364-DAY REVOLVING CREDIT AGREEMENT DATED 10/6/05

EXHIBIT 99.1

 

CONFORMED COPY

 

364-DAY REVOLVING CREDIT AGREEMENT

 

dated as of

 

October 6, 2005

 

among

 

FORTUNE BRANDS, INC.,

 

FORTUNE BRANDS FINANCE UK P.L.C.,

 

The Lenders Party Hereto

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

 

and

 

BARCLAYS BANK PLC

and

CITICORP NORTH AMERICA, INC.,

as Syndication Agents

 

 

 

BARCLAYS CAPITAL,

J.P. MORGAN SECURITIES INC.

and

CITIGROUP GLOBAL MARKETS INC.,

as Lead Arrangers

 

BARCLAYS CAPITAL

and

J.P. MORGAN SECURITIES INC.,

as Joint Bookrunners

 

ABN AMRO BANK, N.V.

and

CREDIT SUISSE,

as Documentation Agents

TABLE OF CONTENTS

 

 

i

 

ii

 

SCHEDULES :

 

Schedule 2.01 — Revolving Commitments

Schedule 3.06 — Disclosed Matters

 

EXHIBITS :

 

Exhibit A — Form of Assignment and Acceptance

Exhibit B-1 — Form of Opinion of Company’s Counsel

Exhibit B-2 — Form of Opinion of Fortune Brands UK’s counsel

Exhibit C — MLA Cost

Exhibit D — Form of Revolving Note

Exhibit E — Form of Borrowing Request

Exhibit F — Form of Financial Officer’s Certificate

 

iii

364-DAY REVOLVING CREDIT AGREEMENT dated as of October 6, 2005, among FORTUNE BRANDS, INC., a Delaware corporation, FORTUNE BRANDS FINANCE UK P.L.C., a public limited company organized under the laws of England and Wales, the LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and BARCLAYS BANK PLC and CITICORP NORTH AMERICA, INC., as Syndication Agents.

 

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.

 

“ Acquired Brands ” means the branded spirits and wines owned by Allied to be acquired by the Company (or one or more Subsidiaries of the Company) as described in the Company’s public filings prior to the Effective Date; provided , however , that until the direct or indirect transfer by Pernod to the Company (or one or more Subsidiaries of the Company) of the Maker’s Mark brand of spirits, such brand shall be excluded from the term “Acquired Brands”.

 

“ Acquired Brands Subsidiaries ” means the entities acquired by Bidco upon consummation of the scheme of arrangement of Allied the assets and liabilities of which include the Acquired Brands and liabilities to be assumed by the Company (or one or more Subsidiaries of the Company) as described in the Company’s public filings prior to the Effective Date.

 

“ Adjusted LIBO Rate ” means, with respect to any Eurocurrency Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

 

“ Administrative Agent ” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders hereunder.

 

“ 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. With respect to any Lender, the term “Affiliate” shall be deemed to include (a) any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is administered or managed by such Lender or an Affiliate of such Lender and (b) in the case of any Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.

 

“ Allied ” means Allied Domecq PLC, a public limited company organized under the laws of England and Wales.

 

“ Alternate Base Rate ” means, for any day, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus ½ of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

 

“ Alternative Committed Currency ” means British Pounds Sterling or Euro.

 

“ Alternative Currency ” means (a) any Alternative Committed Currency or (b) any other currency specified by the applicable Borrower in a Competitive Bid Request relating to a proposed Competitive Borrowing if such currency is freely transferable and convertible into Dollars in the London market at the time and for which LIBO Rates may be determined at such time by reference to the Telerate screen as provided in the definition of “LIBO Rate”.

 

“ Alternative Currency Borrowing ” means a Borrowing comprised of Alternative Currency Loans.

 

“ Alternative Currency Equivalent ” means, with respect to an amount in Dollars on any date in relation to a specified Alternative Currency, the amount of such specified Alternative Currency that may be purchased with such amount of Dollars at the Spot Exchange Rate with respect to such Alternative Currency on such date.

 

“ Alternative Currency Loan ” means any Loan denominated in an Alternative Currency.

 

“ Applicable Currency ” has the meaning assigned to such term in Section 2.12(a).

 

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“ Applicable Rate ” means, for any day, (i) with respect to any Eurocurrency Revolving Loan, the applicable rate per annum set forth below under the caption “Eurocurrency Spread”, (ii) with respect to the facility fees payable hereunder, the applicable rate per annum set forth below under the caption “Facility Fee Rate” and (iii) with respect to any utilization fees payable hereunder, the applicable rate per annum set forth below under the caption “Utilization Fee”, in each case based upon the ratings by Moody’s and S&P, respectively, applicable on such date to the Index Debt:

 

 

For purposes of the foregoing, (a) if either Moody’s or S&P shall not have in effect a rating for the Index Debt (other than by reason of the circumstances referred to in the last sentence of this definition), then such rating agency shall be deemed to have established a rating in Category 6; (b) if the ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall fall within different Categories, the Applicable Rate shall be based on the higher of the two ratings unless one of the two ratings is two or more Categories lower than the other, in which case the Applicable Rate shall be determined by reference to the Category next below that of the higher of the two ratings; (c) if the ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency; and (d) so long as no Default shall have occurred and be continuing, the Company may replace either S&P or Moody’s (but not both) with Fitch; provided that, in the event of any such replacement, clause (b) above shall cease to apply and, in lieu of such clause (b) , if the ratings established or deemed to have been established by Moody’s or S&P (whichever remains as a rating agency for purposes hereof) or Fitch are not in the same Category, then the Applicable Rate will be determined based on the lower rating unless the lower rating is two or more Categories lower than the rating established or deemed to have been established by the other rating agency, in which case the Applicable Rate shall be determined by reference to the Category next above that of the lower of the two ratings. Each change in the Applicable Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moody’s, S&P or Fitch (whichever are applicable) shall change, or if either such applicable rating agency shall cease to be in the business of rating corporate debt obligations, the Borrowers and the Lenders shall negotiate in good faith to amend

 

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this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.

 

“ Applicable Revolving Commitment Percentage ” means, with respect to any Lender, the percentage of the total Revolving Commitments represented by such Lender’s Revolving Commitment. If the Revolving Commitments have terminated or expired, the Applicable Revolving Commitment Percentages shall be determined based upon the Revolving Commitments most recently in effect, giving effect to any assignments.

 

“ Assigned Dollar Value ” has the meaning assigned to such term in Section 2.21.

 

“ Assignment and Acceptance ” means an assignment and acceptance 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 A or any other form approved by the Administrative Agent.

 

“ 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 Revolving Commitments.

 

“ Bidco ” means Goal Acquisitions Limited, a private limited company organized under the laws of Guernsey, all of the outstanding ordinary share capital of which is owned by a wholly-owned subsidiary of Pernod, formed to effect the acquisition by Bidco of the entire outstanding share capital of Allied.

 

“ Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

 

“ Board Resolution ” means a copy of a resolution delivered to the Administrative Agent and certified by the Secretary or an Assistant Secretary of the Company as having been duly adopted by the Board of Directors of the Company, or by the Secretary or an Assistant Secretary of the Company or the Secretary of the Executive Committee of such Board of Directors as having been duly adopted by such Executive Committee, or by the Secretary or an Assistant Secretary of the Company or the Secretary of any other committee of such Board of Directors duly authorized to act for it hereunder as having been duly adopted by such other committee.

 

“ Borrowers ” means the Company and Fortune Brands UK.

 

“ Borrowing ” means (a) Revolving Loans to the same Borrower of the same Type and Currency, made, converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect, (b) a Competitive Loan or group of Competitive Loans to the same Borrower of the same Type and Currency made on the same date and as to which a single Interest Period is in effect or (c) a Negotiated Rate Loan.

 

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“ Borrowing Date ” means any Business Day specified in a notice pursuant to Section 2.02 or 2.04 as a date on which the relevant Borrower requests Loans to be made hereunder.

 

“ Borrowing Request ” means a request by either Borrower for a Revolving Borrowing in accordance with Section 2.03.

 

“ British Pounds Sterling ” or “ , ” means lawful money of the United Kingdom.

 

“ 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, except that when used in connection with a Eurocurrency Loan or an Alternative Currency Loan, “Business Day” also shall exclude any day on which dealings in foreign currencies and exchange between banks may not be carried on in London, England or New York, New York or, in the case of an Alternative Currency Loan denominated in a currency other than British Pounds Sterling, the place designated by the Administrative Agent from time to time as the place for payments in such currency.

 

“ 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 Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), of shares representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Company; or (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (i) nominated by the board of directors of the Company nor (ii) appointed by directors so nominated.

 

“ 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, for purposes of Section 2.13(b) or 2.18, by any lending office of such Lender or by such Lender’s holding company, if any) 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.

 

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“ 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 Negotiated Rate Loans.

 

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.

 

“ Company ” means Fortune Brands, Inc.

 

“ Competitive Bid ” means an offer by a Lender to make a Competitive Loan in accordance with Section 2.04 .

 

“ 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 by either Borrower for Competitive Bids in accordance with Section 2.04 .

 

“ Competitive Loan ” means a Loan made pursuant to a Competitive Bid as contemplated by Section 2.04 .

 

“ Consolidated EBITDA ” means, for any period of four consecutive fiscal quarters, Consolidated Net Income for such period, excluding, to the extent included in determining such Consolidated Net Income, extraordinary items, noncash restructuring charges, noncash nonrecurring charges, losses from asset impairments and gains or losses resulting from the sale of assets not in the ordinary course of business, plus, without duplication and to the extent deducted in determining such Consolidated Net Income, the sum of (i) Consolidated Interest Expense for such period, (ii) income taxes for such period, and (iii) depreciation and amortization of intangibles for such period, all determined on a consolidated basis for each such item in accordance with GAAP.

 

“ Consolidated Interest Expense ” means, for any period, the gross interest expense of the Company and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.

 

“ Consolidated Net Income ” means, for any period, net income for the Company and the Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.

 

“ Consolidated Net Tangible Assets ” means the excess over current liabilities of all assets as determined by the Company and set forth in a consolidated balance sheet of the Company and its consolidated Subsidiaries prepared in accordance with GAAP as of a date within 90 days of the date of such determination, after deducting goodwill, trademarks, patents, other like intangibles and the minority interest of others.

 

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“ 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.

 

“ Currency ”, when used in reference to any amount, refers to whether such amount is denominated in (a) Dollars, (b) British Pounds Sterling, (c) Euro or (d) in respect of any Competitive Borrowing denominated in another Alternative Currency, such Alternative Currency.

 

“ Currency Equivalent ” means the Dollar Equivalent or the Alternative Currency Equivalent, as the case may be, of the Applicable Currency.

 

“ 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.

 

“ Denomination Date ” means, in relation to any Alternative Currency Borrowing, the date that is three Business Days before the date such Borrowing is made.

 

“ Disclosed Matters ” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06 and the matters described in any filings made by the Company from time to time with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended.

 

“ Dollar Equivalent ” means, with respect to an amount of any Alternative Currency on any date, the amount of Dollars that may be purchased with such amount of the Alternative Currency at the Spot Exchange Rate with respect to the Alternative Currency on such date.

 

“ Dollars ” or “ $ ” refers to lawful money of the United States of America.

 

“ Effective Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 10.02).

 

“ EMU Legislation ” means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states.

 

“ 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

 

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or indemnities), of either Borrower or any Subsidiary 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.

 

“ Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any Person.

 

“ 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 either Borrower, 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) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by either Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by either Borrower 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 other than under circumstances pursuant to which such Plan could not reasonably be expected to require any additional funding at any time following such termination or appointment; (f) the incurrence by either Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by either Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from either Borrower 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.

 

“ Euro ” or “ € ” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation

 

“ 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 Adjusted LIBO Rate (or, in the case of a Competitive Loan, the LIBO Rate).

 

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“ Event of Default ” has the meaning assigned to such term in Article VII.

 

“ Excluded Taxes ” means, with respect to the Administrative Agent, J.P. Morgan Europe Limited, any Lender or any other recipient of any payment to be made by or on account of any obligation of either Borrower hereunder, (a) income, franchise or similar taxes imposed on (or measured by) its net income by the United States of America or the United Kingdom or by the jurisdiction under the laws of which the Administrative Agent, J.P. Morgan Europe Limited, such Lender or other such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (a) above, and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by either Borrower under Section 2.17(b)) , any withholding tax that (i) is in effect and would apply to amounts payable to such Foreign Lender, at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), by a Borrower previously designated hereunder, except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrowers with respect to any withholding tax pursuant to Section 2.15(a) , or (ii) is attributable to such Foreign Lender’s failure to comply with Section 2.15(e) .

 

“ Extended Maturity Date ” means October 5, 2007.

 

“ 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 either Borrower.

 

“ Fitch ” means Fitch, Inc., or any successor thereto.

 

“ 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.

 

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“ Foreign Lender ” means, with respect to either Borrower, any Lender that is organized under the laws of a jurisdiction other than that in which such Borrower is located. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

“ Fortune Brands UK ” means Fortune Brands Finance UK p.l.c.

 

“ Funded Debt ” of any Person means (i) all indebtedness for money borrowed which by its terms matures more than 12 months from the creation, extension or renewal thereof or which is extendible or renewable at the option of the obligor on such indebtedness to a time more than 12 months after its creation, extension or renewal and (ii) all guarantees, direct or indirect, of such indebtedness of others or of dividends; provided that Funded Debt shall not include endorsements of negotiable instruments for collection, deposit or negotiation and guarantees by the Company or a Restricted Subsidiary arising in connection with the sale, discount, guarantee or pledge of notes, chattel mortgages, leases, accounts receivable, trade acceptances and other paper arising, in the ordinary course of business, out of installment or conditional sales to or by, or transactions involving title retention with, distributors, dealers or other customers, of merchandise, equipment or services. The Company or a Restricted Subsidiary shall be deemed to have assumed any Funded Debt secured by any mortgage upon any of its property or assets whether or not it has actually done so.

 

“ GAAP ” means generally accepted accounting principles in the United States of America.

 

“ Governmental Authority ” means the government of the United States of America, the United Kingdom, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

“ Granting Lender ” has the meaning specified in paragraph (h) of Section 10.04 .

 

“ 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 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 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 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.

 

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“ 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.

 

“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all Capital Lease Obligations of such Person and (c) all Guarantees by such Person of Indebtedness of others described in clause (a) or (b) above. 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 Debt ” means senior, unsecured, long-term indebtedness for borrowed money of the Company that is not guaranteed by any other Person or subject to any other credit enhancement.

 

“ Information Memorandum ” means the Confidential Information Memorandum dated September 2005, relating to the Borrowers and the Transactions.

 

“ Interest Election Request ” means a request by either Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.06 .

 

“ 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 Borrowing 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 that are specified in the applicable Competitive Bid Request as Interest Payment Dates with respect to such Borrowing and (d) with respect to any Negotiated Rate Loan, the last day of the Interest Period applicable to such Negotiated Rate Loan and any other day during such Interest Period on which interest therein is payable, as separately agreed between the applicable Borrower and the applicable Lender.

 

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“ Interest Period ” means (a) 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 applicable Borrower may elect (or, with the consent of each Lender participating in such Borrowing, such other time period as the applicable Borrower may request), (b) with respect to any Fixed Rate Borrowing, the period (which shall not be less than seven days or more than 180 days) commencing on the date of such Borrowing and ending on the date specified in the applicable Competitive Bid Request and (c) with respect to any Negotiated Rate Borrowing, the period commencing on the date of such Borrowing and ending on such date as shall be mutually agreed upon between the applicable 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, in the case of a Revolving Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

“ Larios Assets ” means the Larios brand of spirits, associated brands and certain related assets and liabilities owned by Pernod to be transferred to the Company (or one or more Subsidiaries of the Company) as described in the Company’s public filings prior to the Effective Date.

 

“ 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 Acceptance, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.

 

“ LIBO Rate ” means, with respect to any Eurocurrency Borrowing for any Interest Period, the rate per annum determined by reference to the British Bankers’ Association Interest Settlement Rates for deposits with a maturity comparable to such Interest Period denominated in the Currency in which such Eurocurrency Borrowing is denominated as reflected on the applicable Telerate Screen (or on any successor or substitute page of the Telerate Service, providing rate quotations comparable to those currently provided on such Service, as determined by the Administrative Agent or J.P. Morgan Europe Limited, as applicable, from time to time for purposes of providing quotations of interest rates applicable to deposits of Currency in which such Borrowing is denominated) at approximately 11:00 a.m., London time, on the Quotation Day for the currency in which such Borrowing is denominated. In the event that such rate is not available at such time for any reason, then the “ LIBO Rate ” with respect to such Eurocurrency Borrowing for such Interest Period shall be the rate at which Dollar

 

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deposits of $5,000,000 (or in the case of Eurocurrency Borrowings denominated in an Alternative Currency, deposits with a Dollar Equivalent of $5,000,000) and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent or J.P. Morgan Europe Limited, as applicable, in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, on the Quotation Day for the currency in which such Borrowing is denominated prior to the commencement of 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 and (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.

 

“ Loan ” means any loan made by a Lender to a Borrower pursuant to this Agreement.

 

“ Local Time ” means (a) with respect to any Loan or Borrowing denominated in Dollars, New York City time and (b) with respect to any Loan or Borrowing denominated in any Alternative Currency, London time (or such other time as J.P. Morgan Europe Limited may designate in respect of the applicable currency).

 

“ 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 or financial condition of the Company and the Subsidiaries taken as a whole or (b) the rights of or benefits available to the Lenders under this Agreement.

 

“ Material Indebtedness ” means Indebtedness (other than the Loans) of any one or more of the Company and the Subsidiaries in an aggregate principal amount exceeding $50,000,000.

 

“ Material Subsidiary ” means any Subsidiary that is (a) a Restricted Subsidiary, (b) Fortune Brands UK or (c) a “significant subsidiary” of the Company within the meaning of Regulation S-X of the Securities and Exchange Commission (or any successor provision).

 

“ MLA Cost ” means the cost imputed to the Lenders in connection with a Borrowing denominated in British Pounds Sterling in compliance with the Mandatory Liquid Asset requirements of the Bank of England during an Interest Period (or part of an Interest Period), expressed as a rate per annum and determined in accordance with Exhibit C.

 

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“ Moody’s ” means Moody’s Investors Service, Inc., or any successor thereto.

 

“ mortgage ” means any mortgage, pledge or security interest.

 

“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

“ Negotiated Rate Loan ” means a Loan made to a Borrower by a Lender pursuant to a Negotiated Rate Loan Request in such principal amount, for such Interest Period and having such interest rate(s) and repayment terms as shall, in each case, be mutually agreed upon between such Borrower and such Lender.

 

“ Negotiated Rate Loan Request ” means a request by a Borrower for a Lender to make a Negotiated Rate Loan, which shall be delivered to such Lender (with a copy to the Administrative Agent) in writing, by facsimile transmission or by telephone, immediately confirmed in writing, and which shall specify the amount to be borrowed and the proposed Borrowing Date, Currency and Interest Period.

 

“ Obligations ” means (a) the obligation of each Borrower to pay 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, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (b) 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 Company or any other Borrower under this Agreement.

 

“ 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 from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

“ Pernod ” means Pernod Ricard S.A., a company organized under the laws of the Republic of France.

 

“ 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

 

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Code or Section 302 of ERISA, and in respect of which either Borrower 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 JPMorgan Chase Bank, N.A. 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 ” in respect of the determination of the LIBO Rate for any Interest Period (a) for any Eurocurrency Borrowing in Dollars or any Alternative Currency (other than British Pounds Sterling), means the day on which quotations would ordinarily be given by prime banks in the London interbank market for deposits in the currency in which such Borrowing is denominated for delivery on the first day of such Interest Period; provided , that if quotations would ordinarily be given on more than one date, the Quotation Day for such Interest Period shall be the last of such dates and (b) for any Eurocurrency Borrowing denominated in British Pounds Sterling, means the first day of such Interest Period.

 

“ Register ” has the meaning set forth in Section 10.04 .

 

“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers and employees of such Person and such Person’s Affiliates.

 

“ Required Lenders ” means, at any time, Lenders having Revolving Credit Exposures and unused Revolving Commitments representing more than 50% of the sum of the total Revolving Credit Exposures and unused Revolving Commitments at such time; 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 Revolving Commitments expire or terminate, the outstanding Competitive Loans and Negotiated Rate Loans of the Lenders shall be included in their respective Revolving Credit Exposures in determining the Required Lenders.

 

“ Restricted Subsidiary ” means any Subsidiary other than (a) each Subsidiary organized and existing under laws other than the laws of the United States or a State thereof, (b) each Subsidiary substantially all of the physical properties of which are located, or substantially all of the business of which is carried on, outside of the United States, (c) each Subsidiary the primary business of which consists of finance, banking, credit, leasing, insurance, financial services, or similar operations or any combination thereof, (d) each Subsidiary the primary business of which consists of the ownership, construction, management, operation, sale or leasing of real property or improvements thereon, similar operations or any combination thereof, (e) each Subsidiary the primary business of which consists of the exploration for, or the extraction, production, transporting or marketing of petroleum or gas or other extracted substances, or similar operations or any combination thereof, (f) each Subsidiary the primary business of which consists of the ownership or operation of one or more transportation businesses or

 

15

facilities or equipment related thereto or similar operations or any combination thereof, (g) each Subsidiary the primary business of which consists of obtaining funds with which to make investments outside of the United States, (h) each Subsidiary substantially all of the assets of which consist of the ownership directly or indirectly of the Equity Interests of one or more Subsidiaries covered by the preceding clauses (a) through (g), (i) each Subsidiary which the Company or any Subsidiary is, by the terms of the final order of any court of competent jurisdiction from which no further appeal may be taken, required to dispose of and which shall by Board Resolution be determined not to be a Restricted Subsidiary, effective as of the date specified in such resolution and (j) any entity a majority of the voting Equity Interests of which shall at the time be owned directly or indirectly by one or more entities specified in the preceding clauses (a) through (i); provided that the Board of Directors may by Board Resolutions declare any such Subsidiary to be a Restricted Subsidiary, effective as of the date such resolution is adopted. For purposes of this definition and any provisions of this Agreement in which the term Restricted Subsidiary appears, the term “Subsidiary” means, at any date, any entity of which the Company, or the Company and one or more Subsidiaries, directly or indirectly own outstanding Equity Interests having voting power sufficient to elect, under ordinary circumstances (not dependent upon the happening of a contingency), a majority of the directors or persons performing similar functions.

 

“ Revaluation Date ” means, with respect to an Alternative Currency Borrowing, the last day of each Interest Period with respect to such Borrowing (and if such Interest Period has a duration of more than three months, 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).

 

“ Revolving Commitment ” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Company and Fortune Brands UK hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.04 . The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01 , or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable.

 

“ Revolving Credit Exposure ” means, with respect to any Lender at any time, the sum of (a) the outstanding principal amount of such Lender’s Revolving Loans denominated in Dollars, plus (b) the Assigned Dollar Value at such time of the outstanding principal amount of such Lender’s Revolving Loans denominated in Alternative Committed Currencies.

 

“ Revolving Loan ” means a Loan made to the Company or Fortune Brands UK pursuant to Section 2.01 .

 

“ S&P ” means Standard & Poor’s Ratings Service, or any successor thereto.

 

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“ Secured Debt ” means indebtedness for money borrowed if such indebtedness is secured by a mortgage upon any assets of the Company or a Restricted Subsidiary, including in such assets, without limitation, shares of stock or indebtedness of any Restricted Subsidiary owned by the Company or another Restricted Subsidiary. Indebtedness secured by mortgages on property existing at the time it is acquired and mortgages securing any part of the purchase price of property purchased, constructed or improved shall be deemed to be indebtedness for money borrowed. The Company or a Restricted Subsidiary shall be deemed to have assumed any indebtedness secured by any mortgage upon any of its property or assets whether or not it has actually done so.

 

“ Spot Exchange Rate ” means, on any day, (a) with respect to any Alternative Currency in relation to Dollars, the spot rate at which Dollars are offered on such day for such Alternative Currency which appears on page FX of the Reuters Screen at approximately 11:00 a.m., London time (and if such spot rate is not available on the applicable page of the Reuters Screen, such spot rate as quoted by J.P. Morgan Europe Limited at approximately 11:00 a.m., London time), and (b) with respect to Dollars in relation to any specified Alternative Currency, the spot rate at which such specified Alternative Currency is offered on such day for Dollars which appears on page FXFX of the Reuters Screen at approximately 11:00 a.m., London time (and if such spot rate is not available on the applicable page of the Reuters Screen, such spot rate as quoted by J.P. Morgan Europe Limited at approximately 11:00 a.m., London time). For purposes of determining the Spot Exchange Rate in connection with an Alternative Currency Borrowing, such Spot Exchange Rate shall be determined as of the Denomination Date for such Borrowing with respect to transactions in the applicable Alternative Currency that will settle on the date of such Borrowing.

 

“ SPV ” has the meaning specified in paragraph (h) of Section 10.04 .

 

“ Statutory Reserve Rate ” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

“ Subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date; provided that Bidco shall not be treated as a Subsidiary of the Company for purposes of this Agreement.

 

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“ Syndication Agents ” means Barclays Bank PLC and Citibank North America, Inc., in their respective capacities as syndication agents for the Lenders hereunder.

 

“ Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

 

“ Termination Date ” means October 5, 2006.

 

“ Term-Out Option ” has the meaning set forth in Section 2.20.

 

“ Term-Out Period ” means the period commencing on and including the Termination Date and ending on and including the Extended Maturity Date.

 

“ Total Credit Exposure ” means, at any time, the sum of (a) the total Revolving Credit Exposure of the Lenders at such time, plus (b) the outstanding principal amount of Competitive Loans and Negotiated Rate Loans of the Lenders at such time that are denominated in Dollars, plus (c) the Assigned Dollar Value at such time of the outstanding principal amount of all Competitive Loans and Negotiated Rate Loans of the Lenders at such time that are denominated in Alternative Currencies.

 

“ Transactions ” means (a) the execution, delivery and performance by the Borrowers of this Agreement, (b) the consummation of the transactions contemplated hereby and (c) the borrowing of the Loans 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 (a) the Adjusted LIBO Rate, (b) the Alternate Base Rate, (c) in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed Rate or (d) in the case of a Negotiated Rate Loan or Borrowing, the rate negotiated between the applicable Borrower and the applicable Lender.

 

“ Value ” means, as to any sale and lease back transaction to which Section 6.03 applies, the product of (a) the net proceeds from any such sale (less the amount applied in connection with such sale to the retirement of outstanding Funded Debt in accordance with Section 6.03(c)) and (b) a fraction, the numerator of which is the number of full years of the term of the lease relating to such property (without regard to any options to renew or extend such term) remaining at the time of the determination of such value and the denominator of which is the number of full years of such term at the time of such sale.

 

“ 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

 

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Loan”) or by Type ( e.g. , a “Eurocurrency Loan”) or by Currency ( e.g. , a “Dollar Loan”) or by Class, Type and Currency ( e.g. , a “Eurocurrency Dollar 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 Currency ( e.g. , a “Dollar Borrowing”) or by Class, Type and Currency ( e.g. , a “Eurocurrency Dollar 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 (subject to any restrictions on such assignments set forth herein), (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. Revolving Commitments. Subject to the terms and conditions set forth herein, each Lender agrees to make Revolving Loans in Dollars or in any Alternative Committed Currency to the Company or Fortune Brands UK from time

 

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to time during the Availability Period in an aggregate principal amount that will not result in (a) such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment or (b) the Total Credit Exposure exceeding the total Revolving Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, each Borrower may borrow, prepay and reborrow Revolving Loans. Revolving Loans repaid on or after the Termination Date may not be reborrowed.

 

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 ratably in accordance with their respective Revolving Commitments. Each Competitive Loan and Negotiated Rate Loan shall be made in accordance with the procedures set forth in Section 2.04. 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 Revolving Commitments and Competitive Bids of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

 

(b) Subject to Section 2.12, (i) each Revolving Borrowing shall be comprised entirely of ABR Loans or Eurocurrency Loans as the applicable Borrower may request in accordance herewith (except that a Revolving Borrowing denominated in an Alternative Committed Currency must be comprised entirely of Eurocurrency Loans), (ii) each Competitive Borrowing shall be comprised entirely of Eurocurrency Loans or Fixed Rate Loans as the applicable Borrower may request in accordance herewith and (iii) each Negotiated Rate Loan shall be denominated in Dollars or an Alternative Currency as agreed between the applicable Borrower and the applicable Lender. Each Lender at its option may make any Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not (a) affect the obligation of the applicable Borrower to repay such Loan in accordance with the terms of this Agreement or (b) result in the Borrower incurring any additional cost or expense (including pursuant to Section 2.13, 2.15 or 2.18).

 

(c) At the commencement of each Interest Period for any Eurocurrency Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total Revolving Commitments. Each Competitive Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000. Each Negotiated Rate Borrowing shall be in an aggregate amount that is separately agreed between the applicable Borrower and the applicable Lender. Subject to Section 2.12, Loans made pursuant to any Alternative Currency Borrowing shall be made in the Alternative Currency specified in the applicable Borrowing Request or Competitive Bid Request in an aggregate amount equal to the Alternative Currency Equivalent of the Dollar amount specified in such Borrowing Request or, in the case of a Competitive Borrowing, the Dollar amount accepted pursuant to Section 2.04 (in each case as determined by J.P.

 

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Morgan Europe Limited based upon the applicable Spot Exchange Rate as of the Denomination Date for such Borrowing (which determination shall be conclusive absent manifest error)); provided that for purposes of the borrowing amounts specified above, each Alternative Currency Borrowing shall be deemed to be in a principal amount equal to its Assigned Dollar Value. Borrowings of more than one Type, Class and Currency may be outstanding at the same time; provided that there shall not at any time be more than a total of eight Eurocurrency Revolving Borrowings outstanding in any Currency.

 

(d) Notwithstanding any other provision of this Agreement, the Borrowers shall not be entitled to request, or to elect to convert or continue, any Borrowing (other than to continue a Borrowing denominated in an Alternative Committed Currency for a one-month Interest Period, which shall not affect the applicable Borrower’s obligations to repay such Borrowing on the Termination Date (or, if the Term-Out Option is exercised, on the Extended Maturity Date), together with accrued interest thereon and any other amounts payable pursuant to Section 2.14, if any) if the Interest Period requested with respect thereto would end after the Termination Date (or, if the Term-Out Option is exercised, the Extended Maturity Date).

 

SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing, the applicable Borrower shall notify the Administrative Agent and, in the case of Revolving Borrowings denominated in any Alternative Committed Currency, J.P. Morgan Europe Limited, of such request by telephone (a) in the case of a Eurocurrency Borrowing denominated in Dollars, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing, (b) in the case of a Eurocurrency Borrowing denominated in an Alternative Committed Currency, not later than 9:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing or (c) in the case of an ABR Borrowing, not later than 10:30 a.m., 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 (and, in the case of an Alternative Currency Borrowing, J.P. Morgan Europe Limited) of a written Borrowing Request in a form approved by the Administrative Agent and signed by the applicable Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02 :

 

(i) the Borrower in respect of the requested Borrowing;

 

(ii) the aggregate amount (expressed in Dollars) and Currency (which must be Dollars or an Alternative Committed Currency) of the requested Borrowing;

 

(iii) the requested Borrowing Date, which shall be a Business Day;

 

(iv) whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;

 

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(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 applicable Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05.

 

If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving Borrowing shall be an ABR Borrowing (if denominated in Dollars) or a Eurocurrency Borrowing (if denominated in an Alternative Committed Currency). If no election as to the Currency of the requested Revolving Borrowing is specified, then the requested Revolving Borrowing shall be denominated in Dollars. If no Interest Period is specified with respect to any requested Eurocurrency Revolving Borrowing, then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration. If no election as to the identity of the Borrower is specified, the requested Revolving Borrowing shall be made by the Company. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent (in the case of Revolving Borrowings denominated in Dollars) or J.P. Morgan Europe Limited (in the case of Revolving Borrowings denominated in any Alternative Committed Currency) shall advise each applicable Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

 

SECTION 2.04. Competitive Bid and Negotiated Rate Loan Procedures. (a) Subject to the terms and conditions set forth herein, from time to time during the Availability Period either Borrower may request Competitive Bids and may (but shall not have any obligation to) accept Competitive Bids and borrow Competitive Loans denominated in Dollars or any Alternative Currency; provided that the Total Credit Exposure at any time shall not exceed the total Revolving Commitments. To request Competitive Bids, the applicable Borrower shall notify the Administrative Agent and, in the case of a Borrowing denominated in any Alternative Currency, J.P. Morgan Europe Limited, of such request by telephone, (i) in the case of a Eurocurrency Borrowing denominated in Dollars, not later than 11:00 a.m., New York City time, four Business Days before the date of the proposed Borrowing, (ii) in the case of a Eurocurrency Borrowing denominated in any Alternative Currency, not later than 9:00 a.m., New York City time, four Business Days before the date of the proposed Borrowing, and (iii) in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing; provided that the Borrowers may submit up to (but not more than) two Competitive Bid Requests on the same day, but a Competitive Bid Request shall not be made within five Business Days after the date of any previous Competitive Bid Request from either Borrower, unless any and all such previous Competitive Bid Requests shall have been withdrawn or all Competitive Bids received in response thereto rejected. Each such telephonic Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent and, if applicable, J.P. Morgan Europe Limited, of a written Competitive Bid Request in a form approved by the Administrative Agent or J.P. Morgan Europe Limited, as

 

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applicable, and signed by the applicable Borrower. Each such telephonic and written Competitive Bid Request shall specify the following information in compliance with Section 2.02 :

 

(i) the aggregate amount (expressed in Dollars) and Currency of the requested Borrowing;

 

(ii) the requested Borrowing Date, 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”;

 

(v) the location and number of the applicable Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05 ; and

 

(vi) the identity of the Borrower in respect of such Borrowing.

 

Promptly following receipt of a Competitive Bid Request in accordance with this Section, the Administrative Agent or J.P. Morgan Europe Limited, as applicable, shall notify the Lenders of the details thereof by telecopy, inviting such Lenders to submit Competitive Bids.

 

(b) Each Lender may (but shall not have any obligation to) make one or more Competitive Bids to the applicable Borrower in response to a Competitive Bid Request. Each Competitive Bid by a Lender must be in a form approved by the Administrative Agent or J.P. Morgan Europe Limited, as applicable, and must be received by the Administrative Agent (and, in the case of an Alternative Currency Borrowing, J.P. Morgan Europe Limited) by telecopy, (i) in the case of a Eurocurrency Competitive Borrowing denominated in Dollars, not later than 11:00 a.m., New York City time, three Business Days before the proposed date of such Competitive Borrowing, (ii) in the case of a Eurocurrency Competitive Borrowing denominated in any Alternative Currency, not later than 11:00 a.m., New York City time, three Business Days before the proposed date of such Competitive Borrowing and (iii) in the case of a Fixed Rate Borrowing, not later than 12:00 noon, New York City time, on the proposed date of such Competitive Borrowing. Competitive Bids that do not conform substantially 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 (expressed in Dollars and which shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and which may equal the entire principal amount of the Competitive Borrowing requested by the applicable Borrower) and Currency 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.

 

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(c) The Administrative Agent or J.P. Morgan Europe Limited, as applicable, shall promptly notify the applicable Borrower 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. Such Borrower shall notify the Administrative Agent (and, in the case of an Alternative Currency Borrowing, J.P. Morgan Europe Limited) by telephone, confirmed by telecopy in a form approved by the Administrative Agent or J.P. Morgan Europe Limited, as applicable, whether and to what extent it has decided to accept or reject each Competitive Bid (i) in the case of a Eurocurrency Competitive Borrowing denominated in Dollars, not later than 12:00 noon, New York City time, three Business Days before the date of the proposed Competitive Borrowing, (ii) in the case of a Eurocurrency Competitive Borrowing denominated in an Alternative Currency, not later than 12:00 noon, New York City time, three Business Days before the date of the proposed Competitive Borrowing and (iii) in the case of a Fixed Rate Borrowing, not later than 1:00 p.m., New York City time, on the proposed date of the Competitive Borrowing; provided that (i) the failure of such Borrower to give such notice shall be deemed to be a rejection of each Competitive Bid, (ii) such 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 such Borrower shall not exceed the aggregate amount of the requested Competitive Borrowing specified in the related Competitive Bid Request, (iv) to the extent necessary to comply with clause (iii) above, such 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, and (v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000; provided further that if a Competitive Loan must be in an amount less than $5,000,000 because of the provisions of clause (iv) above, such Competitive Loan may be for a minimum amount of $1,000,000 or any integral multiple thereof, and 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 $1,000,000 in a manner determined by such Borrower. A notice given by such Borrower pursuant to this paragraph shall be irrevocable.

 

(e) The Administrative Agent or J.P. Morgan Europe Limited, as applicable, 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.

 

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(f) If the Administrative Agent 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.

 

(g) Subject to the terms and conditions set forth herein, from time to time during the Availability Period either Borrower may make Negotiated Rate Loan Requests to any Lender or Lenders and may (but shall not have any obligation to) borrow Negotiated Rate Loans denominated in Dollars or any Alternative Currency; provided that the Total Credit Exposure at any time shall not exceed the total Revolving Commitments. If the applicable Borrower and any Lender agree to the terms of a Negotiated Rate Loan to be made on a Borrowing Date pursuant to a Negotiated Rate Loan Request, such Borrower and such Lender shall promptly notify by telephone the Administrative Agent and, if applicable, J.P. Morgan Europe Limited of the aggregate amount (expressed in Dollars) and Currency of the Negotiated Rate Loan to be made on such Borrowing Date, the Borrower with respect thereto and the respective interest rate, Interest Period and Interest Payment Dates therefor. Each Lender that agrees to make a Negotiated Rate Loan shall, at such time, on such Borrowing Date and at such location as shall be mutually agreed upon between such Borrower and such Lender, make available to such Borrower the amount of the Negotiated Rate Loan to be made by such Lender, in immediately available funds.

 

SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each Revolving Loan denominated in Dollars (other than any Negotiated Rate 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 (or time of such other city designated by the Administrative Agent), to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. Each Lender shall make each Loan (other than any Negotiated Rate Loan) denominated in an Alternative Currency to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., London time (or time of such other city designated by J.P. Morgan Europe Limited), to the account of J.P. Morgan Europe Limited most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent or J.P. Morgan Europe Limited, as applicable, will make such Loans available to the applicable Borrower by promptly crediting, before 2:00 p.m. Local Time, the amounts so received, in like funds, to an account of such Borrower maintained with (i) the Administrative Agent in New York City, in the case of Loans denominated in Dollars, and (ii) J.P. Morgan Europe Limited in London (or such other city as J.P. Morgan Europe Limited may designate in respect of the applicable currency), in the case of Loans denominated in any Alternative Currency, in each case designated by such Borrower in the applicable Borrowing Request or Competitive Bid Request. Each Lender making a Negotiated Rate Loan shall make such Loan on the date, at the time and to the account of the applicable Borrower separately agreed between such Lender and such Borrower.

 

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(b) Unless the Administrative Agent (and, in the case of an Alternative Currency Borrowing, J.P. Morgan Europe Limited) shall have received notice from a Lender prior to the proposed date of any Borrowing (other than any Negotiated Rate Borrowing) that such Lender will not make available to the Administrative Agent or J.P. Morgan Europe Limited, as applicable, such Lender’s share of such Borrowing, the Administrative Agent or J.P. Morgan Europe Limited, as applicable, 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 applicable 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 or J.P. Morgan Europe Limited, as applicable, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent or J.P. Morgan Europe Limited, as applicable, 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 or J.P. Morgan Europe Limited, as applicable, at (i) in the case of such Lender, the greater of (A)(1) the Federal Funds Effective Rate in the case of Loans denominated in Dollars and (2) the rate reasonably determined by J.P. Morgan Europe Limited to be the cost to it of funding such amount, in the case of Loans denominated in any other Currency, and (B) a rate determined by the Administrative Agent or J.P. Morgan Europe Limited, as applicable, in accordance with banking industry rules on interbank compensation or (ii) in the case of such Borrower, the higher of (A) the interest rate applicable to the Loan in respect of which such payment is owed or (B) the Administrative Agent’s or J.P. Morgan Europe Limited’s cost of funds, as applicable. If such Lender pays such amount to the Administrative Agent or J.P. Morgan Europe Limited, as applicable, then such amount shall constitute such Lender’s Loan included in such Borrowing.

 

SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the applicable Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurocurrency Borrowing, may elect Interest Periods therefor, all as provided in this Section, provided that the Currency of a Revolving Borrowing may not be changed in connection with any continuation or conversion of the Interest Period therefor. Alternative Currency Revolving Borrowings may only be Eurocurrency Revolving Borrowings and may not be converted to ABR Revolving Borrowings. The applicable Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Competitive Borrowings or Negotiated Rate Borrowings, which may not be converted or continued.

 

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(b) To make an election pursuant to this Section, the applicable Borrower shall notify the Administrative Agent (and, in the case of an Alternative Currency Borrowing, J.P. Morgan Europe Limited) of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if such Borrower were requesting a Revolving 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 (and, in the case of an Alternative Currency Borrowing, J.P. Morgan Europe Limited) of a written Interest Election Request in a form approved by the Administrative Agent and signed by the applicable Borrower.

 

(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02 :

 

(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 the resulting Borrowing is to be an ABR Borrowing (in the case of Loans denominated in Dollars only) or a Eurocurrency Borrowing; and

 

(iv) if the resulting Borrowing is 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”.

 

If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an Interest Period, then the applicable 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 or J.P. Morgan Europe Limited, as applicable, shall advise each applicable Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(e) If the applicable Borrower fails to deliver a timely Interest Election Request with respect to a Eurocurrency Revolving 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 continued as a Eurocurrency Revolving Borrowing with an Interest Period of one month’s duration. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent or J.P. Morgan Europe Limited, as applicable, at the request of the Required Lenders, so notifies the applicable Borrower, then, so long

 

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as an Event of Default is continuing (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurocurrency Borrowing (except as provided in clause (iii) below), (ii) unless repaid, each Eurocurrency Revolving Borrowing denominated in Dollars shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto and (iii) unless repaid, each Eurocurrency Revolving Borrowing denominated in an Alternative Committed Currency shall be continued as a Eurocurrency Revolving Borrowing with an Interest Period of one month’s duration at the end of the Interest Period applicable thereto.

 

SECTION 2.07. Termination and Reduction of Revolving Commitments. (a) Unless previously terminated, the Revolving Commitments shall terminate on the Termination Date.

 

(b) The Company may at any time terminate, or from time to time reduce, the Revolving Commitments; provided that (i) each reduction of the Revolving Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the Company shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.09 , the Total Credit Exposure would exceed the total Revolving Commitments.

 

(c) The Company shall notify the Administrative Agent of any election to terminate or reduce the Revolving Commitments under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any 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 Revolving 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 Revolving Commitments shall be permanent. Each reduction of the Revolving Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Commitments.

 

SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby unconditionally promises to pay (i) on the Termination Date (or, if the Term-Out Option is exercised, on the Extended Maturity Date) to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Revolving Loan denominated in Dollars owed by such Borrower, (ii) on the Termination Date (or, if the Term-Out Option is exercised, on the Extended Maturity Date) to J.P. Morgan Europe Limited for the account of each Lender the then unpaid principal amount of each Revolving Loan denominated in an Alternative Currency owed by such Borrower, (iii) to the Administrative Agent (or, in the case of an Alternative Currency Borrowing, J.P. Morgan Europe Limited) for the account of each Lender the then unpaid principal amount of each Competitive Loan owed by such Borrower on the last day of the Interest Period applicable to such Loan and (iv) to the applicable Lender the then unpaid principal amount of each Negotiated Rate Loan owed by such Borrower on the earlier of the Termination Date and the last day of the Interest Period applicable to such Loan.

 

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(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(c) The Administrative Agent (and, in the case of an Alternative Currency Borrowing, J.P. Morgan Europe Limited) shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Borrower thereof, the Class, Type and Currency thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent (or, in the case of an Alternative Currency Borrowing, J.P. Morgan Europe Limited) hereunder for the account 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 f