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Exhibit 10.2
EXECUTION COPY
FIVE YEAR CREDIT AGREEMENT
by and among
CVS CORPORATION,
THE LENDERS PARTY HERETO,
BANK OF AMERICA, N.A., CREDIT SUISSE FIRST BOSTON, and
WACHOVIA SECURITIES, INC.,
as Co-Syndication Agents,
ABN AMRO BANK N.V.,
as Documentation Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent
-----------------------------
Dated as of June 11, 2004
-----------------------------
BNY CAPITAL MARKETS, INC.
as Lead Arranger and Book Runner
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TABLE OF CONTENTS
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1. DEFINITIONS AND PRINCIPLES
OF
CONSTRUCTION....................................................1
1.1
Definitions...........................................................................1
1.2 Principles of
Construction...........................................................17
2. AMOUNT AND TERMS OF
LOANS....................................................................17
2.1 Revolving Credit
Loans...............................................................17
2.2 Swing Line
Loans.....................................................................18
2.3 Notice of
Borrowing Revolving Credit Loans and Swing Line
Loans......................20
2.4 Competitive Bid
Loans and
Procedure..................................................21
2.5 Use of
Proceeds......................................................................23
2.6 Termination or
Reduction of
Commitments..............................................23
2.7 Prepayments of
Loans.................................................................24
2.8 Letter of Credit
Sub-facility........................................................24
2.9 Letter of Credit
Participation.......................................................25
2.10
Absolute
Obligation with respect to Letter of Credit
Payments........................26
2.11
Notes................................................................................27
3. PROCEEDS, PAYMENTS,
CONVERSIONS, INTEREST, YIELD PROTECTION AND
FEES.........................27
3.1 Disbursement of
the Proceeds of the
Loans............................................27
3.2
Payments.............................................................................28
3.3 Conversions;
Other
Matters...........................................................28
3.4 Interest Rates
and Payment
Dates.....................................................30
3.5 Indemnification
for
Loss.............................................................31
3.6 Reimbursement
for Costs,
Etc.........................................................32
3.7 Illegality of
Funding................................................................33
3.8 Option to Fund;
Substituted Interest
Rate............................................33
3.9 Certificates of
Payment and
Reimbursement............................................34
3.10
Taxes; Net
Payments..................................................................35
3.11
Fees.................................................................................36
3.12
Letter of
Credit Participation
Fee...................................................36
3.13
Replacement of
Lender................................................................37
4. REPRESENTATIONS AND
WARRANTIES...............................................................37
4.1 Existence and
Power..................................................................38
4.2
Authority............................................................................38
4.3 Binding
Agreement....................................................................38
4.4
Litigation...........................................................................38
4.5 No Conflicting
Agreements............................................................39
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4.6
Taxes................................................................................39
4.7 Compliance with
Applicable Laws;
Filings.............................................39
4.8 Governmental
Regulations.............................................................40
4.9 Federal Reserve
Regulations; Use of
Proceeds.........................................40
4.10
No
Misrepresentation.................................................................40
4.11
Plans................................................................................40
4.12
Environmental
Matters................................................................41
4.13
Financial
Statements.................................................................41
5. CONDITIONS OF LENDING -
FIRST LOANS AND LETTERS OF CREDIT ON THE FIRST BORROWING
DATE........42
5.1 Evidence of
Corporate
Action.........................................................42
5.2
Notes................................................................................42
5.3 Opinion of
Counsel to the
Borrower...................................................42
6. CONDITIONS OF LENDING - ALL
LOANS AND LETTERS OF
CREDIT......................................43
6.1
Compliance...........................................................................43
6.2
Requests.............................................................................43
6.3 Loan
Closings........................................................................43
7. AFFIRMATIVE
COVENANTS........................................................................43
7.1 Legal
Existence......................................................................43
7.2
Taxes................................................................................44
7.3
Insurance............................................................................44
7.4 Performance of
Obligations...........................................................44
7.5 Condition of
Property................................................................44
7.6 Observance of
Legal
Requirements.....................................................44
7.7 Financial
Statements and Other
Information...........................................45
7.8
Records..............................................................................46
7.9
Authorizations.......................................................................46
7.10
Existing
Five Year Credit
Agreement..................................................46
8. NEGATIVE
COVENANTS...........................................................................46
8.1 Subsidiary
Indebtedness..............................................................47
8.2
Liens................................................................................47
8.3
Dispositions.........................................................................48
8.4 Merger or
Consolidation,
Etc.........................................................48
8.5
Acquisitions.........................................................................48
8.6 Restricted
Payments..................................................................48
8.7 Limitation on
Upstream Dividends by
Subsidiaries.....................................48
8.8 Limitation on
Negative
Pledges.......................................................49
8.9 Ratio of
Consolidated Indebtedness to Total
Capitalization...........................49
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9.
DEFAULT......................................................................................50
9.1 Events of
Default....................................................................50
9.2
Remedies.............................................................................52
10.
AGENT........................................................................................53
10.1
Appointment..........................................................................53
10.2
Delegation
of
Duties.................................................................53
10.3
Exculpatory
Provisions...............................................................53
10.4
Reliance
by Administrative
Agent.....................................................54
10.5
Notice of
Default....................................................................54
10.6
Non-Reliance.........................................................................55
10.7
[Intentionally
Omitted]..............................................................55
10.8
Administrative Agent in Its Individual
Capacity......................................55
10.9
Successor
Administrative
Agent.......................................................55
10.10
Co-Syndication
Agents and Documentation
Agent........................................56
11. OTHER
PROVISIONS.............................................................................56
11.1
Amendments, Waivers,
Etc.............................................................56
11.2
Notices..............................................................................57
11.3
No Waiver;
Cumulative
Remedies.......................................................59
11.4
Survival
of Representations and
Warranties...........................................59
11.5
Payment of
Expenses and Taxes; Indemnified
Liabilities...............................59
11.6
Lending
Offices......................................................................60
11.7
Successors
and
Assigns...............................................................60
11.8
Counterparts.........................................................................63
11.9
Set-off
and Sharing of
Payments......................................................63
11.10
Indemnity............................................................................64
11.11
Governing
Law........................................................................65
11.12
Severability.........................................................................65
11.13
Integration..........................................................................66
11.14
Treatment of
Certain
Information.....................................................66
11.15
Acknowledgments......................................................................67
11.16
Consent to
Jurisdiction..............................................................67
11.17
Service of
Process...................................................................67
11.18
No Limitation on
Service or
Suit.....................................................67
11.19
WAIVER OF TRIAL
BY
JURY..............................................................68
11.20
Effective
Date.......................................................................68
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EXHIBITS
Exhibit A
List of Commitments
Exhibit B
Form of Note
Exhibit C
Form of Borrowing Request
Exhibit D-1
Form of Opinion of Counsel to the Borrower
Exhibit D-2
Form of Opinion of Special Counsel to the Borrower
Exhibit E
Form of Assignment and Acceptance Agreement
Exhibit F
Form of Competitive Bid Request
Exhibit G
Form of Invitation to Bid
Exhibit H
Form of Competitive Bid
Exhibit I
Form of Competitive Bid Accept/Reject Letter
Exhibit J
Form of Letter of Credit Request
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FIVE YEAR CREDIT AGREEMENT, dated as of June 11, 2004, by and
among
CVS CORPORATION, a Delaware corporation
(the "BORROWER"), the Lenders party
hereto from time to time (each a "LENDER"
and, collectively, the "LENDERS"),
BANK OF AMERICA, N.A., CREDIT SUISSE FIRST
BOSTON, and WACHOVIA SECURITIES,
INC., as co-syndication agents (in such
capacity, each a "CO-SYNDICATION
AGENT"), ABN AMRO BANK N.V., as
documentation agent (in such capacity, a
"DOCUMENTATION AGENT"), and THE BANK OF NEW
YORK ("BNY"), as administrative
agent for the Lenders (in such capacity,
the "ADMINISTRATIVE AGENT").
1. DEFINITIONS AND PRINCIPLES
OF CONSTRUCTION
1.1 Definitions
When used in any Loan Document (as defined below), each of the
following terms shall have the meaning
ascribed thereto unless the context
otherwise specifically requires:
"ABR ADVANCES":
the Revolving Credit Loans (or any portions thereof) at
such time as they (or such portions) are
made or are being maintained at a rate
of interest based upon the Alternate Base
Rate.
"ACCUMULATED
FUNDING DEFICIENCY": as defined in Section 302 of ERISA.
"ACQUISITION":
with respect to any Person, the purchase or other
acquisition by such Person, by any means
whatsoever (including by devise,
bequest, gift, through a dividend or
otherwise), of (a) stock of, or other
equity securities of, any other Person if,
immediately thereafter, such other
Person would be either a consolidated
subsidiary of such Person or otherwise
under the control of such Person, (b) any
business, going concern or division or
segment thereof, or (c) the Property of any
other Person other than in the
ordinary course of business, PROVIDED that
(i) no acquisition of substantially
all of the assets, or any division or
segment, of such other Person shall be
deemed to be in the ordinary course of
business and (ii) no redemption,
retirement, purchase or acquisition by any
Person of the stock or other equity
securities of such Person shall be deemed
to constitute an Acquisition.
"ADMINISTRATIVE
AGENT": as defined in the preamble.
"ADMINISTRATIVE
QUESTIONNAIRE": an Administrative Questionnaire in a form
supplied by the Administrative Agent.
"AFFECTED
ADVANCE": as defined in Section 3.8(b).
"AFFILIATE":
with respect to any Person at any time and from time to time,
any other Person (other than a wholly-owned
subsidiary of such Person) which, at
such time (a) controls such Person, (b) is
controlled by such Person or (c) is
under common control with such Person. The
term "control", as used in this
definition with respect to any Person,
means the power, whether direct or
indirect through one or more
intermediaries, to direct or cause the direction of
the management and policies of such Person,
whether through the ownership of
voting securities or other interests, by
contract or otherwise.
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"AGGREGATE
COMMITMENT AMOUNT": at any time, the sum of the Commitment
Amounts of the Lenders at such time under
this Agreement.
"AGGREGATE
CREDIT EXPOSURE": at any time, the sum at such time of (a) the
aggregate Committed Credit Exposure of the
Lenders at such time under this
Agreement and (b) the aggregate outstanding
principal balance of all Competitive
Bid Loans at such time under this
Agreement.
"AGREEMENT":
this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from
time to time.
"ALTERNATE BASE
RATE": for any day, a rate per annum equal to the greater
of (a) the BNY Rate in effect on such day,
or (b) 0.50% plus the Federal Funds
Effective Rate (rounded, if necessary, to
the nearest l/100th of 1% or, if there
is no nearest 1/100 of 1%, then to the next
higher 1/100 of 1%) in effect on
such day.
"APPLICABLE
MARGIN": (i) with respect to the unpaid principal balance of
ABR Advances, the applicable percentage set
forth below in the column entitled
"ABR Advances", (ii) with respect to the
unpaid principal balance of Eurodollar
Advances, the applicable percentage set
forth below in the column entitled
"Eurodollar Advances", (iii) with respect
to the Facility Fee, the applicable
percentage set forth below in the column
entitled "Facility Fee", (iv) with
respect to the Letter of Credit
Participation Fee, the applicable percentage set
forth below in the column entitled
"Participation Fee", and (v) with respect to
the Utilization Fee, the applicable
percentage set forth below in the column
entitled "Utilization Fee", in each case
opposite the applicable Pricing Level:
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ABR
EURODOLLAR
FACILITY
PARTICIPATION
UTILIZATION
PRICING LEVEL
ADVANCES
ADVANCES
FEE
FEE
FEE
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Pricing Level I
0%
0.130%
0.070%
0.130%
0.050%
Pricing Level II
0%
0.170%
0.080%
0.170%
0.050%
Pricing Level III
0%
0.215%
0.085%
0.215%
0.050%
Pricing Level IV
0%
0.275%
0.100%
0.275%
0.050%
Pricing Level V
0%
0.325%
0.125%
0.325%
0.100%
Pricing Level VI
0%
0.400%
0.150%
0.400%
0.100%
Pricing Level VII
0%
0.4625%
0.1875%
0.4625%
0.100%
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Decreases in the Applicable Margin
resulting from a change in Pricing Level
shall become effective upon the delivery by
the Borrower to the Administrative
Agent of a notice pursuant to Section
7.7(d). Increases in the Applicable Margin
resulting from a change in Pricing Level
shall
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become effective on the effective date of
any downgrade or withdrawal in the
rating by Moody's or S&P of the senior
unsecured long term debt rating of the
Borrower.
"APPROVED FUND":
with respect to any Lender that is a fund that invests in
commercial loans, any other fund that
invests in commercial loans and is managed
or advised by the same investment advisor
as such Lender or by an Affiliate of
such investment advisor.
"ASSIGNMENT AND
ACCEPTANCE AGREEMENT": an assignment and acceptance
agreement executed by an assignor and an
assignee pursuant to which, subject to
the terms and conditions hereof and
thereof, the assignor assigns to the
assignee all or any portion of such
assignor's Loans, Notes and Commitment,
substantially in the form of Exhibit E.
"BENEFITED
LENDER": as defined in Section 11.9(b).
"BNY": as
defined in the preamble.
"BNY RATE": a
rate of interest per annum equal to the rate of interest
publicly announced in New York City by BNY
from time to time as its prime
commercial lending rate, such rate to be
adjusted automatically (without notice)
on the effective date of any change in such
publicly announced rate.
"BORROWER": as
defined in the preamble.
"BORROWING
DATE": (i) in respect of Revolving Credit Loans, any Domestic
Business Day or Eurodollar Business Day, as
the case may be, on which the
Lenders shall make Revolving Credit Loans
pursuant to a Borrowing Request or
pursuant to a Mandatory Borrowing, (ii) in
respect of Competitive Bid Loans, any
Domestic Business Day on which a Lender
shall make a Competitive Bid Loan
pursuant to a Competitive Bid Request,
(iii) in respect of Swing Line Loans, any
Domestic Business Day on which the Swing
Line Lender shall make a Swing Line
Loan pursuant to a Borrowing Request and
(iv) in respect of Letters of Credit,
any Domestic Business Day on which the
Issuer shall issue a Letter of Credit
pursuant to a Letter of Credit Request.
"BORROWING
REQUEST": a request for Revolving Credit Loans or Swing Line
Loans in the form of Exhibit C.
"BRIDGE FACILITY
CREDIT AGREEMENT": the Bridge Facility Credit Agreement,
dated as of June 11, 2004, by and among the
Borrower, the lenders party thereto,
Bank of America, N.A., Credit Suisse First
Boston, and Wachovia Securities,
Inc., as co-syndication agents, and BNY, as
administrative agent, as the same
may be amended, supplemented or otherwise
modified from time to time.
"CHANGE OF
CONTROL": any of the following:
(i) any Person or group
(as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as
amended), (a) shall have or acquire
beneficial ownership of securities having
30% or more of the ordinary voting
power of the Borrower or (b) shall possess,
directly or
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indirectly, the power to direct or cause
the direction of the management and
policies of the Borrower, whether through
the ownership of voting securities, by
contract or otherwise; or
(ii)
the Continuing
Directors shall cease for any reason to constitute a
majority of the board of directors of the
Borrower then in office.
"COMMITMENT": in
respect of any Lender, such Lender's undertaking to make
Revolving Credit Loans, subject to the
terms and conditions hereof, in an
aggregate outstanding principal amount not
to exceed the Commitment Amount of
such Lender.
"COMMITMENT
AMOUNT": at any time and with respect to any Lender, the amount
set forth adjacent to such Lender's name
under the heading "Commitment Amount"
in Exhibit A at such time or, in the event
that such Lender is not listed on
Exhibit A, the "Commitment Amount" which
such Lender shall have assumed from
another Lender in accordance with Section
11.7 on or prior to such time, as the
same may be adjusted from time to time
pursuant to Sections 2.6 and 11.7(c).
"COMMITMENT
PERCENTAGE": at any time and with respect to any Lender, a
fraction the numerator of which is such
Lender's Commitment Amount at such time,
and the denominator of which is the
Aggregate Commitment Amount at such time.
"COMMITMENT
PERIOD": the period commencing on the Effective Date and ending
on the Commitment Termination Date, or on
such earlier date as all of the
Commitments shall have been terminated in
accordance with the terms hereof.
"COMMITMENT
TERMINATION DATE": the earlier of June 11, 2009 and the date on
which the Loans shall become due and
payable, whether by acceleration, notice of
intention to prepay or otherwise.
"COMMITTED
CREDIT EXPOSURE": with respect to any Lender at any time, the
sum at such time of (a) the outstanding
principal balance of such Lender's
Revolving Credit Loans, (b) the Swing Line
exposure of such Lender and (c) the
Letter of Credit Exposure of such
Lender.
"COMPENSATORY
INTEREST PAYMENT": as defined in Section 3.4(c).
"COMPETITIVE
BID": an offer by a Lender, in the form of Exhibit H, to make
one or more Competitive Bid Loans.
"COMPETITIVE BID
ACCEPT/REJECT LETTER": a notification made by the Borrower
pursuant to Section 2.4(d) in the form of
Exhibit I.
"COMPETITIVE BID
LOAN": as defined in Section 2.4(a).
"COMPETITIVE BID
RATE": as to any Competitive Bid made by a Lender pursuant
to Section 2.4(b), the fixed rate of
interest (which shall be expressed in the
form of a decimal to no more than four
decimal places) offered by such Lender
and accepted by the Borrower.
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"COMPETITIVE BID
REQUEST": a request by the Borrower, in the form of
Exhibit F, for Competitive Bids.
"COMPETITIVE
INTEREST PERIOD": as to any Competitive Bid Loan, the period
commencing on the date of such Competitive
Bid Loan and ending on the date
requested in the Competitive Bid Request
with respect thereto, which shall not
be earlier than 3 days after the date of
such Competitive Bid Loan or later than
180 days after the date of such Competitive
Bid Loan, PROVIDED that if any
Competitive Interest Period would end on a
day other than a Domestic Business
Day, such Interest Period shall be extended
to the next succeeding Domestic
Business Day, unless such next succeeding
Domestic Business Day would be a date
on or after the Commitment Termination
Date, in which case such Competitive
Interest Period shall end on the next
preceding Domestic Business Day. Interest
shall accrue from and including the first
day of a Competitive Interest Period
to but excluding the last day of such
Competitive Interest Period.
"CONSOLIDATED":
the Borrower and the Subsidiaries on a consolidated basis
in accordance with GAAP.
"CONTINGENT
OBLIGATION": as to any Person (the "secondary obligor"), any
obligation of such secondary obligor (a)
guaranteeing or in effect guaranteeing
any return on any investment made by
another Person, or (b) guaranteeing or in
effect guaranteeing any Indebtedness,
lease, dividend or other obligation
("primary obligation") of any other Person
(the "primary obligor") in any
manner, whether directly or indirectly,
including any obligation of such
secondary obligor, whether or not
contingent, (i) to purchase any such primary
obligation or any Property constituting
direct or indirect security therefor,
(ii) to advance or supply funds (A) for the
purchase or payment of any such
primary obligation or (B) to maintain
working capital or equity capital of the
primary obligor or otherwise to maintain
the net worth or solvency of the
primary obligor, (iii) to purchase
Property, securities or services primarily
for the purpose of assuring the beneficiary
of any such primary obligation of
the ability of the primary obligor to make
payment of such primary obligation,
(iv) otherwise to assure or hold harmless
the beneficiary of such primary
obligation against loss in respect thereof,
and (v) in respect of the
Indebtedness of any partnership in which
such secondary obligor is a general
partner, except to the extent that such
Indebtedness of such partnership is
nonrecourse to such secondary obligor and
its separate Property, PROVIDED that
the term "Contingent Obligation" shall not
include the indorsement of
instruments for deposit or collection in
the ordinary course of business.
"CONTINUING
DIRECTOR": any member of the board of directors of the Borrower
who (i) is a member of that board of
directors on the Effective Date or (ii) was
nominated for election by the board of
directors a majority of whom were
directors on the Effective Date or whose
election or nomination for election was
previously approved by one or more of such
directors.
"CONTROL
PERSON": as defined in Section 3.6.
"CONVERT",
"CONVERSION" and "CONVERTED": each, a reference to a conversion
pursuant to Section 3.3 of one Type of
Revolving Credit Loan into another Type
of Revolving Credit Loan.
"COSTS": as
defined in Section 3.6.
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"CO-SYNDICATION
AGENTS": as defined in the preamble.
"CREDIT
EXPOSURE": with respect to any Lender at any time, the sum at
such
time of (a) the Committed Credit Exposure
of such Lender at such time under this
Agreement and (b) the outstanding principal
balance of all Competitive Bid Loans
of such Lender at such time under this
Agreement.
"CREDIT PARTIES"
means the Administrative Agent, the Co-Syndication Agents,
the Documentation Agent, the Swing Line
Lender, the Issuer and the Lenders.
"DEFAULT": any
of the events specified in Section 9.1, whether any
requirement for the giving of notice, the
lapse of time, or both, or any other
condition, has been satisfied.
"DISPOSITION":
with respect to any Person, any sale, assignment, transfer
or other disposition by such Person by any
means, of:
(a) the Stock of, or other
equity interests of, any other Person,
(b) any business,
operating entity, division or segment thereof, or
(c) any other Property of
such Person, other than (i) the sale of
inventory (other than in connection with
bulk transfers), (ii) the disposition
of equipment and (iii) the sale of cash
investments.
"DIVIDEND
RESTRICTIONS": as defined in Section 8.7.
"DOCUMENTATION
AGENT": as defined in the preamble.
"DOLLAR" OR "$":
lawful currency of the United States of America.
"DOMESTIC
BUSINESS DAY": any day (other than a Saturday, Sunday or legal
holiday in the State of New York) on which
banks are open for business in New
York City.
"ECKERD": Eckerd
Corporation, a Delaware corporation.
"ECKERD
ACQUISITION": the acquisition by the Borrower from Eckerd of
approximately 1260 drugstores located
mainly in the southern United States,
including Texas and Florida, as well as
Eckerd's mail order, specialty pharmacy
and pharmacy benefits management businesses
pursuant to the Eckerd Asset
Purchase Agreement.
"ECKERD ASSET
PURCHASE AGREEMENT": the Asset Purchase Agreement, dated as
of April 4, 2004, between the Borrower, CVS
Pharmacy, Inc. and J.C. Penney
Company, Inc. and certain of its
subsidiaries, including Eckerd (as amended,
supplemented or otherwise modified from
time to time).
"EFFECTIVE
DATE": as defined in Section 11.20.
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"ELIGIBLE
ASSIGNEE": (i) any commercial bank, investment bank, trust
company, banking association, financial
institution, mutual fund, pension fund
or any Approved Fund or (ii) any Lender or
any Affiliate or any Approved Fund of
such Lender.
"ELIGIBLE SPC":
a special purpose corporation that (i) is organized under
the laws of the United States or any state
thereof, (ii) is engaged in making,
purchasing or otherwise investing in
commercial loans in the ordinary course of
its business and (iii) issues (or the
parent of which issues) commercial paper
rated at least A-1 or the equivalent
thereof by S&P or at least P-1 or the
equivalent thereof by Moody's.
"EMPLOYEE
BENEFIT PLAN": an employee benefit plan, within the meaning of
Section 3(3) of ERISA, maintained,
sponsored or contributed to by the Borrower,
any Subsidiary or any ERISA Affiliate.
"ENVIRONMENTAL
LAWS": all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions,
notices or binding agreements issued,
promulgated or entered into by any
Governmental Authority, relating in any way
to the environment, preservation or
reclamation of natural resources, the
management, release or threatened release
of any Hazardous Material or to health
and safety matters.
"ENVIRONMENTAL
LIABILITY": as to any Person, any liability, contingent or
otherwise (including any liability for
damages, costs of environmental
remediation, fines, penalties or
indemnities), of such Person directly or
indirectly resulting from or based upon (i)
violation of any Environmental Law,
(ii) the generation, use, handling,
transportation, storage, treatment or
disposal of any Hazardous Materials, (iii)
exposure to any Hazardous Materials,
(iv) the release or threatened release of
any Hazardous Materials into the
environment or (v) any contract, agreement
or other consensual arrangement
pursuant to which liability is assumed or
imposed with respect to any of the
foregoing.
"ERISA": the
Employee Retirement Income Security Act of 1974, as amended
from time to time, or any successor
thereto, and the rules and regulations
issued thereunder, as from time to time in
effect.
"ERISA
AFFILIATE": when used with respect to an Employee Benefit Plan,
ERISA, the PBGC or a provision of the
Internal Revenue Code pertaining to
employee benefit plans, any Person that is
a member of any group of
organizations within the meaning of
Sections 414(b) or (c) of the Internal
Revenue Code or, solely with respect to the
applicable provisions of the
Internal Revenue Code, Sections 414(m) or
(o) of the Internal Revenue Code, of
which the Borrower or any Subsidiary is a
member.
"ESOP GUARANTY":
the guaranty of the 8.52% ESOP Note maturing 2008 in the
aggregate unpaid principal amount, as of
January 3, 2004, of $163,200,000.
"EURODOLLAR
ADVANCE": a portion of the Revolving Credit Loans selected by
the Borrower to bear interest during a
Eurodollar Interest Period selected by
the Borrower at a rate per annum based upon
a Eurodollar Rate determined with
reference to such Interest Period, all
pursuant to and in accordance with
Section 2.1 or 3.3.
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"EURODOLLAR
BUSINESS DAY": any Domestic Business Day, other than a Domestic
Business Day on which banks are not open
for dealings in Dollar deposits in the
interbank eurodollar market.
"EURODOLLAR
INTEREST PERIOD": the period commencing on any Eurodollar
Business Day selected by the Borrower in
accordance with Section 2.1 or Section
3.3 and ending one, two, three or six
months thereafter, as selected by the
Borrower in accordance with either such
Sections, subject to the following:
(i) if any
Interest Period would otherwise end on a day which is not a
Eurodollar Business Day, such Interest
Period shall be extended to the
immediately succeeding Eurodollar Business
Day unless the result of such
extension would be to carry the end of such
Interest Period into another
calendar month, in which event such
Interest Period shall end on the Eurodollar
Business Day immediately preceding such
day; and
(ii) if any
Interest Period shall begin on the last Eurodollar Business Day
of a calendar month (or on a day for which
there is no numerically corresponding
day in the calendar month at the end of
such Interest Period), such Interest
Period shall end on the last Eurodollar
Business Day of such latter calendar
month.
"EURODOLLAR
RATE": with respect to each Eurodollar Advance and as
determined by the Administrative Agent, the
rate of interest per annum (rounded,
if necessary, to the nearest 1/100 of 1%
or, if there is no nearest 1/100 of 1%,
then to the next higher 1/100 of 1%) equal
to a fraction, the numerator of which
is the rate per annum quoted by BNY at
approximately 11:00 A.M. (or as soon
thereafter as practicable) two Eurodollar
Business Days prior to the first day
of such Interest Period to leading banks in
the interbank eurodollar market as
the rate at which BNY is offering Dollar
deposits in an amount approximately
equal to its Commitment Percentage of such
Eurodollar Advance and having a
period to maturity approximately equal to
the Interest Period applicable to such
Eurodollar Advance, and the denominator of
which is an amount equal to 1.00
MINUS the aggregate of the then stated
maximum rates during such Interest Period
of all reserve requirements (including
marginal, emergency, supplemental and
special reserves), expressed as a decimal,
established by the Board of Governors
of the Federal Reserve System and any other
banking authority to which BNY and
other major United States money center
banks are subject, in respect of
eurocurrency liabilities.
"EVENT OF
DEFAULT": any of the events specified in Section 9.1, PROVIDED
that any requirement for the giving of
notice, the lapse of time, or both, or
any other condition has been satisfied.
"EXPIRATION
DATE": the first date, occurring after the Commitments shall
have terminated or been terminated in
accordance herewith, upon which there
shall be no Loans or Letters of Credit
outstanding.
"EXISTING FIVE
YEAR BANK INDEBTEDNESS": all Indebtedness under the Existing
Five Year Credit Agreement and all accrued
and unpaid monetary obligations of
the Borrower under the Existing Five Year
Credit Agreement.
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"EXISTING FIVE
YEAR CREDIT AGREEMENT": the Five Year Credit Agreement,
dated as of May 21, 2001, by and among the
Borrower, the lenders party thereto,
Credit Suisse First Boston and First Union
National Bank, as co-documentation
agents, and BNY, as administrative agent
thereunder, as amended.
"FACILITY FEE":
as defined in Section 3.11(a).
"FEDERAL FUNDS
EFFECTIVE RATE": for any period, a fluctuating interest rate
per annum equal for each day during such
period to the weighted average of the
rates on overnight Federal funds
transactions with members of the Federal
Reserve System arranged by Federal funds
brokers, as published for such day (or,
if such day is not a Domestic Business Day,
for the next preceding Domestic
Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not
so published for any day which is a
Domestic Business Day, the average (rounded,
if necessary, to the nearest 1/100 of 1%
or, if there is no nearest 1/100 of 1%,
then to the next higher 1/100 of 1%) of the
quotations for such day on such
transactions received by the Administrative
Agent from three Federal funds
brokers of recognized standing selected by
the Administrative Agent.
"FEES": as
defined in Section 3.2.
"FINANCIAL
STATEMENTS": as defined in Section 4.13.
"FOREIGN
LENDER": any Lender that is organized under the laws of a
jurisdiction other than the United States
of America, any State thereof or the
District of Columbia.
"GAAP":
generally accepted accounting principles set forth in the
opinions
and pronouncements of the Accounting
Principles Board and the American Institute
of Certified Public Accountants and
statements and pronouncements of the
Financial Accounting Standards Board or
such other principles as may be approved
by a significant segment of the accounting
profession, which are applicable to
the circumstances as of the date of
determination, consistently applied.
"GOVERNMENTAL
AUTHORITY": any foreign, federal, state, municipal or other
government, or any department, commission,
board, bureau, agency, public
authority or instrumentality thereof, or
any court or arbitrator.
"GRANTING
LENDER": as defined in Section 11.7(h).
"HAZARDOUS
MATERIALS": all explosive or radioactive substances or wastes
and all hazardous or toxic substances,
wastes or other pollutants, including
petroleum or petroleum distillates,
asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other
substances or wastes of any nature
regulated pursuant to any Environmental Law.
"HIGHEST LAWFUL RATE":
as to any Lender, the maximum rate of interest, if
any, which at any time or from time to time
may be contracted for, taken,
charged or received on the Loans or the
Notes or which may be owing to such
Lender pursuant to this Agreement under the
laws applicable to such Lender and
this Agreement.
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"INDEBTEDNESS":
as to any Person at a particular time, all items of such
Person which constitute, without
duplication, (a) indebtedness for borrowed
money or the deferred purchase price of
Property (other than trade payables and
accrued expenses incurred in the ordinary
course of business), (b) indebtedness
evidenced by notes, bonds, debentures or
similar instruments, (c) indebtedness
with respect to any conditional sale or
other title retention agreement, (d)
indebtedness arising under acceptance
facilities and the amount available to be
drawn under all letters of credit
(excluding for purposes of Sections 8.1 and
8.9 letters of credit obtained in the
ordinary course of business by the
Borrower or any Subsidiary) issued for the
account of such Person and, without
duplication, all drafts drawn thereunder to
the extent such Person shall not
have reimbursed the issuer in respect of
the issuer's payment of such drafts,
(e) that portion of any obligation of such
Person, as lessee, which in
accordance with GAAP is required to be
capitalized on a balance sheet of such
Person, (f) all indebtedness described in
(a) - (e) above secured by any Lien on
any Property owned by such Person even
though such Person shall not have assumed
or otherwise become liable for the payment
thereof (other than carriers',
warehousemen's, mechanics', repairmen's or
other like non-consensual Liens
arising in the ordinary course of
business), and (g) Contingent Obligations in
respect of any indebtedness described in
items (a) - (f) above, PROVIDED that,
for purposes of this definition,
Indebtedness shall not include Intercompany
Debt and obligations in respect of interest
rate caps, collars, exchanges, swaps
or other, similar agreements.
"INDEMNIFIED
LIABILITIES": as defined in Section 11.5.
"INDEMNIFIED
PERSON": as defined in Section 11.10.
"INTERCOMPANY
DEBT": (i) Indebtedness of the Borrower to one or more of the
Subsidiaries of the Borrower and (ii)
demand Indebtedness of one or more of the
Subsidiaries of the Borrower to the
Borrower or any one or more of the other
Subsidiaries of the Borrower.
"INTERCOMPANY
DISPOSITION": a Disposition by the Borrower or any of the
Subsidiaries of the Borrower to the
Borrower or to any of the other Subsidiaries
of the Borrower.
"INTEREST
PAYMENT DATE": (i) as to any ABR Advance, the last day of each
March, June, September and December,
commencing on the first of such days to
occur after such ABR Advance is made or any
Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Swing Line
Loan, the day on which the outstanding
principal balance of such Swing Line Loan
shall become due and payable in
accordance with Section 2.2(a), (iii) as to
any Eurodollar Advance in respect of
which the Borrower has selected a
Eurodollar Interest Period of one, two or
three months, the last day of such
Eurodollar Interest Period, (iv) as to any
Competitive Bid Loan in respect of which
the Borrower has selected a Competitive
Interest Period of 90 days or less the last
day of such Competitive Interest
Period and (v) as to any Eurodollar Advance
or Competitive Bid Loan in respect
of which the Borrower has selected an
Interest Period greater than three months
or 90 days, as the case may be, the last
day of the third month or the 90th day,
as the case may be, of such Interest Period
and the last day of such Interest
Period.
"INTEREST
PERIOD": a Eurodollar Interest Period, a Swing Line Interest
Period or a Competitive Interest Period, as
the case may be.
10
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"INTERNAL
REVENUE CODE": the Internal Revenue Code of 1986, as amended
from
time to time, or any successor thereto, and
the rules and regulations issued
thereunder, as from time to time in
effect.
"INVITATION TO
BID": an invitation by the Administrative Agent to the
Lenders to make Competitive Bids in the
form of Exhibit G.
"ISSUE" OR
"ISSUANCE": when used with respect to a Letter of Credit, shall
be deemed to include any increase in the
amount of such Letter of Credit.
"ISSUER":
BNY.
"LENDER": as
defined in the preamble; such term to also include the Swing
Line Lender and the Issuer where the
context hereof requires or permits such
inclusion.
"LETTER OF
CREDIT": as defined in Section 2.8.
"LETTER OF
CREDIT COMMITMENT": the commitment of the Issuer to issue
Letters of Credit in accordance with the
terms hereof in an aggregate
outstanding face amount not exceeding
$150,000,000 (or, if less, the Aggregate
Commitment Amount) at any time, as the same
may be reduced pursuant to Section
2.6.
"LETTER OF
CREDIT EXPOSURE": at any time, (a) in respect of all Lenders,
the sum, without duplication, of (i) the
maximum aggregate amount which may be
drawn under all unexpired Letters of Credit
at such time (whether the conditions
for drawing thereunder have or may be
satisfied), (ii) the aggregate amount, at
such time, of all unpaid drafts (which have
not been dishonored) drawn under all
Letters of Credit, and (iii) the aggregate
unpaid principal amount of the
Reimbursement Obligations at such time, and
(b) in respect of any Lender, an
amount equal to such Lender's Commitment
Percentage at such time multiplied by
the amount determined under clause (a) of
this definition.
"LETTER OF
CREDIT PARTICIPATION": with respect to each Lender, its
obligations to the Issuer under Section
2.9.
"LETTER OF
CREDIT PARTICIPATION FEE": as defined in Section 3.12.
"LETTER OF
CREDIT REQUEST": a request in the form of Exhibit J.
"LIEN": any
mortgage, pledge, hypothecation, assignment, lien, deposit
arrangement, charge, encumbrance or other
security arrangement or security
interest of any kind, or the interest of a
vendor or lessor under any
conditional sale agreement, capital lease
or other title retention agreement.
"LOAN": a
Revolving Credit Loan, a Competitive Bid Loan or a Swing Line
Loan, as the case may be.
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"LOAN
DOCUMENTS": this Agreement and, upon the execution and delivery
thereof, the Notes, if any, and the
Reimbursement Agreements.
"LOANS": the
Revolving Credit Loans, the Competitive Bid Loans and the
Swing Line Loans.
"MANDATORY BORROWING":
as defined in Section 2.2(b).
"MARGIN STOCK":
any "margin stock", as said term is defined in Regulation U
of the Board of Governors of the Federal
Reserve System, as the same may be
amended or supplemented from time to
time.
"MATERIAL
ADVERSE": with respect to any change or effect, a material
adverse change in, or effect on, as the
case may be, (i) the financial
condition, operations, business, or
Property of the Borrower and the
Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its
obligations under the Loan Documents, or
(iii) the ability of the Administrative
Agent, the Issuer or any Lender to enforce
the Loan Documents.
"MOODY'S":
Moody's Investors Service, Inc.
"MULTIEMPLOYER
PLAN": a Pension Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NEGOTIATED
RATE": with respect to each Swing Line Loan, the rate per annum
agreed to in writing by the Borrower and
the Swing Line Lender as the interest
rate which such Swing Line Loan shall
bear.
"NET WORTH": at
any date of determination, the sum of all amounts which
would be included under shareholders'
equity on a Consolidated balance sheet of
the Borrower and the Subsidiaries
determined in accordance with GAAP as at such
date.
"NOTE": with
respect to each Lender that has requested one, a promissory
note evidencing such Lender's Loans payable
to the order of such Lender (or, if
required by such Lender, to such Lender and
its registered assigns),
substantially in the form of Exhibit B.
"OTHER CREDIT
AGREEMENT": the 364 Day Credit Agreement, dated as of June
11, 2004, by and among the Borrower, the
lenders party thereto, Bank of America,
N.A., Credit Suisse First Boston, and
Wachovia Securities, Inc., as
co-syndication agents, SunTrust Bank, as
documentation agent, and BNY, as
administrative agent, as the same may be
amended, supplemented, replaced or
otherwise modified from time to time.
"PARTICIPANT":
as defined in Section 11.7(e).
"PBGC": the Pension
Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA, or any
Governmental Authority succeeding to the
functions thereof.
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"PENSION PLAN":
at any time, any Employee Benefit Plan (including a
Multiemployer Plan) subject to Section 302
of ERISA or Section 412 of the
Internal Revenue Code, the funding
requirements of which are, or at any time
within the six years immediately preceding
the time in question, were in whole
or in part, the responsibility of the
Borrower, any Subsidiary or an ERISA
Affiliate.
"PERSON": any
individual, firm, partnership, limited liability company,
joint venture, corporation, association,
business trust, joint stock company,
unincorporated association, trust,
Governmental Authority or any other entity,
whether acting in an individual, fiduciary,
or other capacity, and for the
purpose of the definition of "ERISA
Affiliate", a trade or business.
"PRICING LEVEL":
Pricing Level I, Pricing Level II, Pricing Level III,
Pricing Level IV, Pricing Level V, Pricing
Level VI or Pricing Level VII, as the
case may be.
"PRICING LEVEL
I": any time when the senior unsecured long term debt rating
of the Borrower by (x) S&P is AA - or
higher or (y) Moody's is Aa3 or higher.
"PRICING LEVEL
II": any time when (i) the senior unsecured long term debt
rating of the Borrower by (x) S&P is A+
or higher or (y) Moody's is A1 or higher
and (ii) Pricing Level I does not
apply.
"PRICING LEVEL
III": any time when (i) the senior unsecured long term debt
rating of the Borrower by (x) S&P is A
or higher or (y) Moody's is A2 or higher
and (ii) neither Pricing Level I nor II
applies.
"PRICING LEVEL
IV": any time when (i) the senior unsecured long term debt
rating of the Borrower by (x) S&P is A
- or higher or (y) Moody's is A3 or
higher and (ii) none of Pricing Level I, II
or III applies.
"PRICING LEVEL
V": any time when (i) the senior unsecured long term debt
rating of the Borrower by (x) S&P is
BBB+ or higher or (y) Moody's is Baa1 or
higher and (ii) none of Pricing Level I,
II, III or IV applies.
"PRICING LEVEL
VI": any time when (i) the senior unsecured long term debt
rating of the Borrower by (x) S&P is
BBB or higher or (y) Moody's is Baa2 or
higher and (ii) none of Pricing Level I,
II, III, IV or V applies.
"PRICING LEVEL
VII": any time when none of Pricing Level I, II, III, IV, V
or VI applies.
Notwithstanding
each definition of Pricing Level set forth above, if at any
time the senior unsecured long term debt
ratings of the Borrower by S&P and
Moody's differ by more than one equivalent
rating level, then the applicable
Pricing Level shall be determined based
upon the lower such rating adjusted
upwards to the next higher rating
level.
"PRINCIPAL
OFFICE": from time to time, the principal office of BNY,
located
on the date hereof in New York, New
York.
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"PROHIBITED
TRANSACTION": a transaction that is prohibited under Section
4975 of the Internal Revenue Code or
Section 406 of ERISA and not exempt under
Section 4975 of the Internal Revenue Code
or Section 408 of ERISA.
"PROPERTY": in
respect of any Person, all types of real, personal or mixed
property and all types of tangible or
intangible property owned or leased by
such Person.
"REGULATORY
CHANGE": (a) the introduction or phasing in of any law, rule or
regulation after the date hereof, (b) the
issuance or promulgation after the
date hereof of any directive, guideline or
request from any central bank or
United States or foreign Governmental
Authority (whether or not having the force
of law), or (c) any change after the date
hereof in the interpretation of any
existing law, rule, regulation, directive,
guideline or request by any central
bank or United States or foreign
Governmental Authority charged with the
administration thereof, in each case
applicable to the transactions contemplated
by this Agreement.
"REIMBURSEMENT
AGREEMENT": as defined in Section 2.8(b).
"REIMBURSEMENT
OBLIGATIONS": all obligations and liabilities of the
Borrower due and to become due (a) under
the Reimbursement Agreements and (b)
hereunder in respect of Letters of
Credit.
"RELATED
PARTIES": with respect to any specified Person, such Person's
Affiliates and the respective directors,
officers, employees, agents and
advisors of such Person and such Person's
Affiliates.
"REPLACED
LENDER": as defined in Section 3.13.
"REPLACEMENT
LENDER": as defined in Section 3.13.
"REPORTABLE
EVENT": with respect to any Pension Plan, (a) any event set
forth in Sections 4043(c) (other than a
Reportable Event as to which the 30 day
notice requirement is waived by the PBGC
under applicable regulations), 4062(e)
or 4063(a) of ERISA, or the regulations
thereunder, (b) an event requiring the
Borrower, any Subsidiary or any ERISA
Affiliate to provide security to a Pension
Plan under Section 401(a)(29) of the
Internal Revenue Code, or (c) the failure
to make any payment required by Section
412(m) of the Internal Revenue Code.
"REQUIRED
LENDERS": (a) at any time prior to the Commitment Termination
Date or such earlier date as all of the
Commitments shall have terminated or
been terminated in accordance herewith,
Lenders having Commitment Amounts equal
to or more than 51% of the Aggregate
Commitment Amount, and (b) at all other
times, Lenders having Credit Exposure equal
to or more than 51% of the Aggregate
Credit Exposure.
"RESTRICTED
PAYMENT": with respect to any Person, any of the following,
whether direct or indirect: (a) the
declaration or payment by such Person of any
dividend or distribution on any class of
Stock of such Person, other than a
dividend payable solely in shares of that
class of Stock to the holders of such
class, (b) the declaration or payment by
such Person of any distribution on any
other type or class of equity interest or
equity investment in such Person, and
(c) any redemption,
14
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retirement, purchase or acquisition of, or
sinking fund or other similar payment
in respect of, any class of Stock of, or
other type or class of equity interest
or equity investment in, such Person.
"RESTRICTIVE
AGREEMENT": as defined in Section 8.7.
"REVOLVING
CREDIT LOANS": as defined in Section 2.1(a).
"S&P":
Standard & Poor's, a division of The McGraw-Hill Companies,
Inc.
"SOLVENT": with
respect to any Person on a particular date, the condition
that on such date, (i) the fair value of
the Property of such Person is greater
than the total amount of liabilities,
including, without limitation, contingent
liabilities, of such Person, (ii) the
present fair salable value of the assets
of such Person is not less than the amount
that will be required to pay the
probable liability of such Person on its
debts as they become absolute and
matured, (iii) such Person does not intend
to, and does not believe that it
will, incur debts or liabilities beyond
such Person's ability to pay as such
debts and liabilities mature, and (iv) such
Person is not engaged in business or
a transaction, and is not about to engage
in business or a transaction, for
which such Person's Property would
constitute an unreasonably small amount of
capital. For purposes of this definition,
the amount of any contingent liability
at any time shall be computed as the amount
that, in light of all the facts and
circumstances existing at such time,
represents the amount that can reasonably
be expected to become an actual or matured
liability after taking into account
probable payments by co-obligors.
"SPECIAL
COUNSEL": such counsel as the Administrative Agent may engage
from
time to time.
"SUBSIDIARY": at
any time and from time to time, any corporation,
association, partnership, limited liability
company, joint venture or other
business entity of which the Borrower
and/or any Subsidiary of the Borrower,
directly or indirectly at such time, either
(a) in respect of a corporation,
owns or controls more than 50% of the
outstanding stock having ordinary voting
power to elect a majority of the board of
directors or similar managing body,
irrespective of whether a class or classes
shall or might have voting power by
reason of the happening of any contingency,
or (b) in respect of an association,
partnership, limited liability company,
joint venture or other business entity,
is entitled to share in more than 50% of
the profits and losses, however
determined.
"SWING LINE
COMMITMENT": the commitment of the Swing Line Lender to make
Swing Line Loans in accordance with the
terms hereof in an aggregate outstanding
principal amount not exceeding $100,000,000
(or, if less, the Aggregate
Commitment Amount) at any time, as the same
may be reduced pursuant to Section
2.6.
"SWING LINE
COMMITMENT PERIOD": the period from the Effective Date to, but
excluding, the Swing Line Termination
Date.
"SWING LINE
EXPOSURE": at any time, in respect of any Lender, an amount
equal to the aggregate principal balance of
Swing Line Loans at such time
multiplied by such Lender's Commitment
Percentage at such time.
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"SWING LINE
INTEREST PERIOD": as to any Swing Line Loan, the period
commencing on the date of such Swing Line
loan and ending on the date set forth
by the Borrower in the Borrowing Request
with respect to such Swing Line Loan,
PROVIDED that the last day of any Swing
Line Interest Period shall not be
earlier than one day after the date of such
Swing Line Loan or later than 7 days
after the date of such Swing Line Loan and
in no event later than the Swing Line
Termination Date, and PROVIDED FURTHER that
if any Swing Line Interest Period
would end on a day other than a Domestic
Business Day, such Interest Period
shall be extended to the next succeeding
Domestic Business Day.
"SWING LINE
LENDER": BNY.
"SWING LINE
LOAN" and "SWING LINE LOANS": as defined in Section 2.2(a).
"SWING LINE
MATURITY DATE": as defined in Section 2.2(a).
"SWING LINE
PARTICIPATION AMOUNT": as defined in Section 2.2(c).
"SWING LINE
TERMINATION DATE": the date which is 7 Domestic Business Days
prior to the Commitment Termination
Date.
"TANGIBLE NET
WORTH": at any date of determination, Net Worth less all
assets of the Borrower and its Subsidiaries
included in such Net Worth,
determined on a Consolidated basis at such
date, that would be classified as
intangible assets in accordance with
GAAP.
"TERMINATION
EVENT": with respect to any Pension Plan, (a) a Reportable
Event, (b) the termination of a Pension
Plan under Section 4041(c) of ERISA, or
the filing of a notice of intent to
terminate a Pension Plan under Section
4041(c) of ERISA, or the treatment of a
Pension Plan amendment as a termination
under Section 4041(e) of ERISA (except an
amendment made after such Pension Plan
satisfies the requirement for a standard
termination under Section 4041(b) of
ERISA), (c) the institution of proceedings
by the PBGC to terminate a Pension
Plan under Section 4042 of ERISA, or (d)
the appointment of a trustee to
administer any Pension Plan under Section
4042 of ERISA.
"TOTAL
CAPITALIZATION": at any date, the sum of the Borrower's
Consolidated
Indebtedness and shareholders' equity on
such date, determined in accordance
with GAAP.
"TYPE": with
respect to any Revolving Credit Loan, the characteristic of
such Loan as an ABR Advance or a Eurodollar
Advance, each of which constitutes a
Type of Revolving Credit Loan.
"UNQUALIFIED
AMOUNT": as defined in Section 3.4(c).
"UPSTREAM
DIVIDENDS": as defined in Section 8.7.
"UTILIZATION
FEE": as defined in Section 3.11(b).
16
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1.2 PRINCIPLES OF
CONSTRUCTION
(a) All capitalized
terms defined in this Agreement shall have the
meanings given such capitalized terms
herein when used in the other Loan
Documents or in any certificate, opinion or
other document made or delivered
pursuant hereto or thereto, unless
otherwise expressly provided therein.
(b) Unless otherwise
expressly provided herein, the word "FISCAL"
when used herein shall refer to the
relevant fiscal period of the Borrower. As
used in the Loan Documents and in any
certificate, opinion or other document
made or delivered pursuant thereto,
accounting terms not defined in Section 1.1,
and accounting terms partly defined in
Section 1.1, to the extent not defined,
shall have the respective meanings given to
them under GAAP.
(c) The words
"HEREOF", "HEREIN", "HERETO" and "HEREUNDER" and
similar words when used in each Loan
Document shall refer to such Loan Document
as a whole and not to any particular
provision of such Loan Document, and
Section, schedule and exhibit references
contained therein shall refer to
Sections thereof or schedules or exhibits
thereto unless otherwise expressly
provided therein.
(d) All references
herein to a time of day shall mean the then
applicable time in New York, New York,
unless otherwise expressly provided
herein.
(e) Section headings
have been inserted in the Loan Documents for
convenience only and shall not be construed
to be a part thereof. Unless the
context otherwise requires, words in the
singular number include the plural, and
words in the plural include the
singular.
(f) Whenever in any
Loan Document or in any certificate or other
document made or delivered pursuant
thereto, the terms thereof require that a
Person sign or execute the same or refer to
the same as having been so signed or
executed, such terms shall mean that the
same shall be, or was, duly signed or
executed by (i) in respect of any Person
that is a corporation, any duly
authorized officer thereof, and (ii) in
respect of any other Person (other than
an individual), any analogous counterpart
thereof.
(g) The words
"INCLUDE" and "INCLUDING", when used in each Loan
Document, shall mean that the same shall be
included "without limitation",
unless otherwise specifically provided.
2. AMOUNT AND TERMS OF
LOANS
2.1 Revolving Credit
Loans
(a) Subject to the
terms and conditions hereof, each Lender
severally (and not jointly) agrees to make
loans under this Agreement (each a
"REVOLVING CREDIT LOAN" and, collectively
with each other Revolving Credit Loan
of such Lender and/or with each Revolving
Credit Loan of each other Lender, the
"REVOLVING CREDIT LOANS") to the Borrower
from time to time during the
Commitment Period, during which period the
Borrower may borrow, prepay and
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reborrow in accordance with the provisions
hereof. Immediately after making each
Revolving Credit Loan and after giving
effect to all Swing Line Loans and
Competitive Bid Loans repaid and all
Reimbursement Obligations paid on the same
date, the Aggregate Credit Exposure will
not exceed the Aggregate Commitment
Amount. With respect to each Lender, at the
time of the making of any Revolving
Credit Loan, the sum of (I) the principal
amount of such Lender's Revolving
Credit Loan constituting a part of the
Revolving Credit Loans to be made, (II)
the aggregate principal balance of all
other Revolving Credit Loans (exclusive
of Revolving Credit Loans which are repaid
with the proceeds of, and
simultaneously with the incidence of, the
Revolving Credit Loans to be made)
then outstanding from such Lender and (III)
the product of (A) such Lender's
Commitment Percentage and (B) the sum of
(1) the aggregate principal balance of
all Swing Line Loans (exclusive of Swing
Line Loans which are repaid with the
proceeds of, and simultaneously with the
incurrence of, the Revolving Credit
Loans to be made) then outstanding and (2)
the Letter of Credit Exposure of all
Lenders, will not exceed the Commitment of
such Lender at such time. At the
option of the Borrower, indicated in a
Borrowing Request, Revolving Credit Loans
may be made as ABR Advances or Eurodollar
Advances.
(b) The aggregate
outstanding principal balance of all Revolving
Credit Loans shall be due and payable on
the Commitment Termination Date or on
such earlier date upon which all of the
Commitments shall have been voluntarily
terminated by the Borrower in accordance
with Section 2.6.
2.2 SWING LINE LOANS
(a) Subject to the
terms and conditions hereof, the Swing Line
Lender agrees to make loans under this
Agreement (each a "SWING LINE LOAN" and,
collectively, the "SWING LINE LOANS") to
the Borrower from time to time during
the Swing Line Commitment Period. Swing
Line Loans (i) may be repaid and
reborrowed in accordance with the
provisions hereof, (ii) shall not, immediately
after giving effect thereto, result in the
Aggregate Credit Exposure exceeding
the Aggregate Commitment Amount, and (iii)
shall not, immediately after giving
effect thereto, result in the aggregate
outstanding principal balance of all
Swing Line Loans exceeding the Swing Line
Commitment. The Swing Line Lender
shall not be obligated to make any Swing
Line Loan at a time when any Lender
shall be in default of its obligations
under this Agreement unless the Swing
Line Lender has entered into arrangements
satisfactory to it and the Borrower to
eliminate the Swing Line Lender's risk with
respect to such defaulting Lender's
participation in such Swing Line Loan. The
Swing Line Lender will not make a
Swing Line Loan if the Administrative
Agent, or any Lender by notice to the
Swing Line Lender and the Borrower no later
than one Domestic Business Day prior
to the Borrowing Date with respect to such
Swing Line Loan, shall have
determined that the conditions set forth in
Sections 5 and/or 6, as applicable,
have not been satisfied and such conditions
remain unsatisfied as of the
requested time of the making of such Loan.
Each Swing Line Loan shall be due and
payable on the day (the "SWING LINE
MATURITY DATE") being the earliest of the
last day of the Swing Line Interest Period
applicable thereto, the date on which
the Swing Line Commitment shall have been
voluntarily terminated by the Borrower
in accordance with Section 2.6, and the
date on which the Loans shall become due
and payable pursuant to the provisions
hereof, whether by acceleration or
otherwise. Each Swing Line Loan shall bear
interest at the Negotiated Rate
applicable thereto.
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The Swing Line Lender shall disburse the
proceeds of Swing Line Loans at its
office designated in Section 11.2 by
crediting such proceeds to an account of
the Borrower maintained with the Swing Line
Lender.
(b) On any Domestic
Business Day, the Swing Line Lender may, in its
sole discretion, give notice to the Lenders
and the Borrower that such
outstanding Swing Line Loan shall be funded
with a borrowing of Revolving Credit
Loans (PROVIDED that such notice shall be
deemed to have been automatically
given upon the occurrence of a Default or
an Event of Default under Sections
9.1(h), (i) or (j)), in which case a
borrowing of Revolving Credit Loans made as
ABR Advances (each such borrowing, a
"MANDATORY BORROWING"), shall be made by
all Lenders PRO RATA based on each such
Lender's Commitment Percentage on the
Domestic Business Day immediately
succeeding the giving of such notice. The
proceeds of each Mandatory Borrowing shall
be remitted directly to the Swing
Line Lender to repay such outstanding Swing
Line Loan. Each Lender irrevocably
agrees to make a Revolving Credit Loan
pursuant to each Mandatory Borrowing in
the amount and in the manner specified in
the preceding sentence and on the date
specified in writing by the Swing Line
Lender notwithstanding: (i) whether the
amount of such Mandatory Borrowing complies
with the minimum amount for Loans
otherwise required hereunder, (ii) whether
any condition specified in Section 6
is then unsatisfied, (iii) whether a
Default or an Event of Default then exists,
(iv) the Borrowing Date of such Mandatory
Borrowing, (v) the aggregate principal
amount of all Loans then outstanding, (vi)
the Aggregate Credit Exposure at such
time and (vii) the amount of the
Commitments at such time.
(c) Upon each receipt
by a Lender of notice from the Administrative
Agent, such Lender shall purchase
unconditionally, irrevocably, and severally
(and not jointly) from the Swing Line
Lender a participation in the outstanding
Swing Line Loans (including accrued
interest thereon) in an amount equal to the
product of its Commitment Percentage and
the outstanding balance of the Swing
Line Loans (each, a "SWING LINE
PARTICIPATION AMOUNT"). Each Lender shall also
be liable for an amount equal to the
product of its Commitment Percentage and
any amounts paid by the Borrower pursuant
to this Section that are subsequently
rescinded or avoided, or must otherwise be
restored or returned. Such
liabilities shall be unconditional and
without regard to the occurrence of any
Default or Event of Default or the
compliance by the Borrower with any of its
obligations under the Loan Documents.
(d) In furtherance of
Section 2.2(c), upon each receipt by a Lender
of notice from the Administrative Agent,
such Lender shall promptly make
available to the Administrative Agent for
the account of the Swing Line Lender
its Swing Line Participation Amount at the
office of the Administrative Agent
specified in Section 11.2, in lawful money
of the United States and in
immediately available funds. The
Administrative Agent shall deliver the payments
made by each Lender pursuant to the
immediately preceding sentence to the Swing
Line Lender promptly upon receipt thereof
in like funds as received. Each Lender
hereby indemnifies and agrees to hold
harmless the Administrative Agent and the
Swing Line Lender from and against any and
all losses, liabilities (including
liabilities for penalties), actions, suits,
judgments, demands, costs and
expenses resulting from any failure on the
part of such Lender to pay, or from
any delay in paying, the Administrative
Agent any amount such Lender is required
by notice from the Administrative Agent to
pay in accordance with this Section
(except in respect of
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losses, liabilities or other obligations
suffered by the Administrative Agent or
the Swing Line Lender, as the case may be,
resulting from the gross negligence
or willful misconduct of the Administrative
Agent or the Swing Line Lender, as
the case may be), and such Lender shall pay
interest to the Administrative Agent
for the account of the Swing Line Lender
from the date such amount was due until
paid in full, on the unpaid portion
thereof, at a rate of interest per annum,
whether before or after judgment, equal to
(i) from the date such amount was due
until the third day therefrom, the Federal
Funds Effective Rate, and (ii)
thereafter, the Federal Funds Effective
Rate PLUS 2%, payable upon demand by the
Swing Line Lender. The Administrative Agent
shall distribute such interest
payments to the Swing Line Lender upon
receipt thereof in like funds as
received.
(e) Whenever the
Administrative Agent is reimbursed by the Borrower
for the account of the Swing Line Lender
for any payment in connection with
Swing Line Loans and such payment relates
to an amount previously paid by a
Lender pursuant to this Section, the
Administrative Agent will promptly remit
such payment to such Lender.
2.3 NOTICE OF BORROWING
REVOLVING CREDIT LOANS AND SWING LINE LOANS
The Borrower agrees to notify the Administrative Agent (and
with
respect to a Swing Line Loan, the Swing
Line Lender), which notification shall
be irrevocable, no later than (a) 12:00
Noon on the proposed Borrowing Date in
the case of Swing Line Loans, (b) 10:00
A.M. on the proposed Borrowing Date in
the case of Revolving Credit Loans to
consist of ABR Advances and (c) 10:00 A.M.
at least two Eurodollar Business Days prior
to the proposed Borrowing Date in
the case of Revolving Credit Loans to
consist of Eurodollar Advances. Each such
notice shall specify (i) the aggregate
amount requested to be borrowed under the
Commitments or the Swing Line Commitment,
(ii) the proposed Borrowing Date,
(iii) whether a borrowing of Revolving
Credit Loans is to be of ABR Advances or
Eurodollar Advances, and the amount of each
thereof (iv) the Interest Period for
such Eurodollar Advances and (v) the Swing
Line Interest Period for, and the
amount of, each Swing Line Loan. Each such
notice shall be promptly confirmed by
delivery to the Administrative Agent (and,
with respect to a Swing Line Loan,
the Swing Line Lender) of a Borrowing
Request. Each Eurodollar Advance to be
made on a Borrowing Date, when aggregated
with all amounts to be Converted to
Eurodollar Advances on such date and having
the same Interest Period as such
Eurodollar Advance, shall equal no less
than $10,000,000, or an integral
multiple of $1,000,000 in excess thereof.
Each ABR Advance made on each
Borrowing Date shall equal no less than
$5,000,000 or an integral multiple of
$500,000 in excess thereof. Each Swing Line
Loan made on each Borrowing Date
shall equal no less than $1,000,000 or an
integral multiple of $500,000 in
excess thereof. The Administrative Agent
shall promptly notify each Lender (by
telephone or otherwise, such notification
to be confirmed by fax or other
writing) of each such Borrowing Request.
Subject to its receipt of each such
notice from the Administrative Agent and
subject to the terms and conditions
hereof, (A) each Lender shall make
immediately available funds available to the
Administrative Agent at the address
therefor set forth in Section 11.2 not later
than 1:00 P.M. on each Borrowing Date in an
amount equal to such Lender's
Commitment Percentage of the Revolving
Credit Loans requested by the Borrower on
such Borrowing Date and/or (B) the Swing
Line Lender shall make immediately
available funds available to the Borrower
on such Borrowing Date in an amount
equal to the Swing Line Loan requested by
the Borrower.
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2.4 COMPETITIVE BID LOANS
AND PROCEDURE
(a) Subject to the
terms and conditions hereof, the Borrower may
request competitive bid loans under this
Agreement (each a "COMPETITIVE BID
LOAN") during the Commitment Period. In
order to request Competitive Bids, the
Borrower shall deliver by hand or fax to
the Administrative Agent a duly
completed Competitive Bid Request not later
than 11:00 A.M., one Domestic
Business Day before the proposed Borrowing
Date therefor. A Competitive Bid
Request that does not conform substantially
to the format of Exhibit F may be
rejected by the Administrative Agent in the
Administrative Agent's reasonable
discretion, and the Administrative Agent
shall promptly notify the Borrower of
such rejection by fax and telephone. Each
Competitive Bid Request shall specify
(x) the proposed Borrowing Date for the
Competitive Bid Loans then being
requested (which shall be a Domestic
Business Day) and the aggregate principal
amount thereof and (y) the Competitive
Interest Period or Interest Periods
(which shall not exceed ten different
Interest Periods in a single Competitive
Bid Request), with respect thereto (which
may not end after the Domestic
Business Day immediately preceding the
Commitment Termination Date). Promptly
after its receipt of each Competitive Bid
Request that is not rejected as
aforesaid, the Administrative Agent shall
invite by fax (in the form of Exhibit
G) the Lenders to bid, on the terms and
conditions of this Agreement, to make
Competitive Bid Loans pursuant to such
Competitive Bid Request.
(b) Each Lender, in
its sole and absolute discretion, may make one
or more Competitive Bids to the Borrower
responsive to a Competitive Bid
Request. Each Competitive Bid by a Lender
must be received by the Administrative
Agent not later than 10:00 A.M. on the
proposed Borrowing Date for the relevant
Competitive Bid Loan. Multiple bids will be
accepted by the Administrative
Agent. Bids to make Competitive Bid Loans
that do not conform substantially to
the format of Exhibit H may be rejected by
the Administrative Agent after
conferring with, and upon the instruction
of, the Borrower, and the
Administrative Agent shall notify the
Lender making such nonconforming bid of
such rejection as soon as practicable. Each
Competitive Bid shall be irrevocable
and shall specify (x) the principal amount
(which (1) shall be in a minimum
principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess
thereof, and (2) may equal the entire
principal amount requested by the
Borrower) of the Competitive Bid Loan or
Competitive Bid Loans that the Lender
is willing to make to the Borrower, (y) the
Competitive Bid Rate or Rates at
which the Lender is prepared to make such
Competitive Bid Loan or Competitive
Bid Loans, and (z) the Competitive Interest
Period with respect to each such
Competitive Bid Loan and the last day
thereof. If any Lender shall elect not to
make a Competitive Bid, such Lender shall
so notify the Administrative Agent by
fax not later than 10:00 A.M. on the
proposed Borrowing Date therefor, PROVIDED
that the failure by any Lender to give any
such notice shall not obligate such
Lender to make any Competitive Bid Loan in
connection with the relevant
Competitive Bid Request.
(c) With respect to
each Competitive Bid Request, the
Administrative Agent shall (i) notify the
Borrower by fax by 11:00 A.M. on the
proposed Borrowing Date with respect
thereto of each Competitive Bid made, the
Competitive Bid Rate applicable thereto and
the identity of the Lender that made
such Competitive Bid, and (ii) send a list
of all Competitive Bids to the
Borrower for its records as soon as
practicable after completion of the bidding
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process. Each notice and list sent by the
Administrative Agent pursuant to this
Section 2.4(c) shall list the Competitive
Bids in ascending yield order.
(d) The Borrower may
in its sole and absolute discretion, subject
only to the provisions of this Section
2.4(d), accept or reject any Competitive
Bid made in accordance with the procedures
set forth in this Section 2.4, and
the Borrower shall notify the
Administrative Agent by telephone, confirmed by
fax in the form of a Competitive Bid
Accept/Reject Letter, whether and to what
extent it has decided to accept or reject
any or all of such Competitive Bids
not later than 12:00 Noon on the proposed
Borrowing Date therefor, PROVIDED that
the failure by the Borrower to give such
notice shall be deemed to be a
rejection of all such Competitive Bids. In
connection with each acceptance of
one or more Competitive Bids by the
Borrower:
(1) the Borrower shall
not accept a Competitive Bid made at a
particular Competitive Bid Rate if the
Borrower has decided to reject a
Competitive Bid made at a lower Competitive
Bid Rate unless the acceptance of
such lower Competitive Bid would subject
the Borrower to any requirement to
withhold any taxes or deduct any amount
from any amounts payable under the Loan
Documents, in which case the Borrower may
reject such lower Competitive Bid,
(2) the aggregate
amount of the Competitive Bids accepted by
the Borrower shall not exceed the principal
amount specified in the Competitive
Bid Request therefor,
(3) if the Borrower shall desire to
accept a Competitive Bid
made at a particular Competitive Bid Rate,
it must accept all other Competitive
Bids at such Competitive Bid Rate, except
for any such Competitive Bid the
acceptance of which would subject the
Borrower to any requirement to withhold
any taxes or deduct any amount from any
amounts payable under the Loan
Documents, PROVIDED that if the acceptance
of all such other Competitive Bids
would cause the aggregate amount of all
such accepted Competitive Bids to exceed
the amount requested, then such acceptance
shall be made pro rata in accordance
with the amount of each such Competitive
Bid at such Competitive Bid Rate,
(4) except pursuant to
clause (3) above, no Competitive Bid
shall be accepted unless the Competitive
Bid Loan with respect thereto shall be
in a minimum principal amount of $5,000,000
or an integral multiple of
$1,000,000 in excess thereof, and
(5) no Competitive Bid
shall be accepted and no Competitive
Bid Loan shall be made, if immediately
after giving effect thereto, the
Aggregate Credit Exposure would exceed the
Aggregate Commitment Amount.
(e) The Administrative
Agent shall promptly fax to each bidding
Lender (with a copy to the Borrower) a
Competitive Bid Accept/Reject Letter
advising such Lender whether its
Competitive Bid has been accepted (and if
accepted, in what amount and at what
Competitive Bid Rate), and each successful
bidder so notified will thereupon become
bound, subject to the other applicable
conditions hereof, to make the Competitive
Bid Loan in respect of which each of
its Competitive Bids has been accepted by
making immediately available funds
available to the
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Administrative Agent at its address set
forth in Section 11.2 not later than
1:00 P.M. on the Borrowing Date for such
Competitive Bid Loan in the amount
thereof.
(f) Anything herein to
the contrary notwithstanding, if the
Administrative Agent shall elect to submit
a Competitive Bid in its capacity as
a Lender, it shall submit such bid directly
to the Borrower not later than 9:30
A.M. on the relevant proposed Borrowing
Date.
(g) All notices
required by this Section shall be given in
accordance with Section 11.2.
2.5 USE OF PROCEEDS
The Borrower agrees that the proceeds of the Loans and Letters
of
Credit shall be used solely for its general
corporate purposes not inconsistent
with the provisions hereof, including as a
backup for commercial paper issued by
the Borrower. Notwithstanding anything to
the contrary contained in any Loan
Document, the Borrower further agrees that
no part of the proceeds of any Loan
or Letter of Credit will be used, directly
or indirectly, and whether
immediately, incidentally or ultimately (i)
for a purpose which violates any
law, rule or regulation of any Governmental
Authority, including the provisions
of Regulations U or X of the Board of
Governors of the Federal Reserve System,
as amended or any provision of this
Agreement, including, without limitation,
the provisions of Section 4.9 and (ii) to
make a loan to any director or
executive officer of the Borrower or any
Subsidiary.
2.6 TERMINATION OR
REDUCTION OF COMMITMENTS
(a) VOLUNTARY TERMINATION OR
REDUCTIONS. At the Borrower's option
and upon at least three Domestic Business
Days' prior irrevocable notice to the
Administrative Agent, the Borrower may (i)
terminate the Commitments, the Swing
Line Commitment and the Letter of Credit
Commitment, at any time, or (ii)
permanently reduce the Aggregate Commitment
Amount, the Swing Line Commitment or
the Letter of Credit Commitment, in part at
any time and from time to time,
PROVIDED that (1) each such partial
reduction shall be in an amount equal to at
least (A) in the case of the Aggregate
Commitment Amount $10,000,000 or an
integral multiple of $1,000,000 in excess
thereof, (B) in the case of the Swing
Line Commitment, $1,000,000, or an integral
multiple of $1,000,000 in excess
thereof, and (C) in the case of the Letter
of Credit Commitment, $1,000,000, or
an integral multiple of $1,000,000 in
excess thereof, and (2) immediately after
giving effect to each such reduction, (A)
the Aggregate Commitment Amount shall
equal or exceed the Aggregate Credit
Exposure, (B) the Swing Line Commitment
shall equal or exceed the aggregate
outstanding principal balance of all Swing
Line Loans and (C) the Letter of Credit
Commitment shall equal or exceed the
Letter of Credit Exposure of all Lenders,
and PROVIDED FURTHER that a notice of
termination of the Commitments, the Swing
Line Commitment and the Letter of
Credit Commitment delivered by the Borrower
may state that such notice is
conditioned upon the effectiveness of other
credit facilities (such notice to
specify the proposed effective date), in
which case such notice may be revoked
by the Borrower (by notice to the
Administrative Agent on or prior to such
specified effective date) if such condition
is not satisfied and the Borrower
shall indemnify the Lenders in accordance
with Section 3.5.
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(b) IN GENERAL. Each
reduction of the Aggregate Commitment Amount
shall be made by reducing each Lender's
Commitment Amount by a sum equal to such
Lender's Commitment Percentage of the
amount of such reduction.
2.7 PREPAYMENTS OF
LOANS
(a) VOLUNTARY
PREPAYMENTS. The Borrower may prepay Revolving Credit
Loans, Competitive Bid Loans and Swing Line
Loans, in whole or in part, without
premium or penalty, but subject to Section
3.5 at any time and from time to
time, by notifying the Administrative
Agent, which notification shall be
irrevocable, at least two Eurodollar
Business Days, in the case of a prepayment
of Eurodollar Advances, two Domestic
Business Days, in the case of Competitive
Bid Loans, or one Domestic Business Day, in
the case of a prepayment of Swing
Line Loans and ABR Advances, prior to the
proposed prepayment date specifying
(i) the Loans to be prepaid, (ii) the
amount to be prepaid, and (iii) the date
of prepayment. Upon receipt of each such
notice, the Administrative Agent shall
promptly notify each Lender thereof. Each
such notice given by the Borrower
pursuant to this Section shall be
irrevocable, PROVIDED that, if a notice of
prepayment is given in connection with a
conditional notice of termination of
the Commitments, the Swing Line Commitment
and the Letter of Credit Commitment
as contemplated by Section 2.6, then such
notice of prepayment may be revoked if
such notice of termination is revoked in
accordance with Section 2.6, and the
Borrower shall indemnify the Lenders in
accordance with Section 3.5. Each
partial prepayment under this Section shall
be in a minimum amount of $1,000,000
($500,000 in the case of ABR Advances and
Swing Line Loans) or an integral
multiple of $1,000,000 ($100,000 in the
case of ABR Advances and Swing Line
Loans) in excess thereof.
(b) IN GENERAL.
Simultaneously with each prepayment hereunder, the
Borrower shall prepay all accrued interest
on the amount prepaid through the
date of prepayment and indemnify the
Lenders in accordance with Section 3.5.
2.8 LETTER OF CREDIT
SUB-FACILITY
(a) Subject to the
terms and conditions hereof and the payment by
the Borrower to the Issuer of such fees as
the Borrower and the Issuer shall
have agreed in writing, the Issuer agrees,
in reliance on the agreement of the
other Lenders set forth in Section 2.9, to
issue standby letters of credit (each
a "LETTER OF CREDIT" and, collectively, the
"LETTERS OF CREDIT") during the
Commitment Period for the account of the
Borrower, PROVIDED that immediately
after the issuance of each Letter of Credit
(i) the Letter of Credit Exposure of
all Lenders shall not exceed the Letter of
Credit Commitment, and (ii) the
Aggregate Credit Exposure shall not exceed
the Aggregate Commitment Amount. Each
Letter of Credit shall have an expiration
date which shall be not later than the
earlier to occur of one year from the date
of issuance thereof or 5 days prior
to the Commitment Termination Date. No
Letter of Credit shall be issued if the
Administrative Agent, or any Lender by
notice to the Administrative Agent and
the Issuer no later than 3:00 P.M. one
Domestic Business Day prior to the
requested date of issuance of such Letter
of Credit, shall have determined that
the conditions set forth in Sections 5
and/or 6, as applicable have not been
satisfied.
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(b) Each Letter of
Credit shall be issued for the account of the
Borrower in support of an obligation of the
Borrower in favor of a beneficiary
who has requested the Issuance of such
Letter of Credit as a condition to a
transaction entered into in connection with
the Borrower's ordinary course of
business. The Borrower shall give the
Administrative Agent a Letter of Credit
Request for the issuance of each Letter of
Credit by 12:00 Noon at least two
Domestic Business Days prior to the
requested date of issuance. Such Letter of
Credit Request shall be accompanied by the
Issuer's standard Application and
Agreement for Standby Letter of Credit
(each a "REIMBURSEMENT AGREEMENT")
executed by the Borrower, and shall specify
(i) the beneficiary of such Letter
of Credit and the obligations of the
Borrower in respect of which such Letter of
Credit is to be issued, (ii) the Borrower's
proposal as to the conditions under
which a drawing may be made under such
Letter of Credit and the documentation to
be required in respect thereof, (iii) the
maximum amount to be available under
such Letter of Credit, and (iv) the
requested date of issuance. Upon receipt of
such Letter of Credit Request from the
Borrower, the Administrative Agent shall
promptly notify the Issuer and each other
Lender thereof. The Issuer shall, on
the proposed date of issuance and subject
to the other terms and conditions of
this Agreement, issue the requested Letter
of Credit. Each Letter of Credit
shall be in form and substance reasonably
satisfactory to the Issuer, with such
provisions with respect to the conditions
under which a drawing may be made
thereunder and the documentation required
in respect of such drawing as the
Issuer shall reasonably require. Each
Letter of Credit shall be used solely for
the purposes described therein.
(c) Each payment by
the Issuer of a draft drawn under a Letter of
Credit shall give rise to the obligation of
the Borrower to immediately
reimburse the Issuer for the amount
thereof. The Issuer shall promptly notify
the Borrower of such payment by the Issuer
of a draft drawn under a Letter of
Credit, but any failure to so notify shall
not in any manner affect the
obligation of the Borrower to make
reimbursement when due. In lieu of such
notice, if the Borrower has not made
reimbursement prior to the end of the
Domestic Business Day when due, the
Borrower hereby authorizes the Issuer to
deduct the amount of any such reimbursement
from such account(s) as the Borrower
may from time to time designate in writing
to the Issuer, upon which the Issuer
shall apply the amount of such deduction to
such reimbursement. If all or any
portion of any reimbursement obligation in
respect of a Letter of Credit shall
not be paid when due (whether at the stated
maturity thereof, by acceleration or
otherwise), such overdue amount shall bear
interest, payable upon demand, at a
rate per annum equal to the Alternate Base
Rate PLUS the Applicable Margin
applicable to ABR Advances PLUS 2%, from
the date of such nonpayment until paid
in full (whether before or after the entry
of a judgment thereon).
2.9 LETTER OF CREDIT
PARTICIPATION
(a) Each Lender hereby
unconditionally and irrevocably, severally
(and not jointly) takes an undivided
participating interest in the obligations
of the Issuer under and in connection with
each Letter of Credit in an amount
equal to such Lender's Commitment
Percentage of the amount of such Letter of
Credit. Each Lender shall be liable to the
Issuer for its Commitment Percentage
of the unreimbursed amount of any draft
drawn and honored under each Letter of
Credit. Each Lender shall also be liable
for an amount equal to the product of
its Commitment Percentage and any amounts
paid by the Borrower pursuant to
Sections 2.8 and 2.10 that are subsequently
rescinded or avoided, or must
otherwise be restored or returned. Such
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liabilities shall be unconditional and
without regard to the occurrence of any
Default or Event of Default or the
compliance by the Borrower with any of its
obligations under the Loan Documents.
(b) The Issuer shall
promptly notify the Administrative Agent, and
the Administrative Agent shall promptly
notify each Lender (which notice shall
be promptly confirmed in writing), of the
date and the amount of each draft paid
under each Letter of Credit with respect to
which full reimbursement payment
shall not have been made by the Borrower as
provided in Section 2.8(c), and
forthwith upon receipt of such notice, such
Lender shall promptly make available
to the Administrative Agent for the account
of the Issuer its Commitment
Percentage of the amount of such
unreimbursed draft at the office of the
Administrative Agent specified in Section
11.2 in lawful money of the United
States and in immediately available funds.
The Administrative Agent shall
distribute the payments made by each Lender
pursuant to the immediately
preceding sentence to the Issuer promptly
upon receipt thereof in like funds as
received. Each Lender shall indemnify and
hold harmless the Administrative Agent
and the Issuer from and against any and all
losses, liabilities (including
liabilities for penalties), actions, suits,
judgments, demands, costs and
expenses (including, without limitation,
reasonable attorneys' fees and
expenses) resulting from any failure on the
part of such Lender to provide, or
from any delay in providing, the
Administrative Agent with such Lender's
Commitment Percentage of the amount of any
payment made by the Issuer under a
Letter of Credit in accordance with this
clause (b) above (except in respect of
losses, liabilities or other obligations
suffered by the Administrative Agent or
the Issuer, as the case may be, resulting
from the gross negligence or willful
misconduct of the Administrative Agent or
the Issuer, as the case may be). If a
Lender does not make available to the
Administrative Agent when due such
Lender's Commitment Percentage of any
unreimbursed payment made by the Issuer
under a Letter of Credit, such Lender shall
be required to pay interest to the
Administrative Agent for the account of the
Issuer on such Lender's Commitment
Percentage of such payment at a rate of
interest per annum equal to (i) from the
date such Lender should have made such
amount available until the third day
therefrom, the Federal Funds Effective
Rate, and (ii) thereafter, the Federal
Funds Effective Rate PLUS 2%, in each case
payable upon demand by the Issuer.
The Administrative Agent shall distribute
such interest payments to the Issuer
upon receipt thereof in like funds as
received.
(c) Whenever the
Administrative Agent is reimbursed by the
Borrower, for the account of the Issuer,
for any payment under a Letter of
Credit and such payment relates to an
amount previously paid by a Lender in
respect of its Commitment Percentage of the
amount of such payment under such
Letter of Credit, the Administrative Agent
(or the Issuer, if such payment by a
Lender was paid by the Administrative Agent
to the Issuer) will promptly pay
over such payment to such Lender.
2.10
ABSOLUTE
OBLIGATION WITH RESPECT TO LETTER OF CREDIT PAYMENTS
The Borrower's obligation to reimburse the Administrative Agent
for
the account of the Issuer for each payment
under or in respect of each Letter of
Credit shall be absolute and unconditional
under any and all circumstances and
irrespective of any set-off, counterclaim
or defense to payment which the
Borrower may have or have had against the
beneficiary of such Letter
26
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of Credit, the Administrative Agent, the
Issuer, the Swing Line Lender, any
Lender or any other Person, including,
without limitation, any defense based on
the failure of any drawing to conform to
the terms of such Letter of Credit, any
drawing document proving to be forged,
fraudulent or invalid, or the legality,
validity, regularity or enforceability of
such Letter of Credit, PROVIDED that,
with respect to any Letter of Credit, the
foregoing shall not relieve the Issuer
of any liability it may have to the
Borrower for any actual damages sustained by
the Borrower arising from a wrongful
payment (or failure to pay) under such
Letter of Credit made as a result of the
Issuer's gross negligence or willful
misconduct.
2.11
NOTES
Any Lender may request that the Loans made by it be evidenced by
a
Note. In such event, the Borrower shall
prepare, execute and deliver to such
Lender a Note payable to the order of such
Person or, if requested by such
Person, such Person and its registered
assigns. Thereafter, all Loans evidenced
by such Note and interest thereon shall at
all times (including after assignment
pursuant to Section 11.7) be represented by
a Note in like form payable to the
order of the payee named therein and its
registered assigns.
3. PROCEEDS, PAYMENTS,
CONVERSIONS, INTEREST, YIELD PROTECTION AND FEES
3.1 DISBURSEMENT OF THE
PROCEEDS OF THE LOANS
The Administrative Agent shall disburse the proceeds of the
Loans
(other than the Swing Line Loans) at its
office specified in Section 11.2 by
crediting to the Borrower's general deposit
account with the Administrative
Agent the funds received from each Lender.
Unless the Administrative Agent shall
have received prior notice from a Lender
(by telephone or otherwise, such notice
to be confirmed by fax or other writing)
that such Lender will not make
available to the Administrative Agent such
Lender's Commitment Percentage of the
Revolving Credit Loans, or the amount of
any Competitive Bid Loan, to be made by
it on a Borrowing Date, the Administrative
Agent may assume that such Lender has
made such amount available to the
Administrative Agent on such Borrowing Date in
accordance with this Section, PROVIDED
that, in the case of a Revolving Credit
Loan, such Lender received notice thereof
from the Administrative Agent in
accordance with the terms hereof, and the
Administrative Agent may, in reliance
upon such assumption, make available to the
Borrower on such Borrowing Date a
corresponding amount. If and to the extent
such Lender shall not have so made
such amount available to the Administrative
Agent, such Lender and the Borrower
severally agree to pay to the
Administrative Agent, forthwith on demand, such
corresponding amount (to the extent not
previously paid by the other), together
with interest thereon for each day from the
date such amount is made available
to the Borrower until the date such amount
is paid to the Administrative Agent,
at a rate per annum equal to, in the case
of the Borrower, the applicable
interest rate set forth in Section 3.4(a)
and, in the case of such Lender, the
Federal Funds Effective Rate from the date
such payment is due until the third
day after such date and, thereafter, at the
Federal Funds Effective Rate PLUS
2%. Any such payment by the Borrower shall
be without prejudice to its rights
against such Lender. If such Lender shall
pay to the Administrative Agent such
corresponding amount, such amount so paid
shall constitute such
27
<Page>
Lender's Loan as part of such Loans for
purposes of this Agreement, which Loan
shall be deemed to have been made by such
Lender on the Borrowing Date
applicable to such Loans.
3.2 PAYMENTS
(a) Each payment,
including each prepayment, of principal and
interest on the Loans and of the Facility
Fee, the Utilization Fee and the
Letter of Credit Participation Fee
(collectively, together with all of the other
fees to be paid to the Administrative
Agent, the Lenders, the Issuer and the
Swing Line Lender in connection with the
Loan Documents, the "FEES"), and of all
of the other amounts to be paid to the
Administrative Agent and the Lenders in
connection with the Loan Documents shall be
made by the Borrower to the
Administrative Agent at its office
specified in Section 11.2 without setoff,
deduction or counterclaim in funds
immediately available in New York by 3:00
P.M. on the due date for such payment. The
failure of the Borrower to make any
such payment by such time shall not
constitute a default hereunder, PROVIDED
that such payment is made on such due date,
but any such payment made after 3:00
P.M. on such due date shall be deemed to
have been made on the next Domestic
Business Day or Eurodollar Business Day, as
the case may be, for the purpose of
calculating interest on amounts outstanding
on the Loans. If the Borrower has
not made any such payment prior to 3:00
P.M., the Borrower hereby authorizes the
Administrative Agent to deduct the amount
of any such payment from such
account(s) as the Borrower may from time to
time designate in writing to the
Administrative Agent, upon which the
Administrative Agent shall apply the amount
of such deduction to such payment. Promptly
upon receipt thereof by the
Administrative Agent, each payment of
principal and interest on the: (i)
Revolving Credit Loans shall be remitted by
the Administrative Agent in like
funds as received to each Lender (a) first,
pro rata according to the amount of
interest which is then due and payable to
the Lenders, and (b) second, pro rata
according to the amount of principal which
is then due and payable to the
Lenders, (ii) Competitive Bid Loans shall
be remitted by the Administrative
Agent in like funds as received to each
applicable Lender and (iii) Swing Line
Loans shall be remitted by the
Administrative Agent in like funds as received to
the Swing Line Lender. Each payment of the
Fees payable to the Lenders shall be
promptly transmitted by the Administrative
Agent in like funds as received to
each Lender pro rata according to such
Lender's Commitment Amount or, if the
Commitments shall have terminated or been
terminated, according to the
outstanding principal amount of such
Lender's Revolving Credit Loans.
(b) If any payment
hereunder or under the Loans shall be due and
payable on a day which is not a Domestic
Business Day or Eurodollar Business
Day, as the case may be, the due date
thereof (except as otherwise provided in
the definition of Eurodollar Interest
Period or Competitive Interest Period)
shall be extended to the next Domestic
Business Day or Eurodollar Business Day,
as the case may be, and (except with
respect to payments in respect of the
Facility Fee, the Utilization Fee and the
Letter of Credit Participation Fee)
interest shall be payable at the applicable
rate specified herein during such
extension.
3.3 CONVERSIONS; OTHER
MATTERS
(a) The Borrower may
elect at any time and from time to time to
Convert one or more Eurodollar Advances to
an ABR Advance by giving the
Administrative Agent at least
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one Domestic Business Day's prior
irrevocable notice of such election,
specifying the amount to be so Converted.
In addition, the Borrower may elect at
any time and from time to time to Convert
an ABR Advance to any one or more new
Eurodollar Advances or to Convert any one
or more existing Eurodollar Advances
to any one or more new Eurodollar Advances
by giving the Administrative Agent no
later than 10:00 a.m. at least two
Eurodollar Business Days' prior irrevocable
notice, in the case of a Conversion to
Eurodollar Advances, of such election,
specifying the amount to be so Converted
and the initial Interest Period
relating thereto, PROVIDED that any
Conversion of an ABR Advance to Eurodollar
Advances shall only be made on a Eurodollar
Business Day. The Administrative
Agent shall promptly provide the Lenders
with notice of each such election. Each
Conversion of Loans from one Type to
another shall be made pro rata according to
the outstanding principal amount of the
Loans of each Lender. ABR Advances and
Eurodollar Advances may be Converted
pursuant to this Section in whole or in
part, PROVIDED that the amount to be
Converted to each Eurodollar Advance, when
aggregated with any Eurodollar Advance to
be made on such date in accordance
with Section 2.1 and having the same
Interest Period as such first Eurodollar
Advance, shall equal no less than
$10,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(b) Notwithstanding
anything in this Agreement to the contrary,
upon the occurrence and during the
continuance of a Default or an Event of
Default, the Borrower shall have no right
to elect to Convert any existing ABR
Advance to a new Eurodollar Advance or to
Convert any existing Eurodollar
Advance to a new Eurodollar Advance. In
such event, such ABR Advance shall be
automatically continued as an ABR Advance
or such Eurodollar Advance shall be
automatically Converted to an ABR Advance
on the last day of the Interest Period
applicable to such Eurodollar Advance. The
foregoing shall not affect any other
rights or remedies that the Administrative
Agent or any Lender may have under
this Agreement or any other Loan
Document.
(c) Each Conversion
shall be effected by each Lender by applying
the proceeds of each new ABR Advance or
Eurodollar Advance, as the case may be,
to the existing Advance (or portion
thereof) being Converted (it being
understood that such Conversion shall not
constitute a borrowing for purposes of
Sections 4, 5 or 6).
(d) Notwithstanding
any other provision of any Loan Document:
(i) if the
Borrower shall have failed to elect a Eurodollar
Advance under Section 2.3 or this Section
3.3, as the case may be, in connection
with any borrowing of new Revolving Credit
Loans or expiration of an Interest
Period with respect to any existing
Eurodollar Advance, the amount of the
Revolving Credit Loans subject to such
borrowing or such existing Eurodollar
Advance shall thereafter be an ABR Advance
until such time, if any, as the
Borrower shall elect a new Eurodollar
Advance pursuant to this Section 3.3,
(ii) the Borrower
shall not be permitted to select a
Eurodollar Advance the Interest Period in
respect of which ends later than the
Commitment Termination Date or such earlier
date upon which all of the
Commitments shall have been voluntarily
terminated by the Borrower in accordance
with Section 2.6, and
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(iii) the Borrower shall not be permitted to have more than 15
Eurodollar Advances and Competitive Bid
Loans, in the aggregate, outstanding at
any one time, it being understood and
agreed that each borrowing of Eurodollar
Advances or Competitive Bid Loans pursuant
to a single Borrowing Request or
Competitive Bid Request, as the case may
be, shall constitute the making of one
Eurodollar Advance or Competitive Bid Loan
for the purpose of calculating such
limitation.
3.4 INTEREST RATES AND
PAYMENT DATES
(a) PRIOR TO MATURITY.
Except as otherwise provided in Sections
3.4(b) and 3.4(c), the Loans shall bear
interest on the unpaid principal balance
thereof at the applicable interest rate or
rates per annum set forth below:
<Table>
<Caption>
LOANS
RATE
--------------------------------------
-------------------------------------------------------------------
<S>
<C>
Revolving Credit Loans
Alternate Base Rate applicable thereto PLUS the Applicable
Margin.
constituting ABR Advances
Revolving Credit Loans constituting
Eurodollar Rate applicable thereto PLUS the Applicable Margin.
Eurodollar Advances
Competitive Bid Loans
Fixed rate of interest applicable thereto accepted by the
Borrower
pursuant to Section 2.4(d).
Swing Line Loans
Negotiated Rate applicable thereto as provided in Section
2.2(a).
</Table>
(b) AFTER MATURITY,
LATE PAYMENT RATE. After maturity, whether by
acceleration, notice of intention to prepay
or otherwise, the outstanding
principal balance of the Loans shall bear
interest at the Alternate Base Rate
PLUS 2% per annum until paid (whether
before or after the entry of any judgment
thereon). Any payment of principal,
interest or any Fees not paid on the date
when due and payable shall bear interest at
the Alternate Base Rate PLUS 2% per
annum from the due date thereof until the
date such payment is made (whether
before or after the entry of any judgment
thereon).
(c) HIGHEST LAWFUL
RATE. Notwithstanding anything to the contrary
contained in this Agreement, at no time
shall the interest rate payable to any
Lender on any of its Loans, together with
the Fees and all other amounts payable
hereunder to such Lender to
