or conversion is not
permitted pursuant to paragraph (b) above, such Loans
shall be automatically converted to ABR Loans on
the last day of the then expiring Interest Period
applicable to such Loans.
(d) The Administrative Agent shall promptly notify each Lender
of each notice received by the Administrative
Agent from the Borrower pursuant to this Section 2.6.
2.7. Minimum Amounts and Maximum Number of Tranches. All
borrowings, prepayments, 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 Eurodollar Tranche shall be equal to $10,000,000 or
a whole multiple of $1,000,000 in excess
thereof. In no event shall there be more than five Eurodollar
Tranches outstanding at any time.
Page 15
2.8. Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal
to the Eurodollar Rate determined for such
day plus the Applicable Margin therefor.
(b) Each ABR Loan shall bear interest for each day from the
applicable Borrowing Date at a rate per annum
equal to the ABR plus the Applicable Margin therefor.
(c) If all or a portion of (i) the principal amount of any
Loan or reimbursement obligation in respect of
any LC Disbursement, (ii) any interest payable thereon or (iii) any
fee or other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall,
to the extent permitted by applicable law, bear interest at a rate
per annum which is equal to the rate
applicable to ABR Loans pursuant to Section 2.8(b) plus 2% from the
date of such non-payment to (but excluding)
the date on which such amount is paid in full (after as well as
before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing
pursuant to paragraph (c) of this Section shall be payable from
time to time on demand.
2.9. Computation of Interest and Fees. (a) Interest
calculated on the basis of the Prime Rate shall be
calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed; and,
otherwise, interest and Facility Fees, Letter of Credit
Participation Fees and Letter of Credit Fronting 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 Borrower and the Lenders of each
determination of a Eurodollar Rate.
(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 Borrower and the
Lenders in the absence of manifest error. The
Administrative Agent shall deliver to the Borrower upon request a
statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to
Section 2.8(a) or (b).
2.10. Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon
the Borrower, absent manifest error) that the Eurodollar Rate can
not be determined by any of the means set forth
in the definition of "Eurodollar Rate" and, by reason of
circumstances affecting the eurodollar market,
quotations of interest rates for the relevant deposits are not
being provided to JPMorgan Chase Bank in the
relevant amount or for the relevant maturities for purposes of
determining the Eurodollar Rate for such Interest
Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Eurodollar Rate
determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders, absent manifest
error) of making or maintaining their
Page 16
affected Loans during such Interest Period, the Administrative
Agent shall give telecopy or telephonic notice
thereof to the Borrower and the Lenders as soon as practicable
thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as ABR Loans,
(y) any ABR Loans that were to have been converted on the first day
of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (z) any outstanding Eurodollar
Loans shall be converted, on the first day of
such Interest Period, to ABR Loans. Each such Lender shall
promptly notify the Administrative Agent upon any
change in such determination of the adequacies and fairness of the
Eurodollar Rate, and the Administrative Agent
shall promptly withdraw its notice to the Borrower following
receipt of such notices from the Required Lenders.
Until such withdrawal by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert ABR Loans to
Eurodollar Loans.
2.11. Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each
payment by the Borrower of any Facility Fee or Letter of Credit
Participation Fee hereunder, each payment
(including each prepayment) by the Borrower on account of principal
of and interest on the Loans, and any
reduction of the Commitments of the Lenders shall be made pro rata
according to the Percentages of the Lenders,
in each case except to the extent another provision of this
Agreement specifies a different treatment. All
payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest,
fees or otherwise, shall be made without set off or counterclaim
and shall be made prior to 4:00 P.M., New York
City time, on the due date thereof to the Administrative Agent
(except payments to be made directly to the
Issuing Lender as expressly provided herein), for the account of
the Lenders, at the Administrative Agent's
office specified in Section 9.2, in Dollars and in immediately
available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in
like funds as received. If any payment
hereunder 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.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing
that such Lender will not make the amount that would constitute its
share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance
upon such assumption, make available to the
Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such
amount with interest thereon at a rate equal to the daily average
Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any
amounts owing under this Section shall be
conclusive in the absence of manifest error. If such Lender's pro
rata share of such borrowing is not made
available to the Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to repayment of such
amount with interest thereon at the rate per
annum otherwise applicable to such Loans hereunder, on demand, from
the Borrower and, upon such payment, no
further interest shall be payable with respect to such amount. The
payment of interest by a Lender to the
Administrative Agent pursuant to this Section 2.11(b) shall not be
deemed to be a waiver of any right the
Borrower may have against such Lender for such Lender's failure to
make Loans to the Borrower as required
hereunder.
Page 17
2.12. Illegality. Notwithstanding any other provision herein,
if the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof
shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Agreement (a)
such Lender shall promptly give notice thereof
to the Borrower and the Administrative Agent, (b) the commitment of
such Lender hereunder to make Eurodollar
Loans, continue Eurodollar Loans as such and convert ABR Loans to
Eurodollar Loans shall forthwith be cancelled
and (c) such Lender's outstanding Eurodollar Loans, if any, shall
be converted automatically to ABR 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.
2.13. Additional Costs. (a) If, as a result of any Regulatory
Change:
(i) any Lender or the Issuing Lender shall be subject to any
tax of any kind whatsoever with respect to
amounts payable to it under this Agreement or any
Eurodollar Loan made by it, or the basis of taxation
of payments to such Lender or the Issuing Lender in
respect thereof is changed (except, in each case,
for Non-Excluded Taxes covered by Section 2.14, net income
taxes and franchise taxes, and changes in the
rate of tax on the overall net income of such Lender); or
(ii) any reserve, special deposit, or capital adequacy, or
similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other
liabilities of, any Lender or the Issuing
Lender are imposed, modified, or deemed applicable; or
(iii) any other condition affecting this Agreement, any
Eurodollar Loans or any Letter of Credit or
participation therein is imposed on any Lender or the
Issuing Lender after the date hereof; and
any Lender or the Issuing Lender, as the case may be, determines
that, by reason thereof, the cost to such Lender
of making or maintaining its Commitment or any of its Eurodollar
Loans to the Borrower, or the cost (including
reduced rate of return) to such Lender or the Issuing Lender of
participating in, issuing or maintaining any
Letter of Credit, as the case may be, is increased or any amount
receivable by such Lender or the Issuing Lender
hereunder in respect of any of such Loans or Letters of Credit is
reduced, in each case by an amount reasonably
deemed by such Lender or the Issuing Lender to be material (such
increases in cost and reductions in amounts
receivable being herein called "Additional Costs"), then the
Borrower shall pay to such Lender or the Issuing
Lender, as the case may be, upon its request the additional amount
or amounts as will compensate such Lender or
the Issuing Lender, as the case may be, for such Additional Costs
within 15 Business Days after written notice of
such Additional Costs is received by the Borrower; provided,
however, that if all or any such Additional Costs
would not have been payable or incurred but for such Lender's
voluntary decision to designate a new Lending
Office, the Borrower shall have no obligation under this Section
2.13 to compensate such Lender for such amount
relating to such Lender's decision; provided, further, that the
Borrower shall not be required to make any
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payments to such Lender or the Issuing Lender for Additional Costs
resulting from capital adequacy requirements
incurred more than 60 days prior to the date that such Lender or
the Issuing Lender, as the case may be, notifies
the Borrower of such Lender's intention to claim compensation
therefor. Each Lender will notify the Borrower and
the Administrative Agent of any Regulatory Change occurring after
the date of this Agreement which will entitle
such Lender or the Issuing Lender, as the case may be, to
compensation pursuant to this Section 2.13(a) as
promptly as practicable after it obtains knowledge thereof and
determines to request such compensation. If such
Lender or the Issuing Lender requests compensation under this
Section 2.13(a) in respect of any Regulatory
Change, the Borrower may, by notice to such Lender or the Issuing
Lender, as applicable, require that such Lender
or the Issuing Lender forward to the Borrower a statement setting
forth the basis for requesting such
compensation and the method for determining the amount thereof.
(b) Without limiting the effect of the provisions of Section
2.13(a) (but without duplication thereof), the
Borrower will pay to any Lender, within 15 Business Days of receipt
by the Borrower of notice from such Lender,
for each day such Lender is required to maintain reserves against
"Eurocurrency liabilities" under Regulation D
of the Board as in effect on the date of this Agreement, an
additional amount determined by such Lender equal to
the product of the following:
(i) the principal amount of the Eurodollar Loan;
(ii) the remainder of (x) a fraction the numerator of which is
the Eurodollar Rate for such Eurodollar Loan
and the denominator of whic
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