CONFORMED COPY
|
US$2,250,000,000
364-DAY CREDIT AGREEMENT
dated as of
June 24, 2009
among
AUTOMATIC DATA PROCESSING,
INC.
The Borrowing
Subsidiaries
referred to herein
The LENDERS Party Hereto
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
and
BANK OF AMERICA, N.A.
as Syndication Agent
and
WELLS FARGO BANK, N.A.
as Senior Documentation
Agent
and
BARCLAYS BANK PLC
BNP PARIBAS
CITICORP USA, INC.
DEUTSCHE BANK AG NEW YORK BRANCH,
and
INTESA SANPAOLO S.P.A
as Documentation Agents
_________________________
J.P. MORGAN SECURITIES
INC.,
and
BANC OF AMERICA SECURITIES
LLC,
as Co-Lead Arrangers and Joint
Bookrunners
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TABLE OF CONTENTS
ARTICLE I
Definitions
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SECTION 1.01.
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Defined Terms
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1
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SECTION 1.02.
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Classification of Loans and
Borrowings
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16
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SECTION 1.03.
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Terms Generally
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16
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SECTION 1.04.
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Accounting Terms; GAAP
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16
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ARTICLE II
The Credits
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SECTION 2.01.
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Commitments
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17
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SECTION 2.02.
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Loans and Borrowings
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17
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SECTION 2.03.
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Requests for Revolving Borrowings
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18
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SECTION 2.04.
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[Intentionally Omitted]
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19
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SECTION 2.05.
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Competitive Bid Procedure
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19
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SECTION 2.06.
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[Intentionally Omitted]
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21
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SECTION 2.07.
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Funding of Borrowings
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21
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SECTION 2.08.
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Repayment of Borrowings; Evidence of Debt;
Extension of
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SECTION 2.09.
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Interest Elections
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23
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SECTION 2.10.
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Termination and Reduction of
Commitments
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25
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SECTION 2.11.
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Prepayment of Loans
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25
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SECTION 2.13.
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Interest
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27
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SECTION 2.14.
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Alternate Rate of Interest
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28
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SECTION 2.15.
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Increased Costs
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28
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SECTION 2.16.
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Break Funding Payments
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29
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SECTION 2.18.
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Payments Generally; Pro Rata Treatment; Sharing
of Setoffs
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31
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SECTION 2.19.
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Mitigation Obligations; Replacement of
Lenders
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33
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SECTION 2.20.
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Designation of Borrowing Subsidiaries
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34
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SECTION 2.21.
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Defaulting Lenders
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34
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ARTICLE III
Representations and
Warranties
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SECTION 3.01.
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Organization; Powers
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35
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SECTION 3.02.
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Authorization; Enforceability
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35
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SECTION 3.03.
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Governmental Approvals; No Conflicts
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35
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SECTION 3.04.
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Financial Condition; No Material Adverse
Change
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36
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SECTION 3.05.
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Properties
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36
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SECTION 3.06.
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Litigation and Environmental Matters
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36
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SECTION 3.07.
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Compliance with Laws and Agreements
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36
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SECTION 3.08.
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Federal Reserve Regulations
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37
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SECTION 3.09.
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Investment Company Status
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37
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SECTION 3.12.
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Disclosure
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37
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ARTICLE IV
Conditions
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SECTION 4.01.
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Effective Date
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38
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SECTION 4.02.
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Each Credit Event
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39
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SECTION 4.03.
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Initial Credit Event for each Borrowing
Subsidiary
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39
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ARTICLE V
Affirmative Covenants
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SECTION 5.01.
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Financial Statements and Other
Information
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40
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SECTION 5.02.
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Notices of Material Events
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41
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SECTION 5.03.
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Existence; Conduct of Business
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41
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SECTION 5.04.
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Payment of Taxes
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42
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SECTION 5.05.
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Maintenance of Properties
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42
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SECTION 5.06.
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Books and Records; Inspection Rights
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42
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SECTION 5.07.
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Compliance with Laws
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42
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SECTION 5.08.
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Use of Proceeds
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42
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ARTICLE VI
Negative Covenants
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SECTION 6.02.
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Sale and Leaseback Transactions
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44
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SECTION 6.03.
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Fundamental Changes
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44
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ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Guarantee
ARTICLE X
Miscellaneous
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SECTION 10.01.
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Notices
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51
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SECTION 10.02.
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Waivers; Amendments
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51
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SECTION 10.03.
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Expenses; Indemnity; Damage Waiver
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52
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SECTION 10.04.
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Successors and Assigns
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54
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SECTION 10.05.
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Survival
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56
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SECTION 10.06.
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Counterparts; Integration;
Effectiveness
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56
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SECTION 10.07.
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Severability
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57
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SECTION 10.08.
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Right of Setoff
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57
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SECTION 10.09.
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Governing Law; Jurisdiction; Consent to Service
of Process
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57
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SECTION 10.10.
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WAIVER OF JURY TRIAL
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58
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SECTION 10.11.
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Headings
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58
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SECTION 10.12.
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Confidentiality
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58
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SECTION 10.13.
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Conversion of Currencies
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60
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SECTION 10.14.
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Interest Rate Limitation
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60
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SECTION 10.15.
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USA Patriot Act
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60
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SECTION 10.16.
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No Fiduciary Relationship
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61
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SCHEDULES:
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Schedule 2.01
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Lenders and Commitments
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Schedule 2.18
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Payment Instructions
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EXHIBITS:
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Exhibit A-1
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Form of Borrowing Subsidiary
Agreement
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Exhibit A-2
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Form of Borrowing Subsidiary
Termination
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Exhibit B
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Form of Assignment and Assumption
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Exhibit C
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Form of Opinion of General Counsel of the
Company
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Exhibit D
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Form of Promissory Note
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364-DAY CREDIT AGREEMENT dated as of
June 24, 2009 (this “ Agreement ”), among
AUTOMATIC DATA PROCESSING, INC., a Delaware corporation (the
“ Company ”); the BORROWING SUBSIDIARIES from
time to time party hereto (the Company and the Borrowing
Subsidiaries being collectively called the “ Borrowers
”); the LENDERS from time to time party hereto; and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.
The Company has requested the
Lenders (such term and each other capitalized term used and not
otherwise defined herein having the meaning assigned to it in
Article I) to extend credit in the form of Commitments under which
the Company and the Borrowing Subsidiaries may obtain Loans in US
Dollars in an aggregate principal amount at any time outstanding
that will not result in the Exposures exceeding US$2,250,000,000.
The Company has also requested the Lenders to provide (a) a
procedure pursuant to which the Borrowers may invite the Lenders to
bid on an uncommitted basis on short-term Loans to the Borrowers
and (b) a procedure under which the Borrowers may obtain Loans on
an uncommitted basis from individual Lenders on terms to be
negotiated at the time such Loans are requested. The proceeds of
borrowings hereunder are to be used for general corporate purposes
of the Borrowers and their subsidiaries, including the refinancing
of indebtedness under the Company’s 364-Day Credit Agreement
dated as of June 25, 2008 (the “ Existing Credit
Agreement ”).
The Lenders are willing to establish
the credit facilities referred to in the preceding paragraph upon
the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.
As used in this Agreement, the following terms have the meanings
specified below:
“ ABR ”, when
used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base
Rate.
“ Administrative Agent
” means JPMCB, in its capacity as administrative agent for
the Lenders hereunder or any successor in such capacity.
“ Administrative
Questionnaire ” means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
“ Affiliate ”
means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the
Person specified.
“ Agreement Currency
” has the meaning assigned to such term in
Section 10.13(b).
“ Alternate Base Rate
” means, for any day, a rate per annum equal to the highest
of (a) the Prime Rate in effect on such day, (b) the
Federal Funds Effective Rate in effect on such day plus ½ of
1% per annum and (c) the LIBO Rate for a one month interest period
on such day (or if such day is not a Business Day, the immediately
preceding Business Day) plus 1% per annum, provided
that, for the avoidance of doubt, the LIBO Rate for any day shall
be based on the rate appearing on the Reuters Screen LIBOR01 Page
(or on any successor or substitute page) at approximately 11:00
a.m. London time on such day (without any rounding). Any change in
the Alternate Base Rate due to a change in the Prime Rate, the
Federal Funds Effective Rate or the LIBO Rate shall be effective
from and including the effective date of such change in the Prime
Rate, the Federal Funds Effective Rate or the LIBO Rate,
respectively.
“ Applicable Rate
” means a rate per annum equal to, with respect to (a) any
Eurocurrency Loan, 50% of the Index (but not less than (i) prior to
the Termination Date .35% per annum and (ii) on and after the
Termination Date 0.50% per annum) and (b) any ABR Loan, the
Applicable Rate for Eurocurrency Loans minus 1% per annum
(but in no event shall the Applicable Rate be less than 0.00%). For
purposes of determining any Applicable Rate, the Index shall be
determined as of each Reset Date for the applicable Revolving
Loans. Each change in the Applicable Rate for any Revolving Loans
hereunder shall apply during the period commencing on the Reset
Date on which a change in the Index becomes effective and ending on
the date immediately preceding the Reset Date on which the next
such change becomes effective. If, for any reason, the Index is
unavailable as of any Reset Date, the Borrower and the Lenders
under the Facility agree to negotiate in good faith (for a period
of up to 30 days after the Index becomes unavailable) to agree on
an alternative method for establishing the Applicable Rate. During
such negotiations, the Applicable Rate will be calculated as
provided above and based on the last available quote of the Index.
If no such alternative method is agreed upon during such 30 day
period, then following the end of such period, and until such an
alternative method shall have been agreed upon, the Applicable Rate
will be the higher of (x) the rate determined based on the last
available quote of the Index and (y) .50% per annum.
“ Assignment and
Assumption ” means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 10.04), and accepted by
the Administrative Agent, in the form of Exhibit B or any
other form approved by the Administrative Agent.
“ Attributable Debt
” means, with respect to any Sale and Leaseback Transaction,
the present value (discounted at the rate set forth or implicit in
the terms of the lease included in such Sale and Leaseback
Transaction) of the total obligations of the lessee for rental
payments (other than amounts required to be paid on account of
taxes, maintenance, repairs, insurance, assessments, utilities,
operating and labor costs and other items which do not constitute
payments for property rights) during the remaining term of the
lease included in such Sale and Leaseback Transaction (including
any period for which such lease has been extended). In the case of
any lease which is terminable by the lessee upon payment of a
penalty, the Attributable Debt shall be the lesser of the
Attributable Debt determined assuming termination upon the first
date such lease may be terminated (in which case the Attributable
Debt shall also include the amount of the penalty, but no rent
shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated) or
the Attributable Debt determined assuming no such
termination.
“ Availability Period
” means the period from and including the Effective Date to
but excluding the earlier of the Termination Date and the date of
termination of the Commitments.
“ Board ” means
the Board of Governors of the Federal Reserve System of the
United States of America.
“ Borrower ”
means the Company or any Borrowing Subsidiary.
“ Borrowing ”
means Loans (including Competitive Loans or Contract Loans) of the
same Class and Type, made, converted or continued on the same date
and, in the case of Eurocurrency Loans or Fixed Rate Loans, as to
which a single Interest Period is in effect.
“ Borrowing Minimum
” means US$5,000,000.
“ Borrowing Multiple
” means US$1,000,000.
“ Borrowing Request
” means a request by a Borrower for a Borrowing in accordance
with Section 2.03.
“ Borrowing Subsidiary
” means any Subsidiary that has been designated as such
pursuant to Section 2.20 and that has not ceased to be a Borrowing
Subsidiary as provided in such Section.
“ Borrowing Subsidiary
Agreement ” means a Borrowing Subsidiary Agreement
substantially in the form of Exhibit A-1.
“ Borrowing Subsidiary
Termination ” means a Borrowing Subsidiary Termination
substantially in the form of Exhibit A-2.
“ Business Day ”
means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required
by law to remain closed; provided , that when used in
connection with a Eurocurrency Loan, the term “ Business
Day ” shall also exclude any day on which banks are not
open for dealings in deposits in US Dollars in the London interbank
market.
“ Capital Lease
Obligations ” of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property,
or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet
of such Person under GAAP, and the amount of such obligations shall
be the capitalized amount thereof determined in accordance with
GAAP.
“ Change in Law ”
means (a) the adoption of any law, rule or regulation after the
date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or
(c) compliance by any Lender or by any lending office of such
Lender or by such Lender’s holding company with any request,
guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this
Agreement.
“ Class ”, when
used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Competitive Loans, or Contract Loans.
“ Code ” means
the Internal Revenue Code of 1986, as amended from time to
time.
“ Commitment ”
means, with respect to each Lender, the commitment of such Lender
to make Loans pursuant to Section 2.01, expressed as an amount
representing the maximum aggregate amount of such Lender’s
Revolving Loan Exposure hereunder, as such commitment may be
reduced from time to time pursuant to Section 2.10 or pursuant
to assignments by or to such Lender pursuant to Section 10.04.
The initial amount of each Lender’s Commitment is set forth
on Schedule 2.01, or in the Assignment and Assumption pursuant
to which such Lender shall have assumed its Commitment, as
applicable. The aggregate amount of the Commitments on the date
hereof is US$2,250,000,000.
“ Company ” has
the meaning assigned to such term in the heading of this
Agreement.
“ Competitive Bid
” means an offer by a Lender to make a Competitive Loan in
accordance with Section 2.05.
“ Competitive Bid Rate
” means, with respect to any Competitive Bid, the Margin or
the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
“ Competitive Bid
Request ” means a request for Competitive Bids in
accordance with Section 2.05.
“ Competitive Borrowing
” means a Borrowing comprised of Competitive
Loans.
“ Competitive Loan
” means a Loan made pursuant to Section 2.05. Each
Competitive Loan shall be a Eurocurrency Loan or a Fixed Rate
Loan.
“ Competitive Loan
Exposure ” means, with respect to any Lender at any time,
the aggregate principal amount of the outstanding Competitive Loans
of such Lender.
“ Consolidated Net
Worth ” means the shareholders’ equity of the
Company, determined on a consolidated basis in accordance with
GAAP.
“ Contract Loan ”
has the meaning assigned to such term in
Section 2.02(e).
“ Contract Loan
Exposure ” means, with respect to any Lender at any time,
the aggregate principal amount of the outstanding Contract Loans of
such Lender.
“ Control ” means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract
or otherwise. “ Controlling ” and “
Controlled ” have meanings correlative
thereto.
“ Default ” means
any event or condition which constitutes an Event of Default or
which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
“ Defaulting Lender
” means any Lender, as determined by the Administrative
Agent, that has (a) failed to perform its obligation to fund any
portion of its Loans within three Business Days of the date
required to be funded by it hereunder, unless subject to a good
faith dispute between a Lender and a Borrower concerning
satisfaction by such Borrower of the conditions set forth in
Section 4.02 hereto, (b) notified the Borrower, the Administrative
Agent or any Lender in writing that it does not intend to comply
with any of its funding obligations under this Agreement or has
made a public statement to the effect that it does not intend to
comply with its funding obligations under this Agreement or under
other agreements in which it commits to extend credit, (c) failed,
within three Business Days after request by the Administrative
Agent, to confirm that it will comply with the terms of this
Agreement relating to its
obligations to fund prospective
Loans, (d) otherwise failed to pay over to the Administrative Agent
or any other Lender any other amount required to be paid by it
hereunder within three Business Days of the date when due, unless
the subject of a good faith dispute, or (e)(i) become or is
insolvent or has a parent company that has become or is insolvent
or (ii) become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business
or custodian, appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment or has a parent
company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business
or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment.
“ Effective Date
” means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with
Section 10.02).
“ Environmental Laws
” means 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 ” means any liability, contingent or otherwise
(including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of any of the
Borrowers or any of their Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
“ ERISA ” means
the Employee Retirement Income Security Act of 1974, as amended
from time to time.
“ ERISA Affiliate
” means any trade or business (whether or not incorporated)
that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the
Code.
“ ERISA Event ”
means (a) any “reportable event”, as defined in
Section 4043 of ERISA or the regulations issued thereunder
with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) any failure by any
Plan
to satisfy the minimum funding
standard (within the meaning of Section 412 of the Code or
Section 302 of ERISA) applicable to such Plan, in each case whether
or not waived; (c) the filing pursuant to Section 412(c)
of the Code or Section 302(c) of ERISA of an application for a
waiver of the minimum funding standard with respect to any Plan;
(d) the incurrence by the Company or any ERISA Affiliate of
any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Company or any
ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence
by the Company or any ERISA Affiliate of any liability with respect
to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; (g) the receipt by the Company or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer
Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV
of ERISA, or in endangered or critical status, within the meaning
of Section 305 of ERISA; or (h) a determination that any
Plan is, or is expected to be, in “at-risk” status (as
defined in Section 303(i)(4) of ERISA or
Section 430(i)(4) of the Code).
“ Eurocurrency ”,
when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBO
Rate.
“ Event of Default
” has the meaning assigned to such term in
Article VII.
“ Excluded Taxes
” means, with respect to the Administrative Agent, any Lender
or any other recipient of any payment to be made by or on account
of any Obligation hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of
America (or any political subdivision thereof), or by the
jurisdiction under which such recipient is organized or in which
its principal office or any lending office from which it makes
Loans hereunder is located, (b) any branch profit taxes imposed by
the United States of America or any similar tax imposed by any
other jurisdiction described in clause (a) above, (c) in the
case of a Lender (other than an assignee pursuant to a request by
the Company under Section 2.19(b)), any withholding tax that is
imposed by the United States of America (or any political
subdivision thereof) on payments by a Borrower from an office
within such jurisdiction to the extent such tax is in effect
and would apply as of the date such Lender becomes a party to this
Agreement or relates to payments received by a new lending office
designated by such Lender and is in effect and would apply at the
time such lending office is designated, and (d) any withholding
tax that is attributable to such Lender’s failure to
comply with Section 2.17(e), except, in the case of clause (c)
above, to the extent that (i) such Lender (or its assignor, if any)
was entitled, at the time of designation of a new lending office
(or assignment), to receive additional amounts with respect to such
withholding tax pursuant to Section 2.17 or (ii) such
withholding tax shall have resulted from the making of
any
payment to a location other than the
office designated by the Administrative Agent or such Lender for
the receipt of payments of the applicable type.
“ Existing Credit
Agreement ” has the meaning set forth in the introductory
statement.
“ Exposure ”
means, with respect to any Lender, such Lender’s Revolving
Loan Exposure, Competitive Loan Exposure and Contract Loan
Exposure.
“ Federal Funds Effective
Rate ” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day
that is a Business Day, the average (rounded upwards, if necessary,
to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by
it.
“ Financial Officer
” means the chief financial officer, principal accounting
officer, treasurer or controller of the Company.
“ Fixed Rate ”
means, with respect to any Competitive Loan (other than a
Eurocurrency Competitive Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its
related Competitive Bid.
“ Fixed Rate Loan
” means a Competitive Loan bearing interest at a Fixed
Rate.
“ GAAP ” means
generally accepted accounting principles in the United States
of America.
“ Governmental
Authority ” means any nation or government, any federal,
state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government.
“ Guarantee ” of
or by any Person (the “ guarantor ”) means any
obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or
other obligation of any other Person (the “ primary
obligor ”) in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct
or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose
of assuring the owner of such Indebtedness or other obligation of
the payment thereof, (c) to maintain working
capital, equity capital or any other
financial statement condition or liquidity of the primary obligor
so as to enable the primary obligor to pay such Indebtedness or
other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided that the term Guarantee
shall not include endorsements for collection or deposit in the
ordinary course of business.
“ Hazardous Materials
” means 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.
“ Hedging Agreement
” means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement
or other interest or currency exchange rate or commodity price
hedging arrangement.
“ Indebtedness ”
of any Person means, without duplication, (a) all obligations
of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments,
(c) all obligations of such Person upon which interest charges
are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such
Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien
on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all
obligations, contingent or otherwise, of such Person in respect of
bankers’ acceptances. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness
provide that such Person is not liable therefor.
“ Indemnified Taxes
” means Taxes other than Excluded Taxes.
“ Index ” means,
with respect to any Revolving Loan for any period, the average of
the Markit CDX.NA.IG Series 12 or any successor series (5 Year
Period) for the 30 business days (or for the number of business
days for which the then current Markit CDX.NA.IG is in effect, if
such number of business days is fewer than 30 business days)
preceding the Reset Date applicable to such Loan for such period,
as available to the applicable office of the Administrative Agent.
For purposes of this
definition, “business
days” means days in respect of which the Securities Industry
and Financial Markets Association declares the US fixed income
market to be open.
“ Interest Election
Request ” means a request by the relevant Borrower to
convert or continue a Borrowing in accordance with
Section 2.09.
“ Interest Payment Date
” means (a) with respect to any ABR Loan, the last day
of each March, June, September and December, (b) with respect to
any Eurocurrency Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of
more than three months’ duration, each day prior to the last
day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period,
(c) with respect to any Fixed Rate Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Fixed Rate Loan with an Interest Period
of more than 90 days’ duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last
day of such Interest Period that occurs at intervals of 90
days’ duration after the first day of such Interest Period,
and any other dates specified in the applicable Competitive Bid
Request as Interest Payment Dates with respect to such Borrowing,
and (d) with respect to any Contract Loan, the date or dates agreed
upon by the relevant Borrower and the applicable Lender or, if no
such dates shall have been agreed upon, the last day of each March,
June, September and December.
“ Interest Period
” means, (i) with respect to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one,
two, three or six months thereafter, as the relevant Borrower
may elect, (ii) with respect to any Fixed Rate Borrowing, the
period (which shall not be less than 7 days or more than 360 days)
commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request and (iii) with
respect to any Contract Loan, the period commencing on the date of
such Borrowing and ending on the date agreed upon by the relevant
Borrower and the applicable Lender; provided that (i) if any
Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless, in the case of a Eurocurrency Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding
Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is
made, and thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
“ JPMCB ” means
JPMorgan Chase Bank, N.A. and its successors.
“ Judgment Currency
” has the meaning assigned to such term in
Section 10.13(b).
“ Lenders ” means
the Persons listed on Schedule 2.01 and any other Person that
shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that shall have ceased to be
a party hereto pursuant to an Assignment and Assumption.
“ LIBO Rate ”
means, with respect to any Eurocurrency Borrowing for any Interest
Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m., London time, on the Quotation Day
for such Interest Period by reference to the British Bankers’
Association Interest Settlement Rates for deposits in US Dollars
(as reflected on the Reuters Screen LIBOR01 Page (or on any
successor or substitute page)), for a period equal to such Interest
Period; provided that, to the extent that an interest rate
is not ascertainable pursuant to the foregoing provisions of this
definition, “LIBO Rate” shall mean the interest rate
per annum determined by the Administrative Agent to be the average
of the rates per annum at which deposits in US Dollars are offered
for such Interest Period to major banks in the London interbank
market by JPMCB at approximately 11:00 a.m., London time, on
the Quotation Day for such Interest Period.
“ Lien ” means,
with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor
or a lessor under any conditional sale agreement, capital lease or
title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with
respect to such securities.
“ Loan Documents
” means this Agreement, each Borrowing Subsidiary Agreement,
each Borrowing Subsidiary Termination and each promissory note
delivered pursuant to this Agreement.
“ Loans ” means
the loans made by the Lenders to the Borrowers pursuant to this
Agreement.
“ Margin ” means,
with respect to any Competitive Loan bearing interest at a rate
based on the LIBO Rate, the marginal rate of interest, if any, to
be added to or subtracted from the LIBO Rate to determine the rate
of interest applicable to such Loan, as specified by the Lender
making such Loan in its related Competitive Bid.
“ Material Adverse
Effect ” means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or
otherwise, of the Company and its Subsidiaries taken as a whole,
(b) the ability of the Company to perform
any of its obligations under this
Agreement or (c) the rights of or benefits available to the
Lenders under this Agreement.
“ Material Indebtedness
” means Indebtedness (other than the Loans), or obligations
in respect of one or more Hedging Agreements, of the Company and
its Subsidiaries in an aggregate principal amount exceeding
US$250,000,000. For purposes of determining Material Indebtedness,
the “principal amount” of the obligations of any
Borrower or any Subsidiary in respect of any Hedging Agreement at
any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that such Borrower or Subsidiary would be
required to pay if such Hedging Agreement were terminated at such
time.
“ Material Subsidiary
” means (a) any Subsidiary that is a Borrower, (b) any
Subsidiary that directly or indirectly owns or Controls any
Material Subsidiary and (c) any other Subsidiary (i) the
revenues of which for the most recent period of four fiscal
quarters of the Company for which audited financial statements have
been delivered pursuant to Section 5.01 were greater than 10% of
the Company’s consolidated revenues for such period or
(ii) the assets of which as of the end of such period were
greater than 10% of the Company’s consolidated assets as of
such date; provided that if at any time the aggregate amount
of the revenues or assets of all Subsidiaries that are not Material
Subsidiaries for or at the end of any period of four fiscal
quarters exceeds 10% of the Company’s consolidated revenues
for such period or 10% of the Company’s consolidated assets
as of the end of such period, the Company shall (or, in the event
the Company has failed to do so within 10 days, the
Administrative Agent may) designate sufficient Subsidiaries as
“Material Subsidiaries” to eliminate such excess, and
such designated Subsidiaries shall for all purposes of this
Agreement constitute Material Subsidiaries. For purposes of making
the determinations required by this definition, revenues and assets
of foreign Subsidiaries shall be converted into US Dollars at the
rates used in preparing the consolidated balance sheet of the
Company included in the applicable financial statements.
“ Maturity Date ”
means the Termination Date or any later date to which the Maturity
Date shall have been extended pursuant to Section
2.08(f).
“ Multiemployer Plan
” means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
“ Obligations ”
means the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during
the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans made to any Borrower, when and as
due, whether at maturity, by acceleration, upon one or more dates
set for prepayment or otherwise and (ii) all other monetary
obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any
bankruptcy, insolvency,
receivership or other similar
proceeding, regardless of whether allowed or allowable in such
proceeding), of the Borrowers under this Agreement and the other
Loan Documents.
“ Other Taxes ”
means any and all present or future recording, stamp, documentary,
excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made hereunder or under any other
Loan Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan
Document.
“ Patriot Act ”
has the meaning assigned to such term in
Section 10.15.
“ PBGC ” means
the Pension Benefit Guaranty Corporation referred to and defined in
ERISA and any successor entity performing similar
functions.
“ Percentage ”
means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the
Commitments have terminated or expired, the Percentages shall be
determined based upon the Commitments most recently in effect,
giving effect to any assignments.
“ Permitted
Encumbrances ” means:
(a) Liens imposed by law for taxes
that are not yet due or are being contested in compliance with
Section 5.04;
(b) carriers’,
warehousemen’s, mechanics’, materialmen’s,
repairmen’s and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are
not overdue by more than 30 days or are being contested in good
faith;
(c) pledges and deposits made in the
ordinary course of business in compliance with workers’
compensation, unemployment insurance and other social security laws
or regulations;
(d) deposits to secure the
performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens; and
(f) easements, zoning restrictions,
rights-of-way and similar encumbrances on real property imposed by
law or arising in the ordinary course of business that do not
secure any monetary obligations and do not materially detract from
the value of the affected property or interfere with the ordinary
conduct of business of any of the Borrowers or any of their
Subsidiaries;
provided that the term “Permitted
Encumbrances” shall not include any Lien securing
Indebtedness or any Lien in favor of the PBGC.
“ Person ” means
any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental
Authority or other entity.
“ Plan ” means
any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in
respect of which any of the Borrowers or any ERISA Affiliate is
(or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an “employer” as defined in
Section 3(5) of ERISA.
“ Prime Rate ”
means the rate of interest per annum publicly announced from time
to time by JPMCB as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall
be effective from and including the date such change is publicly
announced as being effective.
“ Quotation Day ”
means, with respect to any Eurocurrency Borrowing and any Interest
Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in
US Dollars for delivery on the first day of such Interest Period.
If such quotations would normally be given by prime banks on more
than one day, the Quotation Day will be the last of such
days.
“ Register ” has
the meaning set forth in Section 10.04.
“ Related Fund ”
means, with respect to any Lender that is a fund that invests in
bank loans, any other fund that invests in bank loans and is
managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
“ Related Parties
” means, with respect to any specified Person, such
Person’s Affiliates and the respective directors, officers,
employees, trustees, agents and advisors of such Person and such
Person’s Affiliates.
“ Reset Date ”
means each date on which the Index will be determined. The Reset
Dates for any Eurocurrency Loans for each Interest Period
applicable thereto will be the date that LIBO Rates are set for
such Loans for such Interest Period; provided that for any
Eurocurrency Loan with an Interest Period longer than three months,
the Reset Dates will also occur at the end of each successive
three-month period during such Interest Period. The Reset Dates for
any ABR Loans will be the Closing Date and the first day of each
calendar quarter thereafter.
“ Required Lenders
” means, at any time, Lenders having unused Commitments and
Revolving Loan Exposures representing more than 50% of the
aggregate total unused Commitments and Revolving Loan Exposures;
provided that, for
purposes of declaring the Loans to
be due and payable pursuant to Article VII, and for all purposes
after the Loans become due and payable pursuant to Article VII
or the Commitments expire or terminate, the outstanding Competitive
Loans and Contract Loans of the Lenders shall be included in their
respective Revolving Loan Exposures in determining the Required
Lenders.
“ Revolving Borrowing
” means a Borrowing comprised of Revolving Loans.
“ Revolving Loan
” means a Loan made by a Lender pursuant to Section 2.01.
Each Revolving Loan shall be a Eurocurrency Loan or an ABR
Loan.
“ Revolving Loan
Exposure ” means, at any time, the aggregate principal
amount of the Revolving Loans outstanding at such time. The
Revolving Loan Exposure of any Lender at any time shall be such
Lender’s Percentage of the total Revolving Loan Exposure at
such time.
“ Sale and Leaseback
Transaction ” means any arrangement whereby the Company
or a Subsidiary, directly or indirectly, shall sell or transfer any
property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such
property or other property which it intends to use for
substantially the same purpose or purposes as the property being
sold or transferred.
“ Statutory Reserves
” means any reserve, liquid asset or similar requirements
established by any Governmental Authority of the United States to
which banks in such jurisdiction are subject for any category of
deposits or liabilities customarily used to fund loans in US
Dollars or by reference to which interest rates applicable to Loans
are determined.
“ subsidiary ”
means, with respect to any Person, any entity with respect to which
such Person alone owns, such Person or one or more of its
subsidiaries together own, or such Person and any Person
Controlling such Person together own, in each case directly or
indirectly, capital stock or other equity interests having ordinary
voting power to elect a majority of the members of the Board of
Directors of such corporation or other entity or having a majority
interest in the capital or profits of such corporation or other
entity.
“ Subsidiary ”
means any subsidiary of the Company.
“ Taxes ” means
any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental
Authority.
“ Termination Date
” means June 23, 2010.
“ Transactions ”
means the execution, delivery and performance by the Company and
the other Borrowers of the Loan Documents and the borrowing of
Loans hereunder and the use of the proceeds thereof.
“ Type ”, when
used in reference to any Loan or Borrowing, refers to whether the
rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate, the
Alternate Base Rate, or a Fixed Rate.
“ US Dollars ” or
“ US $ ” means the lawful money of the
United States of America.
“ Withdrawal Liability
” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of
Title IV of ERISA.
SECTION 1.02. Classification of
Loans and Borrowings. For purposes of this Agreement, Loans may
be classified and referred to by Class ( e.g. , a
“Revolving Loan”) or by Type ( e.g. , a
“Eurocurrency Loan”) or by Class and Type ( e.g.
, a “Eurocurrency Revolving Loan”). Borrowings also may
be classified and referred to by Class ( e.g. , a
“Revolving Borrowing”) or by Type ( e.g. , a
“ Eurocurrency Borrowing”) or by Class and Type (
e.g. , a “Eurocurrency Revolving
Borrowing”).
SECTION 1.03. Terms
Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words
“include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”. The word
“will” shall be construed to have the same meaning and
effect as the word “shall”. Unless the context requires
otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set
forth herein), (b) any reference herein to any Person shall be
construed to include such Person’s successors and assigns,
(c) the words “herein”, “hereof” and
“hereunder” and words of similar import shall be
construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this
Agreement and (e) the words “asset” and
“property” shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms;
GAAP. Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in
accordance with GAAP as in effect from time to time;
provided that if the Company notifies the Administrative
Agent that the Company requests an amendment to
any provision hereof to eliminate
the effect of any change occurring after the date hereof in GAAP or
in the application thereof on the operation of such provision (or
if the Administrative Agent notifies the Company that the Required
Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect
and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments.
Subject to the terms and conditions set forth herein, each Lender
agrees to make Revolving Loans to the Company and the Borrowing
Subsidiaries from time to time during the Availability Period in US
Dollars in an aggregate principal amount at any time outstanding
that will not result in (i) such Lender’s Revolving Loan
Exposure exceeding its Commitment or (ii) the aggregate Exposures
exceeding the aggregate Commitments.
SECTION 2.02. Loans and
Borrowings. (a) Each Revolving Loan shall be made as part of a
Borrowing consisting of Revolving Loans made by the Lenders (or
their Affiliates as provided in paragraph (b) below) ratably in
accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in
Section 2.05. Each Contract Loan shall be made in accordance
with the procedures set forth in paragraph (e) below. The failure
of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender’s failure
to make Loans as required hereunder.
(b) Subject to Section 2.14,
(i) each Revolving Borrowing shall be comprised entirely of
Eurocurrency Loans or ABR Loans as the applicable Borrower may
request in accordance herewith and (ii) each Competitive Borrowing
shall be comprised entirely of Eurocurrency Loans or Fixed Rate
Loans, as the applicable Borrower may request in accordance
herewith. Each Lender at its option may make any Loan by causing
any domestic branch or Affiliate of such Lender to make such Loan
(and in the case of an Affiliate, the provisions of Sections 2.14,
2.15, 2.16 and 2.17 shall apply to such Affiliate to the same
extent as to such Lender); provided that any exercise
of such option shall not affect the obligation of the applicable
Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each
Interest Period for any Borrowing (other than a Borrowing comprised
of Competitive Loans or Contract Loans), such Borrowing shall be in
an aggregate amount that is at least equal to the Borrowing Minimum
and an integral multiple of the Borrowing Multiple; provided
that an ABR
Borrowing may be made in an
aggregate amount that is equal to the aggregate available
Commitments. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not
at any time be more than a total of five Eurocurrency Revolving
Borrowings outstanding.
(d) Notwithstanding any other
provision of this Agreement, no Borrower shall be entitled to
request, or to elect to convert or continue, any Borrowing if the
Interest Period requested with respect thereto would end after the
Maturity Date.
(e) At any time, any Borrower and
any Lender may agree that such Lender will make a Loan (a “
Contract Loan ”) to the Borrower denominated in US
Dollars, and bearing interest at an agreed upon rate, for an
interest period to be agreed upon and upon such other terms as the
applicable Borrower and Lender may agree (it being understood that
a Contract Loan shall not be required to be in any particular
minimum amount); provided that, (i) after giving effect to
the making of any such Contract Loan, the aggregate Exposures shall
not exceed the aggregate Commitments and (ii) no such Loan shall be
a Contract Loan unless the relevant Borrower and the applicable
Lender expressly agree at the time such Loan is made, and notify
the Administrative Agent, that such Loan shall be a Contract Loan
for purposes of this Agreement. If the applicable Borrower and
Lender shall, after any Contract Loan is made, agree that such
Contract Loan shall no longer be a Contract Loan hereunder and
shall notify the Administrative Agent of such agreement, such Loan
shall, as of the date of such agreement, cease to be a Contract
Loan or to be entitled to any further benefits under this
Agreement. Contract Loans shall be deemed Loans for all purposes
under this Agreement. Each Borrower and Lender shall promptly
notify the Administrative Agent of (i) the date, principal amount,
maturity, interest rate, Interest Period and Interest Payment Dates
of each Contract Loan made by or to such Lender to such Borrower
and (ii) the date and amount of any repayment or prepayment of any
such Contract Loan.
SECTION 2.03. Requests for
Revolving Borrowings. To request a Revolving Borrowing, the
applicable Borrower, or the Company on behalf of the applicable
Borrower, shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurocurrency Borrowing, not
later than 2:00 p.m., New York City time, three Business
Days before the date of the proposed Borrowing and (b) in the case
of an ABR Borrowing, not later than 12:00 noon, New York City time,
on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the applicable Borrower, or by
the Company on behalf of the applicable Borrower. Each such
telephonic and written Borrowing Request shall specify the
following information in compliance with
Section 2.02:
(i) the Borrower requesting such
Borrowing (or on whose behalf the Company is requesting such
Borrowing);
(ii) the aggregate principal amount
of the requested Borrowing;
(iii) the date of the requested
Borrowing, which shall be a Business Day;
(iv) the Type of the requested
Borrowing;
(v) in the case of a Eurocurrency
Borrowing, the initial Interest Period to be applicable thereto,
which shall be a period contemplated by the definition of the term
“Interest Period”; and
(vi) the location and number of the
relevant Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of
Section 2.07.
If no election as to the Type of
Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to
any requested Eurocurrency Borrowing, then the relevant Borrower
shall be deemed to have selected an Interest Period of one
month’s duration. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount
of the Loan to be made by such Lender as part of the requested
Borrowing.
SECTION 2.04. [Intentionally
Omitted]
SECTION 2.05. Competitive Bid
Procedure. (a) Subject to the terms and conditions set forth
herein, from time to time during the Availability Period any
Borrower may request Competitive Bids for Competitive Loans in US
Dollars and may (but shall not have any obligation to) accept
Competitive Bids and borrow Competitive Loans; provided that
the aggregate Exposures at any time shall not exceed the aggregate
Commitments. To request Competitive Bids, the Company or the
applicable Borrower shall notify the Administrative Agent of such
request by telephone (i) in the case of a Eurocurrency
Competitive Borrowing, not later than 10:00 a.m., New York City
time, four Business Days before the date of the proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing not later than 12:00 noon, New York City time, one
Business Day before the date of the proposed Competitive Borrowing.
Not more than three Competitive Bid Requests may be submitted on
the same day. Each telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the Company.
Each such telephonic and written Competitive Bid Request shall
specify the following information in compliance with
Section 2.02:
(i) the Borrower requesting the
Competitive Bid and the aggregate amount of the requested
Borrowing;
(ii) the date of such Borrowing,
which shall be a Business Day;
(iii) whether such Borrowing is to
be a Eurocurrency Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be
applicable to such Borrowing, which shall be a period contemplated
by the definition of the term “Interest Period”;
and
(v) the location and number of the
Company’s account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.07.
Promptly following receipt of a
Competitive Bid Request in accordance with this Section, the
Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive
Bids.
(b) Each Lender may (but shall not
have any obligation to) make one or more Competitive Bids to the
Company in response to a Competitive Bid Request. Each Competitive
Bid by a Lender must be in a form approved by the Administrative
Agent and must be received by the Administrative Agent by telecopy,
(i) in the case of a Eurocurrency Competitive Borrowing, not
later than 12:00 noon, New York City time, four Business Days
before the date of the proposed Competitive Borrowing and (ii) in
the case of a Fixed Rate Borrowing, not later than 9:30 a.m.,
New York City time, on the date of the proposed Competitive
Borrowing. Competitive Bids that do not conform to the form
approved by the Administrative Agent may be rejected by the
Administrative Agent, and the Administrative Agent shall notify the
applicable Lender as promptly as practicable. Each Competitive Bid
shall specify (i) the principal amount (which may equal the
entire principal amount of the Competitive Borrowing requested by
the Company) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Rates at
which the Lender is prepared to make such Loan or Loans (expressed
as a percentage rate per annum in the form of a decimal to no more
than four decimal places) and (iii) the Interest Period
applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall
promptly notify the Company by telecopy of the Competitive Bid Rate
and the principal amount specified in each Competitive Bid and the
identity of the Lender that shall have made such Competitive
Bid.
(d) Subject only to the provisions
of this paragraph, the applicable Borrower may accept or reject any
Competitive Bid. The Borrower shall notify the Administrative Agent
by telephone, confirmed by telecopy in a form approved by the
Administrative Agent, whether and to what extent it has decided to
accept or reject each Competitive Bid, (i) in the case of a
Eurocurrency Competitive Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of the proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than
10:30 a.m., New York City time,
on the date of the proposed Competitive Borrowing; provided
that (i) the failure of the Borrower to give such notice shall
be deemed to be a rejection of each Competitive Bid, (ii) the
Borrower shall not accept a Competitive Bid made at a particular
Competitive Bid Rate if such Borrower rejects a Competitive Bid
made at a lower Competitive Bid Rate, (iii) the aggregate
amount of the Competitive Bids accepted by the Borrower shall not
exceed the aggregate amount of the requested Competitive Borrowing
specified in the related Competitive Bid Request and (iv) to
the extent necessary to comply with clause (iii) above, the
Borrower may accept Competitive Bids at the same Competitive Bid
Rate in part, which acceptance, in the case of multiple Competitive
Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid;
provided further that in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids
at a particular Competitive Bid Rate pursuant to clause (iv)
the amounts shall be rounded to integral multiples of the Borrowing
Multiple in a manner determined by the Borrower. A notice given by
the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall
promptly notify each bidding Lender by telecopy whether or not its
Competitive Bid has been accepted (and, if so, the amount and
Competitive Bid Rate so accepted), and each successful bidder will
thereupon become bound, subject to the terms and conditions hereof,
to make the Competitive Loan in respect of which its Competitive
Bid has been accepted.
(f) If the Administrative Agent or
one of its Affiliates shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid
directly to the applicable Borrower at least one quarter of an hour
earlier than the time by which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant
to paragraph (b) of this Section.
SECTION 2.06. [Intentionally
Omitted]
SECTION 2.07. Funding of
Borrowings. (a) Each Lender shall make each Loan (other than a
Contract Loan) to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds
by 2:00 p.m., New York City time, to the account of the
Administrative Agent. The Administrative Agent will make such Loans
available to the relevant Borrower by promptly crediting the
amounts so received, in like funds, to an account of such Borrower
maintained by the Administrative Agent (or another account
specified by such Borrower in the applicable Borrowing Request) in
New York City. Each Lender shall make each Contract Loan to be made
by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by the time and to the account agreed
upon by the relevant Borrower and the applicable Lender.
(b) Unless the Administrative Agent
shall have received notice from a Lender prior to the proposed date
of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing,
the
Administrative Agent may assume that
such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the relevant Borrower a
corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the
Administrative Agent, and the Administrative Agent has made an
amount corresponding to such share available to such Borrower, then
the applicable Lender and such Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the
date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent, at (i)
in the case of such Lender, the rate reasonably determined by the
Administrative Agent to be the cost to it of funding such amount or
(ii) in the case of such Borrower, the interest rate
applicable to the subject Loan. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing and the
Administrative Agent shall return to such Borrower any amount
(including interest) paid by such Borrower to the Administrative
Agent pursuant to this paragraph.
SECTION 2.08. Repayment of
Borrowings; Evidence of Debt; Extension of Maturity Date. (a)
Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for the accounts of the applicable Lenders (i)
the then unpaid principal amount of the Loans comprising each
Borrowing of such Borrower on the Maturity Date and (ii) the then
unpaid principal amount of each Competitive Loan on the last day of
the Interest Period applicable thereto. Each Borrower hereby
unconditionally promises to pay to the applicable Lender the then
unpaid principal amount of each Contract Loan on the date or dates
agreed by such Borrower and such Lender.
(b) Each Lender shall maintain in
accordance with its usual practice an account or accounts
evidencing the obligations of each Borrower to such Lender
resulting from the Loans made by such Lender.
(c) The Administrative Agent shall
maintain accounts in which it shall record (i) the amount of
each Borrowing made hereunder, the Class and Type thereof and the
Interest Period applicable thereto and (ii) the amount of any
sum received by the Administrative Agent hereunder for the accounts
of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts
maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the
Administrative Agent to maintain such accounts, or any error
therein, shall not in any manner affect the obligation of any
Borrower to repay the Loans made to it in accordance with the terms
of this Agreement.
(e) Any Lender may request that
Loans of any Class made by it to any Borrower be evidenced by a
promissory note if it is the policy of such Lender to
obtain
promissory notes in transactions
comparable to those provided for herein or if such Lender has
another business reason for requesting such a promissory note. In
such event, each applicable Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and
its registered assigns) in the form of Exhibit D hereto.
Thereafter, the Loans evidenced by each such promissory note and
interest thereon shall at all times (including after assignment
pursuant to Section 10.04) be represented by one or more
promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
(f) Each Borrower may, by notice to
the Administrative Agent (which shall promptly deliver a copy to
each of the Lenders) given not less than 45 days and not more than
60 days prior to the Termination Date, extend the Maturity Date to
a date not later than the first anniversary of the Termination
Date; provided that any such extension of the Maturity Date
shall be subject to the satisfaction, on and as of the Termination
Date, of the following conditions:
(i) The representations and
warranties of the Borrowers set forth herein shall be true and
correct on and as of the Termination Date, except to the extent
such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties shall be
true and correct as of such earlier date).
(ii) Immediately before and after
the Termination Date, no Default shall have occurred and be
continuing.
An extension of the Maturity Date as set forth
herein shall be deemed to constitute a representation and warranty
by each Borrower on and as of the Termination Date as to the
matters specified in paragraphs (i) and (ii) of this Section
2.08(f). Loans repaid or prepaid after the Termination Date may not
be reborrowed.
SECTION 2.09. Interest
Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a
Eurocurrency Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. After the initial Revolving
Borrowings, the Borrowers may elect to convert and continue such
Revolving Borrowings to or as other Revolving Borrowings as
provided in this Section. The Borrowers may elect different options
with respect to different portions of the affected Borrowings, in
which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowings and any Loans
resulting from an election made with respect to any such portion
shall be considered a separate Borrowing. Notwithstanding any other
provision of this Section, no Borrowing may be converted into or
continued as a Borrowing with an Interest Period ending after the
Maturity Date. This Section shall not apply to Competitive Loans or
to Contract Loans, which may not be converted or
continued.
(b) To make an election pursuant to
this Section, a Borrower, or the Company on its behalf, shall
notify the Administrative Agent of such election by telephone in
the case of an election that would result in a Borrowing, by the
time and date that a Borrowing Request would be required under
Section 2.03 if such Borrower were requesting a Borrowing of
the Type resulting from such election to be made on the effective
date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written
Interest Election Request in a form approved by the Administrative
Agent and signed by the relevant Borrower, or the Company on its
behalf. Notwithstanding any contrary provision herein, this Section
shall not be construed to permit any Borrower to elect an Interest
Period for Eurocurrency Loans that does not comply with
Section 2.02(d).
(c) Each telephonic and written
Interest Election Request shall specify the following information
in compliance with Section 2.03:
(i) the Borrowing to which such
Interest Election Request applies and, if different options are
being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the
election made pursuant to such Interest Election Request, which
shall be a Business Day;
(iii) whether a Eurocurrency
Borrowing or an ABR Borrowing is elected; and
(iv) in the case of an election of a
Eurocurrency Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which shall be a
period contemplated by the definition of the term “Interest
Period”; provided that no Eurocurrency Borrowing may
be elected with an Interest Period that would extend after the
Maturity Date.
If any such Interest Election
Request requests a Eurocurrency Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration.
(d) Promptly following receipt of an
Interest Election Request, the Administrative Agent shall advise
each Lender of the details thereof and of such Lender’s
portion of each resulting Borrowing.
(e) If the relevant Borrower fails
to deliver a timely Interest Election Request with respect to a
Eurocurrency Borrowing prior to the end of the Interest
Period
applicable thereto, then, unless
such Borrowing is repaid as provided herein, at the end of such
Interest Period, such Borrowing shall be converted to an ABR
Borrowing.
(f) The conversion or continuation
of any Borrowing shall not constitute a repayment of amounts
outstanding or a new advance of funds hereunder.
SECTION 2.10. Termination and
Reduction of Commitments. (a) Unless previously terminated, the
Commitments shall terminate on the Termination Date.
(b) The Company may at any time
terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be
in an amount that is an integral multiple of the Borrowing Multiple
and not less than the Borrowing Minimum and (ii) the Company shall
not terminate or reduce the Commitments if, after giving effect to
any concurrent prepayment of the Loans in accordance with
Section 2.11, the Revolving Loan Exposure of any Lender would
exceed its Commitment or the aggregate Exposures would exceed the
aggregate Commitments.
(c) The Company shall notify the
Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three
Business Days prior to the effective date of such termination or
reduction, specifying the effective date of such election. Promptly
following receipt of any such notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice
delivered by the Company pursuant to this Section shall be
irrevocable; provided that a notice of termination of the
Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Company (by notice to
the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or
reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be made
