EXECUTION COPY
AT&T CREDIT AGREEMENT
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$500,000,000
364-DAY REVOLVING CREDIT FACILITY AGREEMENT
Dated as of October 5, 2005
among
AT&T CORP.,
THE LENDERS PARTY HERETO,
THE INITIAL ISSUING BANKS NAMED HEREIN,
as Initial Issuing Banks,
JPMORGAN CHASE BANK, N.A. and CITICORP USA, INC.,
as Administrative Agents,
CITICORP USA, INC.,
as Paying Agent,
ABN AMRO
BANK N.V., BANK OF AMERICA, N.A. and ROYAL BANK OF SCOTLAND,
as Co-Syndication Agents, and
BARCLAYS
BANK PLC, CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH,
DEUTSCHE BANK AG
NEW YORK BRANCH, HSBC BANK USA, NATIONAL ASSOCIATION,
MORGAN STANLEY BANK and UBS SECURITIES LLC,
as Co-Documentation Agents,
with
J.P. MORGAN SECURITIES INC., CITIGROUP GLOBAL MARKETS INC.
and BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined
Terms....................................................1
SECTION 1.02. Terms
Generally.................................................16
ARTICLE II
The Credits
SECTION 2.01.
Commitments.....................................................17
SECTION 2.02.
Loans...........................................................18
SECTION 2.03. Issuance of and Drawings and
Reimbursement
Under Letters of
Credit.........................................19
SECTION 2.04. Borrowing
Procedure.............................................21
SECTION 2.05. Conversion and Continuation
of Loans............................21
SECTION 2.06.
Fees............................................................22
SECTION 2.07. Repayment of Loans; Evidence
of Debt............................24
SECTION 2.08. Interest on
Loans...............................................26
SECTION 2.09. Default
Interest................................................27
SECTION 2.10. Alternate Rate of
Interest......................................27
SECTION 2.11. Termination and Reduction of
Commitments........................27
SECTION 2.12.
Prepayment......................................................28
SECTION 2.13. Reserve Requirements; Change
in Circumstances...................29
SECTION 2.14. Change in
Legality..............................................30
SECTION 2.15.
Indemnity.......................................................31
SECTION 2.16. Pro Rata
Treatment..............................................32
SECTION 2.17. Sharing of
Setoffs..............................................32
SECTION 2.18.
Payments........................................................33
SECTION 2.19.
Taxes...........................................................33
SECTION 2.20. Mandatory Assignment;
Commitment Termination....................35
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization;
Powers............................................36
SECTION 3.02.
Authorization...................................................36
SECTION 3.03.
Enforceability..................................................36
SECTION 3.04. Governmental
Approvals..........................................37
SECTION 3.05. Financial
Statements............................................37
SECTION 3.06. Litigation; Compliance with
Laws................................37
SECTION 3.07. Federal Reserve
Regulations.....................................38
SECTION 3.08. Investment Company Act;
Public Utility Holding
Company
Act.....................................................38
SECTION 3.09. Use of
Proceeds.................................................38
SECTION 3.10. No Material
Misstatements.......................................38
ARTICLE IV
Conditions of Effectiveness and of Lending
SECTION 4.01. All
Borrowings..................................................38
SECTION 4.02. Closing
Date....................................................39
ARTICLE V
Covenants
SECTION 5.01.
Existence.......................................................40
SECTION 5.02. Financial Statements,
Reports, Etc..............................40
SECTION 5.03. Maintaining
Records.............................................41
SECTION 5.04. Use of
Proceeds.................................................41
SECTION 5.05. Consolidations, Mergers,
Sales of Assets and
Separation
Transactions.........................................41
SECTION 5.06. Limitations on
Liens............................................42
SECTION 5.07. Limitations on Subsidiary
Indebtedness..........................43
SECTION 5.08. Limitations on Sale and
Leaseback Transactions..................44
SECTION 5.09. Total Debt to EBITDA
Ratio......................................44
SECTION 5.10. EBITDA to Net Interest
Expense Ratio............................44
ARTICLE VI
Events of Default
SECTION 6.01. Events of
Default...............................................44
SECTION 6.02. Actions in Respect of the
Letters of Credit
upon
Default....................................................46
ARTICLE VII
The Agents
SECTION
7.01..................................................................47
ARTICLE VIII
Miscellaneous
SECTION 8.01.
Notices.........................................................50
SECTION 8.02. Survival of
Agreement...........................................51
SECTION 8.03. Binding
Effect..................................................52
SECTION 8.04. Successors and
Assigns..........................................52
SECTION 8.05. Expenses;
Indemnity.............................................55
SECTION 8.06. Applicable
Law..................................................56
SECTION 8.07. Waivers;
Amendment..............................................56
SECTION 8.08. Entire
Agreement................................................57
SECTION 8.09.
Severability....................................................57
SECTION 8.10. Execution in
Counterparts.......................................57
SECTION 8.11.
Headings........................................................57
SECTION 8.12. Jurisdiction,
Etc...............................................57
SECTION 8.13. No Liability of the Issuing
Banks...............................58
SECTION 8.14. USA PATRIOT Act
Notice..........................................58
SECTION 8.15. Waiver of Jury
Trial............................................58
Schedules and Exhibits
Schedule 2.01
Commitments
Schedule 2.01(b)
Existing Letters of Credit
Schedule 5.07
Subsidiary Indebtedness
Exhibit A
Form of Borrowing Request
Exhibit B
Form of Assignment and Acceptance
Exhibit C
Form of Opinion of Counsel for AT&T Corp.
Exhibit D
Form of Note
AT&T CREDIT AGREEMENT
364-DAY
REVOLVING CREDIT FACILITY AGREEMENT (this "Agreement") dated
as of
October 5, 2005, among AT&T CORP., a
New York corporation (the "Borrower"), the
issuing banks ("Initial Issuing Banks") listed on the signature
pages hereof,
the lenders listed in Schedule 2.01 (the
"Banks"), JPMORGAN
CHASE BANK,
N.A.
("JPMCB") and CITICORP USA, INC. ("CUSA"), as administrative agents for the
Lenders (as herein defined) (in such capacity,
the "Administrative Agents"),
CUSA, as paying agent for the Lenders (in
such capacity,
the "Paying
Agent"),
ABN AMRO BANK N.V., BANK OF AMERICA, N.A. and ROYAL BANK OF SCOTLAND, as
Co-Syndication Agents, and BARCLAYS BANK
PLC, CREDIT SUISSE FIRST BOSTON, CAYMAN
ISLANDS BRANCH, DEUTSCHE BANK AG NEW YORK BRANCH, HSBC BANK USA, NATIONAL
ASSOCIATION, MORGAN STANLEY BANK and UBS SECURITIES
LLC, as Co-Documentation
Agents, with J.P. MORGAN SECURITIES INC.,
CITIGROUP GLOBAL MARKETS INC. and BANC
OF AMERICA SECURITIES LLC, as joint lead
arrangers and joint
bookrunners (the
"Joint Lead Arrangers").
PRELIMINARY STATEMENTS
(1) The
Borrower is a party to that certain 364-Day Revolving Credit
Facility Agreement dated as of October 6,
2004 (the "Existing Credit Facility"),
among the Borrower, the lenders and issuing
banks party thereto,
Citibank, N.A.
and JPMCB, as administrative agents, Citibank, N.A., as paying agent, and the
other parties thereto.
(2) The Borrower has requested that the Lenders extend credit to the
Borrower to enable it to borrow on a
revolving credit basis on and after the
date hereof and at any time and from time
to time prior to the Termination Date
(as herein defined) a principal amount not
in excess of $500,000,000 at any time
outstanding (the "Facility"). The proceeds of borrowings under
the Facility are
to be used to refinance the Existing Credit Facility and for other general
corporate purposes of the Borrower, including the repayment of maturing
commercial paper of the Borrower.
The Lenders are
willing to extend such credit
to the Borrower on the terms and subject to
the conditions herein set forth.
NOW,
THEREFORE,
in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree
as
follows:
ARTICLE I
Definitions
SECTION 1.01.
Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified
below:
"ABR Borrowing"
shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall
mean any Loan bearing
interest at a rate
determined
by
reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"Administrative
Agents" shall have the
meaning specified in the recital of
parties to this Agreement.
"Administrative
Fees" shall have the meaning assigned to such term in
Section 2.06(d).
"Affiliate"
shall mean, when used with respect to a specified person,
another person that directly or
indirectly
controls or is
controlled by or is
under common control with the person
specified.
"Agent Parties"
shall mean the Agents and the Joint Lead Arrangers.
"Agents" shall
mean the Administrative Agents and the Paying Agent.
"Alternate
Base Rate" shall mean,
for any day, a rate
per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to
the greater of (a) the
Prime Rate in effect on such day and (b)
the Federal
Funds Effective Rate in
effect on such day plus 1/2 of 1%. For
purposes hereof,
"Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by the
Paying Agent as its prime rate in effect at its principal office in New York
City; each change in the Prime Rate
shall be effective on
the date such change
is publicly announced as effective. For purposes hereof, "Federal Funds
Effective Rate" shall mean, for any day, the weighted
average of the rates
on
overnight Federal funds transactions with members of the
Federal Reserve System
arranged by Federal funds brokers,
as released on the
next succeeding
Business
Day by the Federal Reserve Bank of New
York, or, if such rate is not so released
for any day which is a Business Day, the
arithmetic average
(rounded upwards to
the next 1/100th of 1%), as determined by
the Paying Agent,
of the quotations
for the day of such transactions received
by the Paying Agent from three Federal
funds brokers of recognized standing selected by it. If for any reason the
Paying Agent shall have determined (which determination shall be conclusive
absent manifest error) that it is unable to ascertain the Federal Funds
Effective Rate for any reason, including the inability or failure
of the Paying
Agent to obtain sufficient quotations in accordance with the
terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition
until the circumstances giving rise to such
inability no longer exist. Any change in
the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds
Effective Rate shall
be effective on the
effective date of such change in the Prime
Rate or the Federal Funds Effective
Rate, respectively.
"Applicable
Facility Fee
Percentage" shall mean
on any date, a percentage
per annum determined by reference to the Public Debt
Ratings in effect on such
date as set forth below:
------------------------------------------------------------------
Applicable Facility Fee Percentage Pricing
Grid
------------------------------------------------------------------
Public Debt Ratings
Applicable Facility Fee
Moody's/S&P
Percentage
----------------------------------
-------------------------------
Level 1
Greater than or equal to A2 or A
0.060%
----------------------------------
-------------------------------
Level 2
Greater than or equal to A3 or
0.070%
A- but less than Level 1
----------------------------------
-------------------------------
Level 3
Greater than or equal to Baa1 or
0.080%
BBB+ but less than Level 2
----------------------------------
-------------------------------
Level 4
Greater than or equal to Baa2 or
0.100%
BBB but less than Level 3
----------------------------------
-------------------------------
Level 5
Greater than or equal to Baa3
0.125%
and BBB- but less than Level 4
----------------------------------
-------------------------------
Level 6
Greater than or equal to Ba1 and
0.150%
BB+ but less than Level 5
----------------------------------
-------------------------------
Level 7
Greater than or equal to Ba2 and
0.175%
BB but less than Level 6
----------------------------------
-------------------------------
Level 8
Less than Ba2 or BB
0.200%
----------------------------------
-------------------------------
"Applicable
Margin" shall mean on
any date, (a) with respect to ABR Loans,
0% per annum and (b) with respect to
Eurodollar Loans,
a percentage
per annum
determined by reference to the Public Debt
Ratings in effect on such date as set
forth below in the column corresponding to
such date:
------------------------------------------------------------------
Applicable Margin Pricing Grid
------------------------------------------------------------------
Public Debt Ratings
Applicable Margin
Moody's/S&P
----------------------------------
-------------------------------
Level 1
Greater than or equal to A2 or A
0.190%
----------------------------------
-------------------------------
Level 2
Greater than or equal to A3 or
0.230%
A- but less than Level 1
----------------------------------
-------------------------------
Level 3
Greater than or equal to Baa1 or
0.320%
BBB+ but less than Level 2
----------------------------------
-------------------------------
Level 4
Greater than or equal to Baa2 or
0.400%
BBB but less than Level 3
----------------------------------
-------------------------------
Level 5
Greater than or equal to Baa3
0.500%
and BBB- but less than Level 4
----------------------------------
-------------------------------
Level 6
Greater than or equal to Ba1 and
0.600%
BB+ but less than Level 5
----------------------------------
-------------------------------
Level 7
Greater than or equal to Ba2 and
0.825%
BB but less than Level 6
----------------------------------
-------------------------------
Level 8
Less than Ba2 or BB
1.050%
----------------------------------
-------------------------------
"Assignment and
Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee with the
consent of the Borrower, and accepted
by the Paying Agent in accordance
with Section
8.04(e), substantially in the
form of Exhibit B hereto.
"Attributable
Debt" shall mean, as
of the date of its
determination, the
present value (discounted semiannually at
an interest rate implicit in the terms
of the lease) of the obligation of a lessee
for rental payments
pursuant to any
Sale and Leaseback Transaction (reduced by the amount
of the rental obligations
of any sublessee of all or part of the same
property) during the
remaining term
of such Sale and Leaseback Transaction
(including any period for which the lease
relating thereto has been extended), such
rental payments not to include amounts
payable by the lessee for maintenance and
repairs, insurance, taxes, assessments
and similar charges and for contingent rents (such as those based on
sales);
provided, however, that in the case of any Sale and
Leaseback Transaction
in
which the lease is terminable by the lessee upon the payment of a penalty,
Attributable Debt shall mean the lesser of the
present value of (a)
the rental
payments to be paid under such Sale and
Leaseback Transaction until the first
date (after the date of such determination) upon which it may be so
terminated
plus the then applicable penalty upon such termination and (b) the rental
payments required to be paid during the remaining term of such Sale and
Leaseback Transaction (assuming such
termination provision is not exercised).
"Available
Amount" of any Letter
of Credit means, at any time, the maximum
amount available to be drawn under such
Letter of Credit at such time (assuming
compliance at such time with all conditions
to drawing); provided, however, that
with respect to any requirement of the Borrower to cash collateralize
outstanding Letters of Credit at a
specified time, the "Available Amount" of any
such Letter of Credit shall mean the
maximum amount
available to be drawn under
such Letter of Credit from and after such
time.
"Banks" shall
have the meaning
specified in the recital of parties to this
Agreement.
"Board" shall
mean the Board of Governors of the Federal Reserve System of
the United States.
"Board of
Directors"
shall mean the Board
of Directors of the Borrower or
any duly authorized committee thereof.
"Borrowing"
shall mean a group of
Revolving Credit Loans
of a single Type
made by the Lenders on a single date and as
to which a single Interest Period is
in effect.
"Borrowing
Request" shall mean a request made pursuant
to Section 2.04 in
the form of Exhibit A.
"Business
Day" shall mean any
day (other than a day
which is a
Saturday,
Sunday or legal holiday in the State of New York) on which
banks are open for
business in New York City; provided,
however, that, when used in connection with
a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Change of
Control" shall mean (a) any Person or two or more Persons
acting
in concert shall have acquired beneficial
ownership (within the
meaning of Rule
13d 3 of the SEC under the Exchange Act), directly or indirectly, of Voting
Stock of the Borrower (or other
securities
convertible into such
Voting Stock)
representing more than 50% of the combined
voting power of all
Voting Stock of
the Borrower; or (b) during any period of up to 12 consecutive months,
commencing after the date of this
Agreement, individuals who at the beginning of
such 12 month period were directors of the Borrower
shall cease for any
reason
(other than due to retirement, death or disability) to constitute
a majority of
the Board of Directors (except to the extent that either
(i) individuals
who
were directors of the Borrower at the beginning of such 12 month period
were
replaced by individuals (x) elected by 66 2/3% of the
remaining members of
the
Board of Directors or (y) nominated for election by a
majority of the remaining
members of the Board of Directors and thereafter elected as directors by the
shareholders of the Borrower or (ii) during such
12-month period, the total
number of seats on the Board of Directors
has been increased and such additional
seats are occupied by individuals
(x) elected by 66?% of
the Board of Directors
or (y) nominated for election by such Board
of Directors and thereafter elected
as directors by the Borrower's
shareholders); provided, however, this definition
of Change of Control shall be deemed not to
refer to the announced merger of the
Borrower with a wholly-owned subsidiary of
SBC Communications Inc.
"Closing
Date" shall mean the
first date on which the conditions set forth
in Section 4.02 shall have been satisfied
or waived.
"Code"
shall mean the
Internal Revenue
Code of 1986,
as the same may be
amended from time to time.
"Comcast" means
Comcast Corporation, a Pennsylvania corporation.
"Commitment"
shall mean a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Consolidated"
refers to the
consolidation of
accounts in accordance with
GAAP.
"Consolidated
Net Tangible Assets" shall mean, at any date, as to the
Borrower, the total assets appearing on the
most recently prepared consolidated
balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of
the most recent fiscal quarter of the Borrower for which
such balance sheet is
available, prepared in accordance with
GAAP, less (a) all current liabilities as
shown on such balance sheet and (b)
Intangible Assets.
"Default"
shall mean any event
or condition which
upon notice,
lapse of
time or both would constitute an Event
of
Default.
"dollars" or "$"
shall mean lawful money of the United States of America.
"Equity
Interests"
means, with respect to any Person,
shares of capital
stock of (or other ownership or profit interests in) such Person, warrants,
options or other rights for the purchase or
other acquisition
from such Person
of shares of capital stock of (or other
ownership or profit
interests in) such
Person, securities convertible into or
exchangeable for shares of capital stock
of (or other ownership or profit
interests in) such
Person or warrants,
rights
or options for the purchase or other
acquisition from such Person of such shares
(or such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and
whether or not such shares, warrants,
options, rights or other interests are
authorized or otherwise existing on any
date of determination.
"Eurodollar
Borrowing"
shall mean a
Borrowing comprised of Eurodollar
Loans.
"Eurodollar
Loan" shall mean any
Revolving Credit Loan bearing interest at
a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"Event of
Default" shall have the meaning assigned to such term in
Article
VI.
"Exchange Act"
shall mean the Securities Exchange Act of 1934, as amended.
"Existing
Credit Facility" shall
have the meaning set forth in Preliminary
Statement No. (1).
"Facility" shall
have the meaning set forth in Preliminary Statement (2).
"Facility
Fee" shall
have the meaning assigned to such term in Section
2.06(a).
"Federal
Funds Effective Rate" shall have the meaning
specified in the
definition of "Alternate Base Rate"
herein.
"Fee Letter"
shall mean the Fee Letter dated September 8, 2005, among the
Borrower, JPMCB, Bank of America, N.A. and
the Joint Lead Arrangers.
"Fees" shall
mean the Facility
Fee, the Utilization Fee, the Letter of
Credit Fees and the Administrative
Fees.
"FIN 46" means
Financial Accounting
Standards Board Interpretation No. 46,
Consolidation of Variable Interest Entities
as issued on January 17, 2003.
"Financial
Officer" of any corporation shall mean the chief financial
officer, principal accounting officer,
Treasurer or Assistant Treasurer of such
corporation.
"GAAP" shall
mean generally accepted accounting principles, applied on a
consistent basis.
"Governmental
Authority" shall mean
any Federal, state,
local or foreign
court or governmental agency, authority,
instrumentality or regulatory body.
"Granting
Lender" shall have the meaning specified in Section 8.04(k).
"Indebtedness"
of any Person shall mean all indebtedness representing money
borrowed which is created, assumed,
incurred or guaranteed in any manner by such
Person or for which such Person is
responsible or liable
(whether by
agreement
to purchase indebtedness of, or to supply funds to or invest in, others or
otherwise), excluding Monetized Debt; provided
that for purposes of determining
compliance with Section 5.09, (a)
Indebtedness in the form of guarantees entered
into by the Borrower or its Subsidiaries or
for which the Borrower or any of its
Subsidiaries is responsible or liable shall exclude (i) keep-well and other
similar agreements to advance or supply
funds (x) for the purchase or payment of
any primary obligation of any other Person
(such other Person being the "primary
obligor") or (y) to maintain working capital or equity capital of the primary
obligor or otherwise maintain the net worth or solvency
of the primary
obligor
and (ii) guarantees of obligations for which cross-guarantees
or
cross-indemnifications in favor of the Borrower or such
Subsidiary from Comcast
exist and (b) Indebtedness shall be calculated (i) net of cash and cash
equivalents (including, without limitation,
cash and cash equivalents the use of
which is restricted to secure or repay
Indebtedness, but only to the extent that
the relevant Indebtedness is reflected on the
consolidated balance sheet of the
Borrower and its Subsidiaries and excluding
cash and cash equivalents the use of
which is restricted in accordance with Section 5.06(h) to the payment of
principal of, interest on, or fees in connection with the incurrence of
Monetized Debt), held by the Borrower and its
Consolidated
Subsidiaries on the
date of determination and (ii) in the case of non dollar denominated
Indebtedness, after giving effect to the
mark-to-market
value of any
currency
hedge transactions entered into to protect such Person from
fluctuations
in
exchange rates related to such
Indebtedness.
"Initial Issuing
Banks" has the meaning set forth in the recital of parties
to this Agreement.
"Intangible
Assets" shall mean the value (net of any applicable reserves),
as shown on or reflected in the most recently prepared consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end of the
most recent fiscal quarter of the Borrower
of: (i) all trade names, trademarks,
licenses, patents, copyrights and goodwill;
(ii) organizational costs; and (iii)
deferred charges (other than prepaid items
such as insurance,
taxes, interest,
commissions, rents and similar items and
tangible assets being amortized); but
in no event shall the term "Intangible Assets" include product development
costs.
"Interest
Payment Date" shall
mean, with respect to
any Revolving
Credit
Loan, the last day of the Interest Period
applicable thereto and, in the case of
a Eurodollar Loan with an Interest
Period of more than
three months'
duration,
each day that would have been an Interest
Payment Date for such Revolving Credit
Loan had successive Interest Periods of three months' duration
been applicable
to such Revolving Credit Loan and, in addition,
the date of any
conversion of
such Revolving Credit Loan to a Revolving
Credit Loan of a different Type.
"Interest
Period" shall mean (a) as to any Eurodollar Borrowing, the
period
commencing on the date of such Borrowing or on the last day of
the immediately
preceding Interest Period applicable to
such Borrowing, as the
case may be, and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the
calendar month that is
1, 2, 3 or 6
months thereafter, as the Borrower may elect, and (b)
as to any ABR Borrowing,
the period commencing on the date of such Borrowing or on the last day of
the
immediately preceding Interest Period
applicable to such Borrowing, as the case
may be, and ending on the earliest of (i)
the next succeeding March 31, June 30,
September 30 or December 31, (ii) the
Termination Date, and
(iii) the date such
Borrowing is converted to a Borrowing
of a different
Type in accordance with
Section 2.05 or repaid or prepaid in
accordance
with Section 2.07 or Section
2.12; provided, however, that 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 Eurodollar Loans 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. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest
Period.
"Issuing Bank"
means an Initial
Issuing Bank or any other Lender selected
by the Administrative Agents with the consent of the
Borrower from time to time
to which a portion of the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 8.04 so long
as such assignee
expressly agrees to
perform in accordance with their terms all
of the obligations
that by the terms
of this Agreement are required to be performed by it as an Issuing Bank and
notifies the Paying Agent of its lending
office (which information shall be
recorded by the Paying Agent in the Register), for so long as the Initial
Issuing Bank or assignee, as the case may be, shall have a Letter of Credit
Commitment.
"Joint Lead
Arrangers" shall have
the meaning specified
in the recital of
parties to this Agreement.
"L/C Cash
Collateral
Account" means an
interest bearing cash
collateral
account to be established and maintained by the Paying Agent,
over which the
Paying Agent shall have sole dominion and control, upon terms as may be
reasonably satisfactory to the Paying
Agent.
"L/C Related
Documents" has the meaning specified in Section 2.07(c)(i).
"Lenders"
means the Banks,
each Issuing Bank and
each assignee that shall
become a party hereto pursuant to Section
8.04.
"Letter of
Credit Advance" has the meaning specified in Section 2.03(c).
"Letter of
Credit Agreement" has the meaning specified in Section 2.03(a).
"Letter of
Credit Commitment"
means, with respect to any Initial
Issuing
Bank, the amount set forth opposite such
Initial Issuing Bank's name on Schedule
2.01 hereto or, if such Initial Issuing Bank has entered into one or more
Assignment and Acceptances, the amount set forth for such
Issuing Bank in the
Register maintained by the Paying Agent pursuant to Section 8.04(d) as such
Issuing Bank's "Letter of Credit
Commitment",
as such amount may be
reduced at
or prior to such time pursuant to Section
2.11.
"Letter of
Credit Facility"
means, at any time, an amount equal to the
lesser of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time and (b)
$500,000,000, as such
amount may be reduced at
or prior to such time pursuant to Section
2.11.
"Letter of
Credit Fees" has the meaning specified in Section 2.06(c).
"Letters of
Credit" has the meaning specified in Section 2.01(b).
"LIBO Rate"
shall mean, with
respect to each
Interest Period,
a rate of
interest determined on the basis of at least two
offered rates for deposits in
United States dollars for a period equal to
such Interest Period
commencing on
the first day of such Interest Period
appearing on the
Reuters Screen LIBO Page
as of 11:00 a.m. (London time) on the day
that is two Business Days prior to the
first day of such Interest Period.
If at least two such
offered rates appear on
the Reuters Screen LIBO Page, the rate with
respect to each Interest Period will
be the arithmetic average (rounded upwards to the next 1/16th of 1%)
of such
offered rates. If fewer than two offered
rates appear, "LIBO Rate" in respect of
any Interest Period will be determined on the basis of the rates at which
deposits in United States dollars are offered by the Paying Agent at
approximately 11:00 a.m. (London time) on the day that is two
Business Days
preceding the first day of such Interest Period to prime banks in the London
interbank market for a period equal to such
Interest Period
commencing on the
first day of such Interest Period.
"Lien" shall
mean, 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 lessor under any
conditional sale agreement, capital lease or title retention
agreement relating
to such asset.
"Loans"
means, collectively, the Letter of Credit Advances and the
Revolving Credit Loans.
"Long
Term Debt" shall mean, at any time, any publicly held senior
unsecured debt obligations outstanding at such time with a
maturity more than
one year after the date of any
determination hereunder.
"Long Term
Senior Debt" shall have the meaning specified in the definition
of "Public Debt Ratings".
"Margin
Regulations" shall mean Regulations T, U and X of the Board as
from
time to time in effect, and all official
rulings and interpretations thereunder
or thereof.
"Margin Stock"
shall have the meaning given such term under Regulation U of
the Board.
"Material
Adverse Effect" shall mean a materially
adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Borrower and its Subsidiaries taken as a whole (it being
understood
that no
event, condition or result reflected in reports or financial
statements filed
with the SEC on or prior to August 5, 2005, shall be deemed to give rise to
a
Material Adverse Effect).
"Monetized Debt"
shall mean Indebtedness of the Borrower or a non-operating
Subsidiary of the Borrower secured by capital stock of
Persons not directly or
indirectly controlled by the Borrower
(collectively, the
"Available Stock"), so
long as the Borrower or such non-operating Subsidiary has at all times
sufficient Available Stock so that upon maturity or
exchange prior to maturity
it may satisfy substantially all of the obligations arising under such
Indebtedness (other than obligations to pay cash coupon amounts on such
Indebtedness) solely by the delivery of
Available Stock.
"Moody's"
shall mean
Moody's Investors Service, Inc. or any successor
rating agency.
"Net Interest
Expense" shall mean,
for any period,
Consolidated
interest
expense as recorded according to GAAP, less Consolidated interest income as
recorded according to GAAP.
"Notice of
Issuance" has the meaning specified in Section 2.03(a).
"Operational
EBITDA" shall mean, for any period, operating income (or
operating loss) of the Borrower and its
Consolidated Subsidiaries, plus, to the
extent deducted in determining such operating income (or operating loss), the
sum of (a) depreciation expense, (b)
amortization expense, (c) restructuring and
other charges and (d) asset impairment charges. If the Borrower acquires
(whether by purchase, merger, consolidation or otherwise) all or
substantially
all of the assets or property of any other
Person, or engages in
any asset sale
permitted by Section 5.05, during any period in respect of
which Operational
EBITDA is to be determined hereunder, such
Operational EBITDA will be determined
on a pro forma basis as if such
acquisition
or such asset sale
occurred on the
first day of the relevant period if the
Operational EBITDA
attributable to such
acquisition or assets sold represents more than 10% of the Borrower's
Operational EBITDA calculated immediately prior to giving effect to such
acquisition or such asset sale.
"Optional
Termination Date" has the meaning specified in Section 2.11(d).
"Paying
Agent" shall have the
meaning specified in
the recital of parties
to this Agreement.
"Permitted
Encumbrances" shall mean:
(a) Liens imposed by law for taxes that (x) are not yet due or (y)
are
being
contested in good
faith by appropriate
proceedings and with respect
to which
adequate reserves have been set aside in accordance with GAAP;
(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 (x) are not overdue by more than 90
days or (y) are
being contested in good faith by appropriate proceedings;
(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,
joint
build contracts,
leases, public, quasi-public and statutory
obligations,
surety and
appeal bonds,
performance bonds and other obligations of a like
nature,
and governmental (foreign, Federal, state or municipal) liens
arising out of
governmental
franchise or similar
agreements or
contracts
for the
purchase of products, in each case in the ordinary course of
business;
(e) attachment,
judgment or similar
liens in respect of
judgments,
unless such
liens relate to one or more judgments for the payment of
money
in an aggregate
amount exceeding
$250,000,000 and (i)
such judgments have
remained
undischarged
for a period of 60
consecutive days or
more during
which
execution has not been effectively stayed or (ii) action has been
legally
taken by a judgment
creditor to attach or
levy upon assets of the
Borrower or any
Restricted Subsidiary to enforce any such judgment;
(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 the
Borrower or any
Restricted
Subsidiary;
(g) leases (other
than leases with respect to Sale and Leaseback
Transactions),
licenses
and indefeasible rights of use or similar
arrangements
relating to the shared
use of facilities
entered into in the
ordinary course
of business and consistent with past practices;
(h) landlords' liens
under leases of property to which the Borrower or
a Restricted
Subsidiary is a party; and
(i) other incidental encumbrances which do not secure Indebtedness
and
do not in the
aggregate materially
detract from the value of the assets of
the Borrower and
its Restricted
Subsidiaries or materially impair the use
thereof in the
operation of it business.
"Permitted
Receivables
Financing"
shall mean any
financing pursuant to
which the Borrower or any Restricted Subsidiary of the Borrower may sell,
convey, or otherwise transfer to any Person,
or grant a security
interest in,
any accounts receivable (and related assets) of
the Borrower or such Restricted
Subsidiary, provided that such financing shall
be on customary market terms and
shall be with limited or no recourse to the
Borrower and its Subsidiaries except
to the extent customary for such
transactions.
"Person" or
"person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or
any
agency or political subdivision
thereof.
"Principal
Property"
of the Borrower shall mean any land, land
improvements, building and associated factory,
laboratory office and
switching
equipment (excluding all products
marketed by the
Borrower or any
Subsidiary)
constituting a manufacturing facility,
development facility, warehouse facility,
service facility, office facility or operating
facility (including
any portion
thereof), which facility (a) is owned by or leased to the Borrower or any
Restricted Subsidiary, (b) is located within the United States and (c)
has an
acquisition cost plus capitalized improvements in excess of 0.25% of
Consolidated Net Tangible Assets of the Borrower as of the date of such
determination, other than (i) any such facility,
or portion thereof,
which has
been financed by obligations issued by or
on behalf of a State, a Territory or a
possession of the United States, or any political subdivision of any of the
foregoing, or the District of Columbia, the
interest on which is excludable from
gross income of the holders thereof (other than a "substantial user" of such
facility or a "related person" as those terms are used in Section
103 of the
Code) pursuant to the provisions of Section 103 of the Code (or any
similar
provisions hereafter enacted) as in effect at the time of issuance of such
obligations, (ii) any such facility which the
Borrower's Board of Directors may
by resolution declare is not of material
importance
to the Borrower and the
Restricted Subsidiaries taken as a whole
and (iii) any such facility, or portion
thereof, owned or leased jointly or in common with one or
more persons
other
than the Borrower and any Subsidiary of the Borrower and in which the
interest
of the Borrower and all Subsidiaries of the
Borrower does not exceed 50%.
"Pro Rata Share"
of any amount means, (i) with respect to any Lender at any
time prior to the termination of the Total
Revolving Credit Commitments pursuant
to the terms of this Agreement,
the product of such
amount times a fraction the
numerator of which is the amount of such
Lender's Revolving
Credit Commitment
(including such Lender's participations in Letters of Credit under Section
2.03(b)) at such time and the denominator of which is the amount of the
Total
Revolving Credit Commitments (including participations in Letters of Credit
under Section 2.03(b)) at such time, and (ii)
with respect to any Lender at any
time after the termination of the Total
Revolving Credit Commitments pursuant to
the terms of this Agreement, the product of such amount
times a fraction
the
numerator of which is the sum of (A) the
principal amount of the Loans then
outstanding held by such Lender and (B) the
aggregate amount of such Lender's
participations in Letters of Credit under
Section 2.03(b), in each case, at such
time after giving effect to each
effective Assignment and Acceptance to which
such Lender is a party) (or, if no Loans and no Letters of Credit are
outstanding at such time, such Lender's
Revolving Credit Commitment as in effect
immediately prior to such termination) and the denominator
of which is the sum
of (A) the aggregate principal amount of the Loans then
outstanding held by all
Lenders and (B) the aggregate Available
Amount of all Letters of Credit, in each
case, at such time (or, if no Loans and no
Letters of Credit are
outstanding at
such time, the Total Revolving Credit
Commitments as in effect immediately prior
to such termination).
"Public Debt
Ratings" means, as of any date, the lowest rating that has
been most recently announced by either S&P or
Moody's, as the case
may be, for
any class of non-credit enhanced long-term
senior unsecured debt (the "Long-Term
Senior Debt") and commercial paper (the "Short-Term Debt") issued by the
Borrower; provided that if the Borrower has
caused the credit facility evidenced
by this Agreement to be rated by S&P and
Moody's, then such
ratings shall be
used in lieu of the ratings applicable to Long-Term
Senior Debt and
Short-Term
Debt of the Borrower for all purposes
hereunder. For
purposes of the foregoing,
with respect to the Borrower (a) if S&P
or Moody's shall have in effect a rating
for only one but not both of the Long-Term
Senior Debt or the
Short-Term Debt,
the Applicable Margin and the Applicable
Facility Fee
Percentage shall be
the
lowest level that may be determined by
reference to the available rating; (b) if
only one of S&P and Moody's shall have in effect Public Debt Ratings, the
Applicable Margin and the Applicable
Facility Fee Percentage shall be determined
by reference to the available rating;
(c) if neither S&P
nor Moody's shall have
in effect Public Debt Ratings for either of the
Long-Term Senior Debt or the
Short-Term Debt, the Applicable Margin and the Applicable Facility Fee
Percentage will be set in accordance with Level 8 under the definition of
"Applicable Margin" or "Applicable Facility
Fee Percentage", as the case may be;
(d) if any rating established by S&P or Moody's shall be
changed, such
change
shall be effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or Moody's
shall change the basis on which ratings are
established,
each reference to
the
Public Debt Ratings announced by S&P or
Moody's, as the case may be, shall refer
to the then equivalent rating by S&P or
Moody's, as the case may be.
"Register" shall
have the meaning given such term in Section 8.04(d).
"Regulation D"
shall mean Regulation D of the Board as from time to time in
effect and all official rulings and
interpretations thereunder or thereof.
"Required
Lenders" shall mean, at any time, Lenders having at least a
majority in interest of the Total Revolving
Credit Commitments or,
if the Total
Revolving Credit Commitments shall have been terminated, or for purposes of
acceleration pursuant to clause (ii) of Article
VI, Lenders owed or
holding at
least a majority in interest of the sum of (x) the Loans
outstanding
at such
time plus (y) the aggregate Available Amount of all Letters of Credit
outstanding at such time.
"Responsible
Officer" of any
corporation shall mean
any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations
of such
corporation in respect of this
Agreement.
"Restricted
Subsidiary"
shall mean (a) any
Subsidiary of the Borrower (i)
which has substantially all of its property
within the United States of America,
(ii) which owns or is a lessee of any
Principal Property, and (iii) in which the
investment of the Borrower and all other
Subsidiaries
of the Borrower
exceeds
0.25% of Consolidated Net Tangible Assets
of the Borrower as of the date of such
determination; provided, however, that the term "Restricted
Subsidiary" shall
not include (A) any Subsidiary of the Borrower (x) primarily engaged in the
business of purchasing, holding, collecting, servicing or otherwise dealing
in
and with installment sales contracts, leases, trust receipts, mortgages,
commercial paper or other financing
instruments and any collateral or agreements
relating thereto, including in the business, individually or through
partnerships, of financing (whether through long- or short-term borrowings,
pledges, discounts or otherwise) the sales,
leasing or other
operations of the
Borrower and the Subsidiaries or any of them, or
(y) engaged in the business of
financing the assets and operations of third parties; provided that,
notwithstanding (x) and (y) above, such Subsidiary of the Borrower shall
be a
Restricted Subsidiary if it owns,
leases or operates any
property which
would
qualify as Principal Property except as incidental to
such financing
business;
or (B) any Subsidiary of the Borrower
acquired or organized after April 1, 1986,
for the purpose of acquiring the stock or
business or assets of any person other
than the Borrower or any Restricted Subsidiary, whether by merger,
consolidation, acquisition of stock or assets or
similar transaction
analogous
in purpose or effect, so long as such Subsidiary of the Borrower does not
acquire by merger, consolidation, acquisition of stock or assets or similar
transactions analogous in purpose or effect all
or any substantial
part of the
business or assets of the Borrower or any
Restricted Subsidiary of the Borrower;
and (b) any other Subsidiary of the Borrower
which is hereafter
designated by
the Board of Directors of the Borrower as a Restricted Subsidiary of the
Borrower.
"Revolving
Credit Commitment"
shall mean, with respect to each Lender, the
Revolving Credit Commitment of such Lender as set
forth on Schedule 2.01 hereto
or in any Assignment and Acceptance to
which such Lender is a party.
"Revolving
Credit Loans" shall mean the revolving loans made by the
Lenders
to the Borrower pursuant to Section 2.04. Each
Revolving Credit Loan shall be a
Eurodollar Loan or an ABR Loan.
"Sale and
Leaseback Transaction" shall mean any arrangement with any
person
providing for the leasing by the Borrower or
any Restricted
Subsidiary of any
Principal Property (whether such Principal
Property is now owned
or hereafter
acquired) that has been or is to be sold or
transferred by the Borrower or such
Restricted Subsidiary to such person, other than (a) temporary leases for a
term, including renewals at the option of the
lessee, of not more than three
years; (b) leases between the Borrower and a
Restricted Subsidiary
or between
Restricted Subsidiaries; and (c) leases of Principal
Property executed by
the
time of, or within 180 days after the
latest of, the acquisition, the completion
of construction or improvement (including any improvements on property which
will result in such property becoming
Principal Property),
or the
commencement
of commercial operation of such Principal
Property.
"SEC" shall mean
the Securities and Exchange Commission.
"Separation
Transaction"
shall mean any
disposition,
spin-off or other
similar transaction (whether pursuant to a single transaction or a series of
related transactions) of any division or
line of business of the Borrower or any
of its Subsidiaries as a result of which, after giving effect thereto, such
division or line of business is no longer a
part of or conducted by the Borrower
or any of its Subsidiaries. For the avoidance of doubt,
it is understood
that
there are two lines of business of the
Borrower, comprising divisions engaged in
activities related to consumer services, on
the one hand, and business services,
on the other.
"S&P"
means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or any
successor rating agency.
"Short-Term
Debt" shall have the meaning assigned to such term in the
definition of "Public Debt Ratings".
"SPC" shall have
the meaning specified in Section 8.04(j).
"Subsidiary"
shall mean, at any
time, any Person, a majority of the Voting
Equity Interests of which is at such time
owned or controlled, directly or
indirectly, by the Borrower or by one or more
Subsidiaries of the Borrower. As
used herein, Voting Equity Interests are Equity
Interests entitled to vote in
the election of directors (or comparable
management positions).
"Swap
Agreement"
shall mean any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or
securities, or economic, financial or
pricing indices or measures of economic,
financial or pricing
risk or value or
any similar transaction or any combination
of these transactions entered into in
the ordinary course of business and not for
speculative purposes.
"Termination
Date" means the earlier of (a) October 4, 2006 and (b) the
date of termination in whole of the
Commitments
pursuant to Section
2.11(b) or
(d) or 6.01.
"Total Revolving
Credit Commitment"
shall mean, at any time, the aggregate
amount of Revolving Credit Commitments of
all the Lenders, as in
effect at such
time.
"Transactions"
shall have the meaning assigned to such term in Section
3.02.
"Type"
when used in respect
of any Revolving
Credit Loan or Borrowing,
shall refer to the Rate by reference to
which interest on such Revolving Credit
Loan or on the Revolving Credit Loans comprising such Borrowing is
determined.
For purposes hereof, "Rate" shall include the LIBO Rate
and the Alternate Base
Rate.
"Unused
Commitment"
means, with respect to each Lender at any
time, (a)
such Lender's Revolving Credit Commitment at
such time minus (b) the sum of (i)
the aggregate principal amount of all Revolving Credit Loans and Letter of
Credit Advances made by such Lender (in its capacity as a lender and not as
Issuing Bank) and outstanding at such time, plus (ii) such Lender's Pro
Rata
Share of (A) the aggregate Available Amount of all the Letters of Credit
outstanding at such time and (B) the
aggregate principal amount of all Letter of
Credit Advances made by each Issuing Bank
pursuant to Section 2.03(c) that have
not been ratably funded by such Lender and
are outstanding at such time.
"Utilization
Fee" shall have the
meaning assigned to
such term in Section
2.06(b).
"Voting
Stock" means shares of
capital stock issued by a corporation, or
equivalent Equity Interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies,
entitled to vote for
the election
of directors (or persons performing
similar functions) of
such Person, even
if
the right so to vote has been suspended by
the happening of such a contingency.
SECTION 1.02.
Terms Generally. The
definitions in Section 1.01 shall apply
equally to both 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". All references
herein to Articles, Sections, Exhibits and Schedules
shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. 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 Borrower notifies the Paying Agent that the Borrower
wishes to
amend any covenant in Article V to
eliminate the effect of any change in GAAP on
the operation of such covenant (or if the Paying Agent
notifies the
Borrower
that the Required Lenders wish to amend Article V
for such purpose),
then the
Borrower's compliance with such covenant shall be determined on the basis
of
GAAP in effect immediately before the relevant
change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a
manner
satisfactory to the Borrower and the
Required Lenders.
ARTICLE II
The Credits
SECTION 2.01.
Commitments. (a) Revolving Credit Loans. Subject to the terms
and conditions and relying upon the
representations
and warranties
herein set
forth, each Lender agrees, severally and not jointly,
to make Revolving
Credit
Loans to the Borrower, at any time and from time to time
on and after the date
hereof and until the earlier of the
Termination Date and
the termination of the
Revolving Credit Commitment of such Lender,
in an aggregate
principal amount at
any time outstanding not to exceed such
Lender's Unused Commitment at such time.
Each Lender's Revolving Credit Commitment is set forth opposite its name in
Schedule 2.01. Such Revolving Credit Commitments may be terminated or
reduced
from time to time pursuant to Section
2.11. Within the limits of each
Lender's
Unused Commitment, the Borrower may borrow,
pay or prepay and reborrow Revolving
Credit Loans hereunder, on and after the Closing Date and prior to the
Termination Date, subject to the terms, conditions and limitations set forth
herein.
(b) Letters of Credit.
Each Issuing
Bank agrees, on the terms and
conditions
hereinafter
set forth,
to issue letters of credit (each, a
"Letter
of Credit") for the account of the Borrower from time to time
during
the period from the Closing Date until five days before the
Termination
Date in an aggregate
Available Amount (i) for all Letters of
Credit
issued by each Issuing
Bank not to exceed at any time the lesser of
(x) the Letter
of Credit Facility at
such time and (y) such Issuing Bank's
Letter of Credit
Commitment
at such time and (ii)
for each such Letter of
Credit not to
exceed an amount equal to the aggregate Unused Commitments of
the Lenders at
such time. No Letter of Credit shall have an expiration date
(including
all rights of the Borrower or the beneficiary to require
renewal)
later than the date
that is 5 days before the Termination Date;
provided
that any Letter of
Credit which has an
expiration
date that is
later
than 5 days
before the Termination Date or that provides for
automatic
one-year extension(s)
of such expiration date shall be deemed to
comply with the
foregoing requirement if (i) the Borrower is not in default
of the
provisions
of Section
2.07(d), or (ii) in the case of Letters
of
Credit that
provide for automatic one-year extensions, the Issuing Bank has
the
unconditional right to prevent any such automatic extension from
taking
place.
Within the limits
referred to above,
the Borrower may
request the
issuance
of Letters of Credit under this Section 2.01(b), repay any
advances
resulting from drawings thereunder pursuant to Section 2.03(c)
and
request the
issuance of
additional
Letters of Credit
under this Section
2.01(b).
Each letter of credit
issued prior to the Closing Date and listed
on Schedule
2.01(b) shall be deemed to constitute a Letter of Credit issued
hereunder,
and each Lender that is an issuer of such a Letter of
Credit
shall,
for purposes of
Section 2.03,
be deemed to be an
Issuing Bank for
each such Letter
of Credit, provided than any renewal or replacement of any
such Letter of
Credit shall be issued
by an Issuing Bank
pursuant to the
terms of this
Agreement. The terms
"issue", "issued",
"issuance" and all
similar
terms, when applied to a Letter of
Credit, shall include any
renewal,
extension or amendment thereof.
SECTION 2.02.
Loans. (a) Each Revolving Credit Loan
shall be made as part
of a Borrowing consisting of Revolving Credit
Loans made by the Lenders ratably
in accordance with their respective Revolving Credit Commitments; provided,
however, that the failure of any Lender to
make any Revolving Credit Loan shall
not in itself relieve any other Lender of its
obligation to lend
hereunder (it
being understood, however, that no Lender shall be
responsible for the failure
of any other Lender to make any Revolving Credit Loan required to be made by
such other Lender). The Revolving Credit
Loans comprising any Borrowing shall be
in an aggregate principal amount which is
an integral multiple of $1,000,000 and
not less than $10,000,000 (or an aggregate principal amount equal to the
remaining balance of the available Total
Revolving Credit Commitments).
(b) Each Borrowing shall be comprised entirely of Eurodollar Loans
or
ABR Loans,
as the Borrower may request pursuant to Section 2.04. Each
Lender may at
its option make any
Eurodollar Loan by
causing any domestic
or foreign
branch or Affiliate of such Lender to make such Eurodollar
Loan;
provided
that any exercise of
such option shall not affect the obligation
of the Borrower
to repay such
Eurodollar Loan in accordance with the terms
of this
Agreement.
Borrowings of more
than one Type may be outstanding at
the same time;
provided, however,
that the Borrower
shall not be entitled
to request any
Borrowing which,
if made, would result in an aggregate
of
more than 25
separate Borrowings comprised of Eurodollar Loans being
outstanding
hereunder at any one time. For purposes of the foregoing,
Revolving Credit
Loans having different
Interest Periods, regardless of
whether
they commence on the same date, shall be considered separate
Revolving Credit
Loans.
(c) Subject to Section
2.05, each Lender
shall make each
Revolving
Credit Loan to
be made by it hereunder on the proposed date thereof by wire
transfer of
immediately
available funds to the Paying Agent in New
York,
New York,
not later than 12:00
noon, New York City time, and the Paying
Agent
shall by 3:00
p.m., New York City time, credit the amounts so
received to the
general deposit
account of the
Borrower with the Paying
Agent or, if a
Borrowing shall not occur on such date because any condition
precedent
herein specified shall not have been met,
return the amounts so
received to the
respective Lenders. Revolving Credit Loans shall be made by
the Lenders pro
rata in accordance
with Section
2.16. Unless the Paying
Agent shall have
received notice from a Lender prior to the date (or in the
case of ABR
Borrowings, prior to
12:00 noon New York City time on the date
of such
Borrowing)
of any Borrowing that such Lender will not make
available to the
Paying Agent such Lender's portion of such Borrowing, the
Paying Agent may
assume that such Lender has made such portion available to
the Paying
Agent on the date of
such Borrowing
in accordance with this
paragraph (c)
and the Paying Agent may, in reliance upon such assumption,
make available
to the Borrower on such date a corresponding amount. If and
to the extent
that such Lender shall not have made such portion available
to the Paying
Agent, such Lender and the Borrower severally agree to repay
to the Paying
Agent forthwith on demand such corresponding amount together
with
interest thereon, for each day from the date
such amount is made
available
to the Borrower until the date such amount is repaid to the
Paying
Agent at (i) in the case of the Borrower, the interest rate
applicable
at the time to the Revolving Credit Loans comprising such
Borrowing and
(ii) in the case of such Lender, the Federal Funds Effective
Rate.
If such Lender
shall repay to the
Paying Agent such
corresponding
amount, such
amount shall constitute such Lender's Revolving Credit Loan as
part of such
Borrowing for purposes of this Agreement.
SECTION 2.03.
Issuance of and
Drawings and Reimbursement Under Letters of
Credit (a) Request for Issuance.
(i) Each Letter of
Credit shall be issued upon
notice by telephone, given not later than
10:30 a.m., New York City time, on the
second Business Day prior to the date of
the proposed issuance of such Letter of
Credit (or on such shorter notice as the
applicable Issuing
Bank may agree), by
the Borrower to any Issuing
Bank, and such Issuing Bank shall give
the Paying
Agent prompt notice thereof by telex,
telecopier or cable.
Each such telephonic
notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be
irrevocable, and shall be confirmed
promptly by hand delivery or telecopy to the
applicable Issuing Bank of a written
Notice of Issuance in
the form of Exhibit
A-2, specifying therein the requested
(A) date of such issuance (which shall be
a Business Day), (B) initial Available Amount of such Letter of Credit,
(C)
expiration date of such Letter of Credit
(which shall not be
later than 5 days
before the Termination Date or, in the case of any
renewal or extension,
one
year after such renewal or extension; provided that any Letter of Credit
which
has an expiration date that is later than 5
days before the Termination Date or
that provides for automatic one-year
extension(s) of such
expiration date shall
be deemed to comply with the foregoing
requirement if (i) the Borrower is not in
default of the provisions of Section
2.07(d), or (ii) in
the case of Letters of
Credit that provide for automatic one-year
extensions, the
Issuing Bank has the
unconditional right to prevent any such
automatic extension from taking place
and such Issuing Bank agrees to exercise such right to prevent any such
automatic extension for each Letter of
Credit outstanding after the Termination
Date), (D) name and address of the
beneficiary of such Letter of Credit and (E)
form of such Letter of Credit (which may be the applicable Issuing Bank's
standard form), and shall be accompanied by such customary and reasonable
application and agreement for letter of credit
as such Issuing Bank may specify
to the Borrower for use in connection
with such requested Letter of Credit (a
"Letter of Credit Agreement") and such other information as may be
reasonably
necessary to prepare, amend or renew such Letter of
Credit. If the
requested
form of such Letter of Credit is in such
Issuing Bank's standard form or is
otherwise acceptable to such Issuing Bank in
its sole discretion,
such Issuing
Bank will, upon fulfillment of the applicable
conditions set forth
in Article
IV, make such Letter of Credit available to the Borrower at its
office referred
to in Section 8.01 or as otherwise
agreed with the
Borrower in connection
with
such issuance. In the event and to the extent
that the provisions of any Letter
of Credit Agreement shall conflict with this
Agreement, the
provisions of this
Agreement shall govern.
(b) Participations.
By the issuance of a Letter of Credit (or an
amendment to a
Letter of Credit
increasing the amount thereof) and, in the
case of the
Letters of Credit listed on Schedule 2.01(b) hereto, on and as
of the Closing
Date, in each case without any further action on the part of
the applicable
Issuing Bank or the
Lenders, the
applicable
Issuing Bank
hereby
grants to each Lender,
and each Lender
hereby acquires from such
Issuing
Bank, a participation in such Letter of Credit equal to such
Lender's Pro
Rata Share of the aggregate amount available to be drawn under
such
Letter of Credit. The Borrower hereby agrees to each such
participation.
In consideration and
in furtherance of the foregoing, each
Lender hereby
absolutely and
unconditionally
agrees to pay to the
Paying
Agent,
for the account of
such Issuing Bank,
such Lender's Pro Rata Share
of each
Letter of Credit Advance funded by such Issuing Bank and not
reimbursed
by the Borrower on the date made, or of any reimbursement
payment required
to be refunded to the Borrower for any reason. Each Lender
acknowledges
and agrees
that its obligation to acquire participations
pursuant to this
paragraph in respect
of Letters of Credit is absolute and
unconditional
and shall not be
affected by any
circumstance
whatsoever,
including
any amendment, renewal or extension of any Letter
of Credit or
the occurrence and continuance of a Default or Event of Default or
reduction or
termination of the Revolving Credit Commitments, and that each
such payment
shall be made without any offset, abatement, withholding or
reduction
whatsoever.
The obligations of the Lenders under this
Section
2.03(b)
with respect to Letters of Credit
that have an
expiration
date
later than the
Termination
Date and have not been
drawn in full as of the
Termination
Date shall terminate as of the end of business on the
Termination
Date and, thereafter, the obligations under such Letters of
Credit
outstanding after the
Termination Date shall be the responsibility
of the Issuing
Bank that issued such Letter of Credit.
(c) Drawing and
Reimbursement.
The payment by an
Issuing Bank of a
draft drawn
under any Letter of Credit shall constitute for all purposes of
this
Agreement the making by such Issuing
Bank of an advance
under this
Agreement (a
"Letter of Credit
Advance"), which shall
be an ABR Loan, in
the amount of
such draft. Each
Issuing Bank shall give prompt notice (and
such Issuing
Bank will use its commercially reasonable efforts to deliver
such notice
within one Business
Day) to the Borrower
and the Paying Agent
of each drawing
under any Letter of Credit issued by it, and such notice to
the Borrower shall constitute a demand for repayment of such Letter of
Credit
Advance for all
purposes hereunder.
Upon written demand by such
Issuing Bank,
with a copy of such
demand to the Paying Agent, each Lender
shall
pay to the
Paying Agent such Lender's Pro Rata Share of such
outstanding
Letter of Credit
Advance, by making
available for the account
of its
applicable
lending office to the Paying Agent for the account of
such Issuing
Bank, by wire transfer to the Paying Agent, in same day funds,
an amount equal
to the portion of the outstanding principal amount of such
Letter
of Credit Advance to be funded by such Lender. Promptly after
receipt thereof,
the Paying Agent shall transfer such funds to such Issuing
Bank.
Each Lender agrees to fund its Pro Rata Share of an outstanding
Letter of Credit
Advance on (i) the
Business Day on which demand therefor
is made by such
Issuing Bank, provided
that notice of such demand is given
not later than
10:30 a.m., New York
City time, on such
Business Day, or
(ii) the first
Business Day next
succeeding such demand
if notice of such
demand is given
after such time. If and to the extent that any Lender shall
not have so made
the amount of such Letter of Credit Advance available to
the Paying
Agent, such Lender
agrees to pay to the Paying Agent forthwith
on demand such
amount together with interest thereon, for each day from the
date of demand
by any such Issuing
Bank until the date such amount is paid
to the Paying
Agent, at the Federal Funds Effective Rate for its account or
the account of
such Issuing Bank, as
applicable. If such
Lender shall pay
to the Paying
Agent such amount for the account of any such Issuing Bank on
any Business Day, such amount so paid in respect of principal shall
constitute a
Letter of Credit
Advance made by such Lender on such Business
Day for purposes
of this Agreement, and the outstanding principal amount of
the Letter of
Credit Advance made by
such Issuing Bank shall be reduced by
such amount on
such Business Day.
(d) Letter of Credit
Reports. Each Issuing
Bank shall furnish (i) to
the Paying Agent
on the first Business
Day of each month a written report
summarizing
issuance and expiration dates of Letters of Credit issued
during the
preceding month and drawings during such month under all
Letters
of Credit
issued by it and (ii)
to the Paying
Agent (with a copy to the
Borrower)
on the first
Business Day of each calendar quarter a written
report setting
forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by such
Issuing Bank.
The Paying Agent will furnish any report received by it under
this Section
2.03(d) to any Lender upon such Lender's reasonable request.
(e) Failure to Make
Advances. The failure of any Lender to make
the
Letter of Credit
Advance to be made by
it on the date specified in Section
2.03(c) shall
not relieve any other Lender of its obligation hereunder to
make its
Letter of Credit
Advance on such
date, but no Lender shall be
responsible
for the failure of any other Lender to make the Letter of
Credit Advance
to be made by such other Lender on such date.
SECTION 2.04.
Borrowing Procedure. In order to request a Borrowing,
the
Borrower shall notify the Paying Agent of
such request by telephone (a) in the
case of a Eurodollar Borrowing, not later than 10:30 a.m., New
York City time,
three Business Days before a proposed
Borrowing and (b) in
the case of an ABR
Borrowing, not later than 10:30 a.m., New York City time, on the day of a
proposed Borrowing. Each such telephonic borrowing
request shall be irrevocable
and shall be confirmed promptly by hand
delivery or telecopy to the Paying Agent
of a written Borrowing Request in the form of Exhibit A.
Each such
telephonic
and written Borrowing Request shall specify
(i) whether the Borrowing then being
requested is to be a Eurodollar Borrowing
or an ABR Borrowing;
(ii) the date of
such Borrowing (which shall be a Business
Day) and the amount thereof; and (iii)
if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto, which shall not end after the
Termination Date. If no election
as to the Type of Borrowing is specified in
any such notice, then
the requested
Borrowing shall be an ABR Borrowing.
If no Interest Period
with respect to any
Eurodollar Borrowing is specified in any
such notice, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration.
Notwithstanding any other provision of this Agreement to the contrary, the
Borrower shall not be entitled to request
any Borrowing if the Interest Period
requested with respect to such Borrowing
would end after the
Termination Date.
The Paying Agent shall promptly
advise the Lenders of
any notice given pursuant
to this Section 2.04 and of each Lender's
portion of the requested Borrowing.
SECTION 2.05.
Conversion and Continuation of Loans. The Borrower shall have
the right at any time upon prior notice by
telephone to the Paying Agent (i) not
later than 10:30 a.m., New York City time, on the day of the conversion, to
convert all or any part of any Eurodollar
Borrowing into an ABR Borrowing, (ii)
not later than 10:30 a.m., New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar
Borrowing or to continue any Eurodollar
Borrowing as a
Eurodollar Borrowing for
an additional Interest Period and (iii) not
later than 10:30 a.m., New York City
time, three Business Days prior to
conversion, to convert
the Interest Period,
with respect to any Eurodollar Borrowing to
another permissible Interest Period,
subject in each case to the following:
(a) if less than all the outstanding principal amount of any
Borrowing
shall be
converted or
continued, the
aggregate principal amount of the
Borrowing
converted
or continued shall be an integral multiple of
$1,000,000 and
not less than $10,000,000;
(b) accrued
interest on a Borrowing (or portion thereof) being
converted shall
be paid by the Borrower at the time of conversion;
(c) if any Eurodollar
Borrowing is converted at a time other than the
end of the
Interest Period applicable thereto, the Borrower shall pay,
upon
demand, any
amounts due to the Lenders pursuant to Section 2.15;
(d) any portion of a
Borrowing maturing or required to be repaid
in
less than one
month may not be converted into or continued as a
Eurodollar
Borrowing;
(e) any portion of a Eurodollar Borrowing which cannot be continued
as
a Eurodollar
Borrowing by reason of clause (d) above shall be automatically
converted at the
end of the Interest
Period in effect for such Eurodollar
Borrowing into
an ABR Borrowing; and
(f) no Interest Period
may be selected for any Eurodollar Borrowing
that would end
later than the Termination Date.
Each such
telephonic notice shall be confirmed promptly by hand delivery
or
telecopy to the Paying Agent of a written notice. Each such telephonic and
written notice of the Borrower pursuant to this Section 2.05 shall be
irrevocable and shall refer to this
Agreement and specify
(i) the identity and
amount of the Borrowing that the Borrower
requests to be converted or continued,
(ii) whether such Borrowing is to be converted to or
continued as a Eurodollar
Borrowing or an ABR Borrowing, (iii) if such notice requests a
conversion, the
date of such conversion (which shall be a Business Day) and (iv) if such
Borrowing is to be converted to or continued as a Eurodollar Borrowing, the
Interest Period with respect thereto.
If no Interest Period
is specified in any
such notice with respect to any
conversion to or
continuation
as a Eurodollar
Borrowing, the Borrower shall be deemed to
have selected an Interest Period of
one month's duration. If the Borrower shall not have
given notice in accordance
with this Section 2.05 to convert or continue any
Borrowing,
such Borrowing
shall, at the end of the Interest
Period applicable thereto (unless repaid
pursuant to the terms hereof), automatically be converted or continued into
a
new Interest Period as an ABR
Borrowing.
SECTION 2.06.
Fees. (a) Facility Fee. The Borrower
agrees to pay to
each
Lender, through the Paying Agent,
on each March 31, June
30, September 30
and
December 31 (with the first payment being due on December 31, 2005)
and on the
date on which the Revolving Credit
Commitment of such Lender shall be terminated
or reduced as provided herein, a facility fee (a
"Facility Fee") on the average
daily amount of the Revolving Credit
Commitment of such Lender, whether used or
unused, during the preceding quarter (or
other period commencing on the date of
this Agreement, or ending with any date on which
the Commitments shall be
terminated or reduced) at a rate per annum
equal to the Applicable Facility Fee
Percentage in effect from time to time.
All Facility Fees
shall be computed on
the basis of the actual number of days elapsed in a year
of 365 or 366 days, as
the case may be. The Facility Fee due to
each Lender shall commence to accrue on
the date of this Agreement, and shall cease to accrue on the
earlier of the
Termination Date and the termination of the Commitment of such Lender as
provided herein.
(b) Utilization
Fee. The Borrower agrees to pay to each Lender,
through
the Paying
Agent, on each March 31, June 30, September 30 and
December 31 and
on each date on which the Commitment of such Lender shall
be terminated or reduced as provided herein, a utilization fee (a
"Utilization
Fee") equal to a pro
rata portion (based on the ratio of such
Lender's
Revolving
Credit Commitment to the Total Revolving Credit
Commitment)
of 0.125% per annum on
the sum of (x) the aggregate principal
amount of the
outstanding Loans and
(y) the aggregate
Available Amount of
outstanding
Letters of Credit for each day during the preceding quarter (or
other period
commencing on the date
hereof or ending with the Termination
Date) on which
the sum of (x) the Loans outstanding under the Facility
and
(y) the
aggregate Available Amount of outstanding Letters of Credit
exceeds
50% of the Total
Revolving Credit
Commitments. The
Utilization Fee due to
each Lender
shall be payable in arrears and shall commence to accrue on the
date of this
Agreement and cease to accrue on the Termination Date.
(c) Letter
of Credit Fees. (i) The Borrower agrees to pay to the
Paying
Agent for the account
of each Lender a
commission (the
"Letter of
Credit
Fees") on such Lender's Pro Rata Share of the average daily
aggregate
Available Amount of
all Letters of Credit
outstanding from time
to time at a
rate per annum equal to the Applicable Margin for Eurodollar
Loans in effect
from time to time, payable in arrears quarterly within five
Business
Days after each March
31, June 30, September
30 and December 31,
commencing on
the first such date to occur after the Closing Date, and on
the Termination
Date; provided that for purposes of this
Section 2.06(c),
the Applicable Margin shall increase by 2% upon
the occurrence and during
the continuation of an Event of
Default under Section 6.01(b) or (c) or if
the Borrower is otherwise required to pay default
interest pursuant to
Section
2.09.
(ii) The Borrower
shall pay to each Issuing Bank for its own
account (A) a fronting
fee for each Letter of
Credit issued by
such
Issuing Bank in an amount equal to 0.125% of the Available Amount of
such Letter
of Credit on the date of issuance of such Letter of
Credit, payable
quarterly in arrears and (B) such other fees
as may
from time to time be agreed in writing between the Borrower and such
Issuing Bank.
(d) Administrative
Fees. The Borrower agrees to pay the Paying Agent,
for its own
account, the agency and other fees referred to in the Fee
Letter (the
"Administrative
Fees") at the times
and in the amounts agreed
upon in the Fee
Letter.
(e) Fees shall be paid
on the dates due,
in immediately available
funds, to the
Paying Agent for distribution, if and as appropriate,
among
the Lenders. Once paid, none of the Fees shall be
refundable
under any
circumstances.
SECTION 2.07.
Repayment of Loans;
Evidence of Debt. (a)
Revolving Credit
Loans. The Borrower shall repay to the
Paying Agent for the ratable account of
the Lenders on the Termination Date the aggregate principal amount of the
Revolving Credit Loans then outstanding. Each Revolving Credit Loan shall
bear
interest on the outstanding principal balance thereof as set forth in
Section
2.08.
(b) Letter of Credit Advances. The Borrower shall repay to the
Paying
Agent for the
account of each Issuing Bank and each other Bank that
has
made a
Letter of Credit Advance on the earlier of demand and the
Termination Date
the outstanding
principal amount of each Letter of Credit
Advance made by
each of them;
provided, that the
Borrower shall make such
repayment
(x) on the date of
demand if such
demand is received by the
Borrower
prior to 10:30 AM, New
York City time, on such date or (y) on the
Business Day
immediately following
the date of receipt of such demand, if
demand is received by
the Borrower after 10:30 AM, New York City time.
(c) The obligations
of the Borrower under this Agreement to repay
Letter of Credit
Advances and to provide cash collateral for Letters of
Credit
on the terms set forth herein shall be unconditional and
irrevocable,
and shall be paid and
performed strictly in
accordance with
the terms of
this Agreement (as
this Agreement may be amended from time to
time
in accordance with the terms hereof) under all circumstances,
including,
without limitation, the following circumstances (it being
understood
that any such payment
by the Borrower is without prejudice to,
and does not
constitute a waiver
of, any rights the Borrower might have or
might
acquire as a result of
the payment by any Lender of any draft or the
reimbursement by
the Borrower thereof):
(i) any lack of validity or enforceability of this Agreement,
any
Letter of Credit Agreement, any Letter of Credit or any other
agreement or instrument relating thereto (all of the
foregoing being,
collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or
in
any other term of, all or any of the obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver
of or any consent
to departure from all or any of the L/C
Related
Documents;
(iii) the existence of any claim, set-off, defense or other
right
that the Borrower may have at any time against any beneficiary or any
transferee of a Letter
of Credit (or any
Persons for which any
such
beneficiary or any such transferee may be acting),
any Issuing Bank,
any Agent Party, any Lender or any other Person, whether in
connection
with the transactions contemplated by the L/C Related Documents or
any
unrelated transaction;
(iv) any statement or any other document presented under a
Letter
of Credit proving to be forged, fraudulent, invalid or insufficient
in
any respect or any statement therein being untrue or inaccurate in
any
respect;
(v) payment by any Issuing Bank under a Letter of Credit
against
presentation of a
draft or certificate
that does not strictly comply
with the terms of such Letter of Credit;
(vi) any exchange,
release or
non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure
from
any guarantee,
for all or any of the
obligations of the
Borrower in
respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation,
any other circumstance
that might otherwise constitute a defense
available to, or a discharge of, the Borrower or a guarantor.
(d) Letters of Credit.
(i) The Borrower
shall, on the day that is 10
days prior to
the Termination Date,
pay to the Paying Agent for deposit in
the L/C Cash
Collateral Account an amount sufficient to cause the aggregate
amount on
deposit in the L/C Cash Collateral Account to equal 103% of the
aggregate
Available Amount of all Letters of Credit then outstanding
(including
Letters of Credit with an expiration date (whether due to
automatic
extension or otherwise) that is later than 5 days
before the
Termination
Date) or make other
arrangements
satisfactory to the
Issuing
Banks in their
sole discretion.
Upon the drawing of any such Letter of
Credit,
to the extent funds are on deposit in the L/C Cash Collateral
Account,
such funds shall be
applied to reimburse the Issuing Banks to the
extent
permitted by applicable law, and if so applied, then such
reimbursement
shall
be deemed a repayment by the Borrower of the
corresponding
Letter of Credit
Advance. After all such Letters of
Credit
shall have
expired or been fully
drawn upon and all other obligations of
the Borrower
thereunder shall have
been paid in full, the balance, if any,
in such L/C Cash
Collateral
Account shall be promptly returned to the
Borrower.
So long as no
Default under Section 6.01(c) or any Event of
Default shall
have occurred and be
continuing, upon the
expiration of any
such
Letter of Credit
that has not been
drawn in full, an
amount in cash
equal to 103% of
the Available Amount, less all other unpaid obligations of
the Borrower
with respect to such Letter of Credit,
shall be paid to
the
Borrower by the
Paying Agent.
(ii) If the Borrower
shall not have paid to the Paying Agent for
deposit in the L/C
Cash Collateral
Account the amount set forth in
Section 2.07(d)(i) on
the day that is 5 days prior to the Termination
Date or made other
arrangements
satisfactory to the Issuing Banks in
their sole discretion,
a Revolving Credit Lo
