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[Published CUSIP Number: ________________]
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of May 5, 2005
among
THE TJX COMPANIES, INC.,
as the Borrower,
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
as the Lenders,
BANK OF AMERICA, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
and
THE BANK OF NEW YORK,
as Syndication Agents,
and
CITIZENS BANK OF MASSACHUSETTS,
KEYBANK NATIONAL ASSOCIATION,
and
UNION BANK OF CALIFORNIA, N.A.,
as Documentation Agents
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BANC OF AMERICA SECURITIES LLC,
BNY CAPITAL MARKETS, INC.
and
JPMORGAN SECURITIES INC.,
as Co-Lead Arrangers
and
BNY CAPITAL MARKETS, INC.
and
JPMORGAN SECURITIES INC.,
as Joint Book Runners
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS...................................................................................
1
1.1 Certain Defined
Terms........................................................................
1
ARTICLE II THE
CREDITS..................................................................................
17
2.1 The Syndicated
Loans.........................................................................
17
2.2 Repayment of the Syndicated
Loans............................................................
17
2.3 Ratable Loans; Types of Syndicated
Advances.................................................. 18
2.4 Minimum Amount of Each Syndicated
Advance.................................................... 18
2.5 Optional Prepayments of Syndicated
Loans..................................................... 18
2.6 Method of Selecting Types and Interest Periods for New
Syndicated Advances................... 18
2.7 Conversion and Continuation of Outstanding Syndicated
Advances............................... 19
2.8 Payment of Interest on Syndicated Advances; Changes in
Interest Rate......................... 20
2.9 Swing Line
Loans.............................................................................
20
2.10 Intentionally
Deleted........................................................................
22
2.11 Facility Fee; Utilization Fee; Adjustments in Aggregate
Commitment........................... 22
2.12 Rates Applicable After
Default...............................................................
23
2.13 Method of
Payment............................................................................
24
2.14 Evidence of Debt (Optional Notes); Telephonic
Notices........................................ 24
2.15 Notification of Syndicated Advances, Interest Rates,
Prepayments and Commitment Reductions... 25
2.16 Lending
Installations........................................................................
25
2.17 Non-Receipt of Funds by the Administrative
Agent............................................. 25
2.18 Withholding Tax
Exemption....................................................................
26
2.19
Termination..................................................................................
26
2.20 Letter of Credit
Facility....................................................................
27
2.21
Pricing......................................................................................
31
ARTICLE III CHANGE IN
CIRCUMSTANCES.....................................................................
33
3.1 Yield
Protection.............................................................................
33
3.2 Changes in Capital Adequacy
Regulations......................................................
33
3.3 Availability of Types of Syndicated
Advances................................................. 34
3.4 Funding
Indemnification......................................................................
34
3.5 Mitigation; Lender Statements; Survival of
Indemnity......................................... 35
ARTICLE IV CONDITIONS
PRECEDENT.........................................................................
35
4.1 Effectiveness; Initial Syndicated
Advance.................................................... 35
4.2 Each Syndicated Advance and Letter of
Credit................................................. 36
ARTICLE V REPRESENTATIONS AND
WARRANTIES................................................................
37
5.1 Existence and
Standing.......................................................................
37
5.2 Authorization and
Validity...................................................................
38
5.3 No Conflict; Government
Consent..............................................................
38
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5.4 Financial
Statements.........................................................................
38
5.5 Material Adverse
Change......................................................................
39
5.6
Taxes........................................................................................
39
5.7 Litigation and Contingent
Obligations........................................................
39
5.8
Subsidiaries.................................................................................
39
5.9
ERISA........................................................................................
40
5.10 Accuracy of
Information......................................................................
40
5.11 Regulations T, U and
X.......................................................................
40
5.12 Material
Agreements..........................................................................
40
5.13 Compliance With
Laws.........................................................................
41
5.14 Ownership of
Property........................................................................
41
5.15 Labor
Matters................................................................................
41
5.16 Investment Company
Act.......................................................................
41
5.17 Public Utility Holding Company
Act...........................................................
41
5.18
Insurance....................................................................................
42
ARTICLE VI
COVENANTS....................................................................................
42
6.1 Financial
Reporting..........................................................................
42
6.2 Use of
Proceeds..............................................................................
43
6.3 Other
Notices................................................................................
44
6.4 Conduct of
Business..........................................................................
44
6.5
Taxes........................................................................................
44
6.6
Insurance....................................................................................
44
6.7 Compliance with
Laws.........................................................................
45
6.8 Maintenance of
Properties....................................................................
45
6.9
Inspection...................................................................................
45
6.10
Merger.......................................................................................
45
6.11 Sale of
Assets...............................................................................
46
6.12
Affiliates...................................................................................
46
6.13
Investments..................................................................................
47
6.14 Contingent
Obligations.......................................................................
47
6.15
Liens........................................................................................
48
6.16 Maximum Leverage
Ratio.......................................................................
50
6.17 Intentionally
Deleted........................................................................
50
6.18
Acquisitions.................................................................................
50
6.19 Rate Hedging
Obligations.....................................................................
50
6.20 Subsidiary
Indebtedness......................................................................
50
6.21 Subordination of Intercompany
Indebtedness...................................................
51
ARTICLE VII
DEFAULTS....................................................................................
51
7.1 Breach of Representation or
Warranty.........................................................
51
7.2 Payment
Default..............................................................................
51
7.3 Breach of Certain
Covenants..................................................................
51
7.4 Breach of Other
Provisions...................................................................
51
7.5 Default on Material
Indebtedness.............................................................
52
7.6 Voluntary Insolvency
Proceedings.............................................................
52
7.7 Involuntary Insolvency
Proceedings...........................................................
52
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7.8
Condemnation.................................................................................
53
7.9
Judgments....................................................................................
53
7.10 ERISA
Matters................................................................................
53
7.11 Environmental
Matters........................................................................
53
7.12 Change of
Control............................................................................
53
7.13 Loan Document
Defaults.......................................................................
54
7.14 Off-Balance Sheet
Liabilities................................................................
54
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND
REMEDIES............................................. 54
8.1
Acceleration.................................................................................
54
8.2
Amendments...................................................................................
54
8.3 Preservation of
Rights.......................................................................
55
ARTICLE IX GENERAL
PROVISIONS...........................................................................
56
9.1 Survival of
Representations..................................................................
56
9.2 Governmental
Regulation......................................................................
56
9.3 Taxes; Stamp
Duties..........................................................................
56
9.4
Headings.....................................................................................
56
9.5 Entire
Agreement.............................................................................
57
9.6 Several Obligations; Benefits of this
Agreement.............................................. 57
9.7 Expenses;
Indemnification....................................................................
57
9.8 Numbers of
Documents.........................................................................
59
9.9
Accounting...................................................................................
59
9.10 Severability of
Provisions...................................................................
59
9.11 Nonliability of
Lenders......................................................................
59
9.12 GOVERNING
LAW................................................................................
59
9.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY
TRIAL...................................... 60
9.14
Confidentiality..............................................................................
62
ARTICLE X THE ADMINISTRATIVE
AGENT......................................................................
62
10.1 Appointment; Nature of
Relationship..........................................................
62
10.2
Powers.......................................................................................
63
10.3 General
Immunity.............................................................................
63
10.4 No Responsibility for Loans, Creditworthiness, Collateral,
Recitals, Etc..................... 63
10.5 Action on Instructions of
Lenders............................................................
64
10.6 Employment of Agents and
Counsel.............................................................
64
10.7 Reliance on Documents;
Counsel...............................................................
64
10.8 The Administrative Agent's Reimbursement and
Indemnification................................. 64
10.9 Rights as a
Lender...........................................................................
65
10.10 Lender Credit
Decision.......................................................................
65
10.11 Successor Administrative
Agent...............................................................
65
10.12 No Duties Imposed on Syndication Agents, Documentation
Agents or Arrangers................... 66
10.13 Administrative Agent's
Fee...................................................................
66
ARTICLE XI SETOFF; RATABLE
PAYMENTS.....................................................................
67
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11.1
Setoff.......................................................................................
67
11.2 Ratable
Payments.............................................................................
67
11.3 Application of
Payments......................................................................
67
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS;
PARTICIPATIONS........................................... 68
12.1 Successors and
Assigns.......................................................................
68
12.2
Participations...............................................................................
69
12.3
Assignments..................................................................................
70
12.4 Designated
Lenders...........................................................................
70
12.5 Dissemination of
Information.................................................................
71
12.6 Tax
Treatment................................................................................
72
ARTICLE XIII
NOTICES....................................................................................
72
13.1 Giving
Notice................................................................................
72
13.2 Change of
Address............................................................................
73
ARTICLE XIV
COUNTERPARTS................................................................................
73
ARTICLE XV USA PATRIOT ACT
NOTICE.......................................................................
73
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SCHEDULES
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Schedule 1 Commitments
Schedule 2.20 Issuing Lender's Maximum Amounts
Schedule 5.3 Governmental Authorizations
Schedule 5.7 Litigation
Schedule 5.8 Subsidiaries
Schedule 5.13 Environmental, Health or Safety Requirements of
Law
Schedule 5.14 Liens and Encumbrances
Schedule 6.11 Asset Sales
Schedule 6.13 Investments
Schedule 6.14 Contingent Obligations
Schedule 6.20 Subsidiary Indebtedness
Schedule 6.21 Subordination Terms
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EXHIBITS
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Exhibit A-1 Form of Syndicated Note (if requested)
Exhibit A-2 Form of Swing Line Note (if requested)
Exhibit B Required Opinions
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment Agreement
Exhibit E Form of Loan/Credit Related Money Transfer
Instruction
Exhibit F-1 Form of Syndicated Advance Borrowing Notice
Exhibit F-2 Form of Swing Line Borrowing Notice
Exhibit G Form of Prepayment Notice
Exhibit H Form of Conversion/Continuation Notice
Exhibit I Form of Designation Agreement
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THIS 5-YEAR REVOLVING CREDIT AGREEMENT, dated as of May 5, 2005,
is
among THE TJX COMPANIES, INC., as the Borrower, THE FINANCIAL
INSTITUTIONS NAMED
HEREIN, as the Lenders, BANK OF AMERICA, N.A., as the
Administrative Agent,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION and THE BANK OF NEW
YORK, as
Syndication Agents, and CITIZENS BANK OF MASSACHUSETTS, KEYBANK
NATIONAL
ASSOCIATION and UNION BANK OF CALIFORNIA, N.A., as Documentation
Agents. The
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms.
As used in this Agreement the following terms shall have the
following
meanings, such meanings being equally applicable to both the
singular and plural
forms of the terms defined:
"Accounting Changes" has the meaning specified in Section
9.9.
"Acquisition" means any transaction, or any series of
related
transactions, by which the Borrower or any of its Subsidiaries
(a) acquires any
going business or all or substantially all of the assets of any
firm,
corporation or division thereof which constitutes a going
business, whether
through purchase of assets, merger or otherwise or (b) directly
or indirectly
acquires (in one transaction or as the most recent transaction
in a series of
transactions) at least a majority (in number of votes) of the
securities of a
corporation which have ordinary voting power for the election of
directors
(other than securities having such power only by reason of the
happening of a
contingency), or a majority (by percentage or voting power) of
the outstanding
partnership interests of a partnership or a majority (by
percentage or voting
power) of the outstanding ownership interests of a limited
liability company.
"Administrative Agent" means Bank of America in its capacity
as
contractual representative for the Lenders pursuant to Article
X, and not in its
capacity as a Lender, and any successor Administrative Agent
appointed pursuant
to Article X.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control
with such Person.
A Person shall be deemed to control another Person if the
controlling Person
owns 20% or more of any class of voting securities (or other
ownership
interests) of the controlled Person or possesses, directly or
indirectly, the
power to direct or cause the direction of the management or
policies of the
controlled Person, whether through ownership of stock, by
contract or otherwise;
provided that no individual shall be an Affiliate solely by
reason of being, or
actions taken as, a director, officer or employee.
"Aggregate Commitment" means the aggregate of the Commitments of
all
the Lenders, as adjusted from time to time pursuant to the terms
hereof. The
initial Aggregate Commitment hereunder is Five Hundred Million
and 00/100
Dollars ($500,000,000).
<PAGE>
"Agreement" means this 5-Year Revolving Credit Agreement, as it
may
from time to time be amended, restated, supplemented or
otherwise modified.
"Alternate Base Rate" means, for any day, a rate of interest per
annum
equal to the higher of (a) the Prime Rate for such day and (b)
the sum of
Federal Funds Effective Rate for such day plus 0.50% per
annum.
"Applicable Facility Fee Rate" means, from time to time, the
Applicable Facility Fee Rate set forth in Section 2.21.
"Applicable Utilization Fee Rate" means, from time to time,
the
Applicable Utilization Fee Rate set forth in Section 2.21.
"Arrangers" means BAS, BNYCMI and JPMorgan Securities, in
their
capacity as co-lead arrangers and BNYCMI and JPMorgan
Securities, in their
capacity as joint book runners.
"Article" means an article of this Agreement unless another
document
is specifically referenced.
"Authorized Officer" means any of the President, the Chief
Executive
Officer, the Chief Financial Officer, the Chief Operating
Officer, the
Controller or the Treasurer of the Borrower, acting singly.
"Bank of America" means Bank of America, N.A., in its
individual
capacity, and its successors.
"BAS" means Banc of America Securities LLC, in its
individual
capacity, and its successors.
"BNY" means The Bank of New York, in its individual capacity,
and its
successors.
"BNYCMI" means BNY Capital Markets, Inc., in its individual
capacity,
and its successors.
"Borrower" means The TJX Companies, Inc., a Delaware
corporation, and
its successors and assigns.
"Borrowing Date" means a date on which a Syndicated Advance or a
Swing
Line Loan is made hereunder.
"Borrowing Notice" means a Syndicated Advance Borrowing Notice
or a
Swing Line Borrowing Notice.
"Business Day" means (a) with respect to any borrowing, payment
or
rate selection of Eurodollar Advances, a day (other than a
Saturday or Sunday)
on which banks generally are open in New York, New York and
London, England for
the conduct of substantially all of their commercial lending
activities and (b)
for all other purposes, a day (other
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than a Saturday or Sunday) on which banks generally are open in
New York, New
York for the conduct of substantially all of their commercial
lending
activities; provided that each such day must also be a day on
which the
Administrative Agent is open for the conduct of its
business.
"Capitalized Lease" of a Person means any lease of Property by
such
Person as lessee which would be capitalized on a balance sheet
of such Person
prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount of
the
obligations of such Person under Capitalized Leases which would
be shown as a
liability on a balance sheet of such Person prepared in
accordance with GAAP.
"Change" has the meaning specified in Section 3.2.
"Change in Control" means:
(a) the acquisition by any Person, or "group" (within the
meaning of
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended)
of Persons acting in concert, of beneficial ownership (within
the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the
Securities
Exchange Act of 1934, as amended), directly or indirectly, of
50% or more of the
outstanding shares of voting stock of the Borrower; or
(b) during any period of twelve (12) consecutive calendar
months,
individuals:
(i) who were directors of the Borrower on the first day of
such
period; or
(ii) whose election or nomination for election to the board
of
directors of the Borrower was recommended or approved by at
least a
majority of the directors then still in office who were
directors of the
Borrower on the first day of such period, or whose election or
nomination
for election was so approved,
shall cease to constitute a majority of the board of directors
of the
Borrower.
"Chief Financial Officer" means, at any time, the Person who
reports
to the board of directors of the Borrower on the financial
affairs of the
Borrower and its Subsidiaries.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed
or otherwise modified from time to time.
"Combined Commitment" means the sum of (a) the Aggregate
Commitment
hereunder and (b) the "Aggregate Commitment" under and as
defined in the 4-Year
Revolving Credit Agreement.
"Combined Utilized Amount" means (1) the sum of all Loans
(whether
Syndicated Loans or Swing Line Loans) and L/C Obligations
hereunder, and (2) the
aggregate principal amount of all "Loans" under and as defined
in the 4-Year
Revolving Credit Agreement.
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"Commitment" means, for each Lender, the obligation of such
Lender to
make Syndicated Loans and to purchase participations in Letters
of Credit and in
Swing Line Loans not exceeding, in the aggregate, the amount set
forth opposite
its name on Schedule 1 hereto or as set forth in any Notice of
Assignment
relating to any assignment that has become effective pursuant to
Section 12.3.2,
as such amount may be modified from time to time pursuant to the
terms hereof.
"Condemnation" has the meaning specified in Section 7.8.
"Consolidated Interest Expense" means, for any period, the
aggregate
amount of interest, including payments in the nature of interest
under
Capitalized Lease Obligations and the discount or implied
interest component of
Off-Balance Sheet Liabilities payable by the Borrower and its
Subsidiaries for
such period on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the
consolidated net
income (or loss) of the Borrower and its Subsidiaries for such
period determined
in accordance with GAAP; provided, that there shall be excluded
from such amount
(i) the income (or loss) of any Affiliate of the Borrower or
other Person (other
than a Subsidiary of the Borrower) in which any Person (other
than the Borrower
or any of its Subsidiaries) has a joint interest, except to the
extent of the
amount of dividends or other distributions actually paid to the
Borrower or any
of its Subsidiaries by such Affiliate or other Person during
such period and
(ii) the income (or loss) of any Person accrued prior to the
date it becomes a
Subsidiary of the Borrower or is merged into or consolidated
with the Borrower
or any of its Subsidiaries or that Person's assets are acquired
by the Borrower
or any of its Subsidiaries.
"Consolidated Net Worth" means, as of the date of any
determination
thereof, the consolidated shareholders' equity of the Borrower
and its
Subsidiaries determined in accordance with GAAP.
"Consolidated Rentals" means, for any period, the aggregate
rental
amounts payable by the Borrower and its Subsidiaries for such
period under any
lease of Property having an original term (including any
required renewals or
any renewals at the option of the lessor or lessee) of one year
or more (but
does not include any amounts payable under Capitalized Leases),
determined in
accordance with GAAP; provided, however, that there shall be
excluded from such
calculation rentals in respect of discontinued operations and
other store
closings reflected in the Borrower's consolidated financial
statements (or the
footnotes thereto) to the extent such rentals relate to
operations for which a
charge has been taken and/or reserve established in accordance
with GAAP and
which do not exceed the amount of such charge and/or reserve,
the amount of
which charge and/or reserve has been established consistent with
GAAP.
"Consolidated Total Assets" means, as of the date of any
determination
thereof, the total assets of the Borrower and its Subsidiaries
on a consolidated
basis determined in accordance with GAAP.
"Contingent Obligation" of a Person means any agreement,
written
undertaking or contractual arrangement by which such Person
assumes, guarantees,
endorses, contingently
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agrees to purchase or provide funds for the payment of, or
otherwise becomes or
is contingently liable upon, the financial or monetary
obligation or financial
or monetary liability of any other Person (excluding customary
indemnification
obligations arising from a purchase and sale agreement
negotiated at arm's
length and typical for transactions of a similar nature), or
agrees in writing
to maintain the net worth or working capital or other financial
condition of any
other Person, or otherwise assures any creditor of such other
Person in writing
against loss, including, without limitation, any operating
agreement,
take-or-pay contract or application for or reimbursement
agreement with respect
to a letter of credit (including any Letter of Credit).
"Controlled Group" means all members of a controlled group
of
corporations and all trades or businesses (whether or not
incorporated) under
common control which, together with the Borrower or any of its
Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" has the meaning specified in
Section
2.7.
"Credit Ratings" has the meaning specified in Section 2.21.
"Default" means an event described in Article VII.
"Designated Lender" means, with respect to each Designating
Lender,
each Eligible Designee designated by such Designating Lender
pursuant to Section
12.4(a).
"Designating Lender" means, with respect to each Designated
Lender,
the Lender that designated such Designated Lender pursuant to
such Section
12.4(a).
"Disqualified Stock" means, for any Person, any capital stock of
such
Person that, by its terms (or by the terms of any security into
which it is
convertible or for which it is exchangeable), or upon the
happening of any
event, matures or is mandatorily redeemable, pursuant to a
sinking fund
obligation or otherwise, or redeemable at the option of the
holder thereof, in
whole or in part, on or prior to the date that is ninety-one
(91) days after the
Facility Termination Date.
"Dollars" and "$" mean the lawful money of the United
States.
"EBITDAR" for any period means the sum, without duplication, of
(a)
Consolidated Net Income during such period, plus (to the extent
deducted in
determining Consolidated Net Income) (b) all provisions for any
foreign,
federal, state and local taxes paid or accrued by the Borrower
or any of its
Subsidiaries during such period, plus (to the extent deducted in
determining
Consolidated Net Income) (c) Consolidated Interest Expense of
the Borrower or
any of its Subsidiaries during such period, minus (to the extent
included in
determining Consolidated Net Income) (d) extraordinary gains
(and any unusual
gains whether or not arising in the ordinary course of business
not included in
extraordinary gains) to the extent not included in income from
continuing
operations, plus (to the extent deducted in determining
Consolidated Net Income)
(e) consolidated depreciation, plus (to the extent deducted in
determining
Consolidated Net Income) (f) consolidated amortization expense,
including
without limitation, amortization of goodwill and other
intangible assets and
other non-cash charges but excluding reserves, plus (to the
extent deducted in
determining Consolidated Net Income) (g)
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Consolidated Rentals, plus (to the extent deducted in
determining Consolidated
Net Income) (h) extraordinary losses; all of such items as
determined in
accordance with GAAP.
"Eligible Designee" means a special purpose corporation,
partnership,
limited partnership or limited liability company that is
administered or
sponsored by a Lender or an Affiliate of a Lender and (i) is
organized under the
laws of the United States or any state thereof, (ii) is engaged
primarily in
making, purchasing or otherwise investing in commercial loans in
the ordinary
course of its business and (iii) issues (or the parent of which
issues)
commercial paper rated at least A-1 or the equivalent thereof by
S&P or P-1 or
the equivalent thereof by Moody's.
"Eligible Participant" means (i) a Lender or any Affiliate
thereof
which is a commercial bank, (ii) any other commercial bank
having capital and
surplus in excess of $100,000,000 or (iii) an Eligible
Designee.
"Environmental, Health or Safety Requirements of Law" means
all
Requirements of Law derived from or relating to federal, state
and local laws or
regulations relating to or addressing pollution or protection of
the
environment, or protection of worker health or safety,
including, but not
limited to, the Comprehensive Environmental Response,
Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq., the Occupational Safety and
Health Act of
1970, 29 U.S.C. Section 651 et seq., and the Resource
Conservation and Recovery
Act of 1976, 42 U.S.C. Section 6901 et seq., in each case
including any
amendments thereto, any successor statutes, and any regulations
or guidance
promulgated thereunder, and any state or local equivalent
thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as
amended from time to time, and any rule or regulation issued
thereunder.
"Eurodollar Advance" means a Syndicated Advance denominated in
Dollars
that bears interest at a Eurodollar Rate.
"Eurodollar Applicable Margin" means, from time to time, the
Eurodollar Applicable Margin set forth in Section 2.21.
"Eurodollar Base Rate" means, with respect to a Eurodollar
Advance for
the relevant Eurodollar Interest Period, the applicable British
Bankers'
Association Interest Settlement Rate for deposits in Dollars
appearing on
Reuters Screen FRBD as of 11:00 a.m. (London time) two Business
Days prior to
the first day of such Eurodollar Interest Period and having a
maturity equal to
such Eurodollar Interest Period, provided that, (i) if Reuters
Screen FRBD is
not available to the Administrative Agent for any reason, the
applicable
Eurodollar Base Rate for the relevant Eurodollar Interest Period
shall instead
be the applicable British Bankers' Association Interest
Settlement Rate for
deposits in Dollars as reported by any other generally
recognized financial
information service as of 11:00 a.m. (London time) two Business
Days prior to
the first day of such Eurodollar Interest Period and having a
maturity equal to
such Eurodollar Interest Period, and (ii) if no such British
Bankers'
Association Interest Settlement Rate is available to the
Administrative Agent,
the applicable Eurodollar Base Rate for the relevant Eurodollar
Interest Period
shall instead be the rate determined by the Administrative Agent
to be the rate
at which Bank of America or one of its affiliate banks offers to
place deposits
in Dollars with first-class banks in the London interbank market
at
approximately 11:00
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<PAGE>
a.m. (London time) two Business Days prior to the first day of
such Eurodollar
Interest Period, in the approximate amount of Bank of America's
relevant
Eurodollar Advance and having a maturity equal to such
Eurodollar Interest
Period.
"Eurodollar Interest Period" means, with respect to a
Eurodollar
Advance, a period of one, two, three, six or, if available to
all Lenders,
twelve months commencing on a Business Day selected by the
Borrower pursuant to
this Agreement. Such Eurodollar Interest Period shall end on
(but exclude) the
day which corresponds numerically to such date one, two, three,
six or twelve
months thereafter, unless there is no such numerically
corresponding day in such
next, second, third, sixth or twelfth succeeding month, in which
case such
Eurodollar Interest Period shall end on the last Business Day of
such next,
second, third, sixth or twelfth succeeding month. If a
Eurodollar Interest
Period would otherwise end on a day which is not a Business Day,
such Eurodollar
Interest Period shall end on the next succeeding Business Day,
unless said next
succeeding Business Day falls in a new calendar month, in which
case such
Eurodollar Interest Period shall end on the immediately
preceding Business Day.
"Eurodollar Loan" means a Syndicated Loan denominated in Dollars
which
bears interest at the Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance
for the
relevant Eurodollar Interest Period, the sum of (a) the quotient
of (i) the
Eurodollar Base Rate applicable to such Eurodollar Interest
Period, divided by
(ii) one minus the Reserves (expressed as a decimal) applicable
to such
Eurodollar Interest Period, plus (b) the Eurodollar Applicable
Margin in effect
from time to time during such Eurodollar Interest Period. The
Eurodollar Rate
shall be rounded to the next higher multiple of 1/100 of 1% if
the rate is not
such a multiple.
"Existing Credit Agreements" means, collectively, (i) that
certain
364-Day Credit Agreement dated as of March 26, 2002 among the
Borrower, the
financial institutions named therein, BNY, as successor
administrative agent to
Bank One, NA, JPMorgan and Bank of America, as successor
syndication agents to
Fleet National Bank and BNY and KeyBank and Union Bank of
California, as
successor documentation agents to Bank of America and JP Morgan,
as amended from
time to time, and (ii) that certain 5-Year Revolving Credit
Agreement dated as
of March 26, 2002 among the Borrower, the financial institutions
named therein,
Bank One, NA, as administrative agent, Fleet National Bank and
BNY, as
syndication agents, and Bank of America and JPMorgan, as
documentation agents,
as amended from time to time.
"Facility Termination Date" means May 5, 2010.
"Fair Value" means the value of the relevant asset determined in
an
arm's-length transaction conducted in good faith between an
informed and willing
buyer and an informed and willing seller under no compulsion to
buy or sell.
"Federal Funds Effective Rate" means, for any day, an interest
rate
per annum equal to the weighted average of the rates on
overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal
funds brokers on such day, as published for such day (or, if
such day is not a
Business Day, for the immediately preceding Business Day) by the
Federal Reserve
Bank of New York, or, if such rate is not so published for any
day which is a
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<PAGE>
Business Day, the average (rounded upward, if necessary to a
whole multiple of
1/100 of 1%) of the quotations at approximately 10:00 a.m. (New
York time) on
such day on such transactions received by the Administrative
Agent from three
Federal funds brokers of recognized standing selected by the
Administrative
Agent in its sole discretion.
"Fee Letters" means, collectively, (i) that certain fee letter
dated
as of March 23, 2005 among the Borrower, the Syndication Agents
and the
Arrangers (other than BAS), as amended, restated, supplemented
or otherwise
modified from time to time; and (ii) that certain fee letter
dated as of the
April 6, 2005 between the Borrower and the Administrative Agent,
as amended,
restated, supplemented or otherwise modified from time to
time.
"Floating Rate" means, for any day, a rate per annum equal to
the
Alternate Base Rate for such day, changing when and as the
Alternate Base Rate
changes.
"Floating Rate Advance" means a Syndicated Advance denominated
in
Dollars which bears interest at the Floating Rate.
"Floating Rate Loan" means a Syndicated Loan denominated in
Dollars
which bears interest at the Floating Rate.
"4-Year Revolving Credit Agreement" means that certain
4-Year
Revolving Credit Agreement, dated as of May 5, 2005, among the
Borrower, the
financial institutions named therein, Bank of America, N.A., as
the
administrative agent thereunder, BNY and JPMorgan, as the
syndication agents
thereunder and Citizens Bank of Massachusetts, KeyBank National
Association and
Union Bank of California, N.A., as the documentation agents
thereunder, as the
same may be further amended, restated, supplemented or otherwise
modified and as
in effect from time to time.
"Funded Debt" of any Person means, without duplication, all
obligations of such Person for money borrowed (whether or not
such obligations
have a maturity in excess of one year) which in accordance with
GAAP shall be
classified upon a balance sheet of such Person as liabilities of
such Person,
and in any event shall include (a) all Capitalized Lease
Obligations of such
Person and (b) all Contingent Obligations of such Person with
respect to money
borrowed, but shall exclude (i) notes, bills and checks
presented in the
ordinary course of business by such Person to banks for
collection or deposit,
(ii) with reference to the Borrower and its Subsidiaries, all
obligations of the
Borrower and its Subsidiaries of the character referred to in
this definition to
the extent owing to the Borrower or any Subsidiary, (iii)
bankers acceptances
which, in accordance with GAAP, are classified as accounts
payable and (iv)
Contingent Obligations set forth on Schedule 6.14. Without in
any way limiting
the foregoing, Funded Debt of the Borrower shall include all
Loans outstanding
under this Agreement and all "Loans" outstanding under and as
defined in the
4-Year Revolving Credit Agreement.
"GAAP" means generally accepted accounting principles as in
effect
from time to time in the United States. An Affiliate of the
Borrower which is
consolidated with the accounts of the Borrower in accordance
with GAAP shall for
all accounting and financial tests contained in this Agreement
be treated as a
Subsidiary hereunder.
"Governmental Acts" has the meaning specified in Section
2.20.9.
-8-
<PAGE>
"Governmental Authority" means any country or nation, any
political
subdivision of such country or nation, and any entity exercising
executive,
legislative, judicial, regulatory or administrative functions of
or pertaining
to government of any country or nation or political subdivision
thereof.
"Gross Negligence" means either recklessness or actions taken
or
omitted with conscious indifference to or the complete disregard
of
consequences. Gross Negligence does not mean the absence of
ordinary care or
diligence, or an inadvertent act or inadvertent failure to act.
If the term
"gross negligence" is used with respect to the Administrative
Agent or any
Lender or any indemnitee in any of the Loan Documents, it shall
have the meaning
set forth herein.
"Hedging Agreement" means any interest rate, commodity or
foreign
currency exchange swap, cap or collar arrangement or any other
derivative
product customarily offered by banks or other financial
institutions to their
customers in order to reduce the exposure of such customers to
interest rate and
exchange rate fluctuations.
"Indebtedness" of a Person means, without duplication, such
Person's
(a) obligations for borrowed money, (b) obligations representing
the deferred
purchase price of Property or services (other than (i) accounts
payable and (ii)
bankers acceptances classified in accordance with GAAP as
accounts payable, in
each case arising in the ordinary course of such Person's
business payable on
terms customary in the trade), (c) obligations, whether or not
assumed, secured
by Liens or payable out of the proceeds or production from
Property now or
hereafter owned or acquired by such Person, (d) obligations
which are evidenced
by notes, acceptances (to the extent not classified as accounts
payable in
accordance with GAAP), or other similar instruments, (e)
Capitalized Lease
Obligations, (f) obligations of such Person to purchase
securities or other
property arising out of or in connection with the sale of the
same or
substantially similar securities or property, (g) all
Off-Balance Sheet
Liabilities of such Person, (h) net obligations in respect of
Hedging Agreements
(to the extent a liability is created) (i) all Disqualified
Stock and (j) any
other obligation in writing for borrowed money or financial
accommodation with
respect to other items included in the definition of
Indebtedness above which in
accordance with GAAP would be shown as a liability on the
consolidated balance
sheet of such Person, but excluding, in any event, (i) amounts
payable by such
Person in respect of covenants not to compete, and (ii) with
reference to the
Borrower and its Subsidiaries, all obligations of the Borrower
and its
Subsidiaries of the character referred to in this definition to
the extent owing
to the Borrower or any Subsidiary of the Borrower.
"Indemnified Matters" has the meaning specified in Section
9.7(b).
"Indemnitees" has the meaning specified in Section 9.7(b).
"Intellectual Property" means (i) any and all intangible
personal
property consisting of intellectual property, whether or not
registered with any
governmental entity, including, without limitation, franchises,
licenses,
patents, technology and know-how, copyrights, trademarks, trade
secrets, service
marks, logos and trade names and (ii) any and all contract
rights (including,
without limitation, applications for governmental registrations,
license
agreements, trust agreements and assignment agreements)
creating, evidencing or
conveying an interest or right in or to any of the intellectual
property
described in the preceding clause (i).
-9-
<PAGE>
"Interest Period" means a Eurodollar Interest Period.
"Investment" of a Person means any loan, advance (other than
commission, travel and other loans, credits and advances to
officers and
employees made in the ordinary course of business), extension of
credit (other
than accounts receivable arising in the ordinary course of
business on terms
customary in the trade), deposit account or contribution of
capital by such
Person to any other Person or any investment in, or purchase or
other
acquisition of, the stock, partnership interests, ownership
interests in any
limited liability company, notes, debentures or other securities
of any other
Person made by such Person (other than anticipatory prepayments
to vendors in
the ordinary course of business consistent with past
practice).
"Issuing Lender" means BNY, JPMorgan, Bank of America and any
other
Lender that may become an Issuing Lender pursuant to Section
2.20, and their
respective successors and assigns, in each case in such Lender's
separate
capacity as an issuer of Letters of Credit pursuant to Section
2.20.
"JPMorgan" means JPMorgan Chase Bank, National Association, in
its
individual capacity, and its successors.
"JPMorgan Securities" means JPMorgan Securities Inc., in its
individual capacity, and its successors.
"L/C Draft" means a draft drawn on an Issuing Lender pursuant to
any
of the Letters of Credit.
"L/C Interest" has the meaning specified in Section 2.20.5.
"L/C Obligations" means an amount equal to the sum (without
duplication) of (i) the aggregate of the amount then available
for drawing under
each of the Letters of Credit (which shall include any automatic
increase in the
amount available for drawing under any Letter of Credit, whether
or not such
increase has occurred), (ii) the face amounts of all outstanding
L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have
been accepted by
the Issuing Lenders and (iii) the aggregate outstanding amount
of Reimbursement
Obligations at such time.
"Lenders" means the lending institutions listed on the signature
pages
of this Agreement and their respective successors and
assigns.
"Lending Installation" means, with respect to a Lender, any
office,
branch, subsidiary or affiliate of such Lender.
"Letter of Credit" means any standby or commercial letter of
credit
issued pursuant to Section 2.20.
"Leverage Ratio" means, with respect to the last day of any
fiscal
quarter, the ratio of:
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<PAGE>
(i) the sum of (a) Funded Debt of the Borrower and its
Subsidiaries on a consolidated basis, plus (b) an amount equal
to the
product of four (4) multiplied by Consolidated Rentals for the
period of
four consecutive fiscal quarters ending on such day to
(ii) EBITDAR of the Borrower and its Subsidiaries on a
consolidated basis for the period of four consecutive fiscal
quarters
ending on such day.
"Lien" means any lien (statutory or other), mortgage,
pledge,
hypothecation, assignment, deposit arrangement, encumbrance or
preference,
priority or other security agreement or preferential arrangement
of any kind or
nature whatsoever (including, without limitation, the interest
of a vendor or
lessor under any conditional sale, Capitalized Lease or other
title retention
agreement).
"Loan" means a Syndicated Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, any Notes, the
applications,
reimbursement agreements and other instruments and agreements
related to the
Letters of Credit and L/C Interests and all other documents,
instruments and
agreements executed in connection therewith or contemplated
thereby, as the same
may be amended, restated, supplemented or otherwise modified and
in effect from
time to time.
"Material Adverse Effect" means a material adverse effect on (a)
the
business, financial condition, operations, performance or
Property of the
Borrower and its Subsidiaries on a consolidated basis, (b) the
ability of the
Borrower to perform its obligations under the Loan Documents, or
(c) the
validity or enforceability of any of the Loan Documents or any
material rights
or remedies of the Administrative Agent or the Lenders
thereunder.
"Material Indebtedness" means Indebtedness (including the
net
obligations in respect of Hedging Agreements) which,
individually, or in the
aggregate, exceeds $30,000,000.
"Money Market Rate" is defined in Section 2.9(a).
"Money Market Rate Loan" means a Swing Line Loan which bears
interest
at a Money Market Rate.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a Plan, if any, maintained pursuant
to a
collective bargaining agreement or any other arrangement to
which the Borrower
or any member of the Controlled Group is a party to which more
than one
non-Affiliated employer is obligated to make contributions.
"Note" means a Syndicated Note or a Swing Line Note.
"Notice of Assignment" has the meaning specified in Section
12.3.2.
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<PAGE>
"Obligations" means all unpaid principal of and accrued and
unpaid
interest on the Loans, all L/C Obligations, all accrued and
unpaid fees and all
expenses, reimbursements, indemnities and other obligations of
the Borrower to
the Lenders or to any Lender, the Administrative Agent or any
indemnified party
hereunder arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any
repurchase
obligation or liability of such Person or any of its
Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of
its Subsidiaries
(calculated to include the unrecovered investment of purchasers
or transferees
of accounts or any other obligation of such Person or such
transferor to
purchasers/transferees of interests in accounts or notes
receivable or the agent
for such purchasers/transferees), (ii) any liability under any
sale and
leaseback transaction which is not a Capitalized Lease, (iii)
any liability
under any financing lease or Synthetic Lease or "tax ownership
operating lease"
transaction entered into by such Person, including any Synthetic
Lease
Obligations, or (iv) any obligation arising with respect to any
other
transaction which is the functional equivalent of or takes the
place of
borrowing but which does not constitute a liability on the
balance sheets of
such Person, but excluding from this clause (iv) Operating
Leases.
"Operating Lease" of a Person means any lease of Property (other
than
a Capitalized Lease) by such Person as lessee.
"Participant" has the meaning specified in Section 12.2.1.
"Patriot Act" has the meaning specified in Article XV.
"Payment Office" means the principal office of the
Administrative
Agent in Concord, California, located on the date hereof at 1850
Gateway
Boulevard, Concord, California 94520 or such other office of the
Administrative
Agent as the Administrative Agent may from time to time
designate by written
notice to the Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any
successor thereto.
"Permitted Acquisition" means any Acquisition made by the
Borrower or
any of its Subsidiaries, provided that upon giving effect to
each such
Acquisition (a) the Person so acquired by the Borrower shall
have either been
merged into the Borrower or a Subsidiary (with the Borrower or
the Subsidiary as
the surviving entity) or such Person shall have become a
Subsidiary of the
Borrower; (b) no Default or Unmatured Default shall exist; (c)
the Acquisition
is consummated on a non-hostile basis approved by a majority of
the board of
directors or other governing body of the Person being acquired;
and (d) involves
the purchase of a business line similar, related, complementary
or incidental to
that of the Borrower and its Subsidiaries as of the date of this
Agreement.
"Person" means any natural person, corporation, firm, joint
venture,
partnership, limited liability company, association, enterprise,
trust or other
entity or organization, or any government or political
subdivision or any
agency, department or instrumentality thereof.
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<PAGE>
"Plan" means an employee pension benefit plan which is covered
by
Title IV of ERISA or subject to the minimum funding standards
under Section 412
of the Code as to which the Borrower or any member of the
Controlled Group may
have any liability.
"Prepayment Notice" has the meaning specified in Section
2.5.
"Prime Rate" means the per annum rate announced by the
Administrative
Agent (or its parent) from time to time as its "prime rate" (it
being
acknowledged that such announced rate is a rate set by the
Administrative Agent
based on various factors including the Administrative Agent's
costs and desired
return, general economic conditions and other factors, and is
used as a
reference point for pricing some loans, which may be priced at,
above or below
such announced rate), which prime rate shall change at the
opening of business
on the day of any change in such announced rate.
"Pro Rata Share" means, with respect to any Lender, the
percentage
obtained by dividing (A) such Lender's Commitment at such time
(as adjusted from
time to time in accordance with the provisions of this
Agreement) by (B) the
Aggregate Commitment at such time; provided, that if the
Commitments are
terminated pursuant to the terms of this Agreement, then "Pro
Rata Share" means
the percentage obtained by dividing (x) the sum of each Lender's
L/C
Obligations, Syndicated Loans and Swing Line Loans by (y) the
aggregate amount
of all Syndicated Loans, Swing Line Loans and L/C
Obligations.
"Property" of a Person means any and all property, whether
real,
personal, tangible, intangible, or mixed, of such Person, or
other assets owned,
leased or operated by such Person.
"Purchasers" has the meaning specified in Section 12.3.1.
"Rated Debt" means the Borrower's senior unsecured
non-credit-enhanced
long-term Indebtedness, which Indebtedness does not benefit from
guaranties or
other credit enhancement provided by any of the Borrower's
Subsidiaries.
"Regulation D" means Regulation D of the Board of Governors of
the
Federal Reserve System as from time to time in effect and any
successor thereto
or other regulation or official interpretation of said Board of
Governors
relating to reserve requirements applicable to member banks of
the Federal
Reserve System.
"Regulation T" means Regulation T of the Board of Governors of
the
Federal Reserve System as from time to time in effect and any
successor or other
regulation or official interpretation of said Board of Governors
relating to the
extension of credit by and to brokers and dealers of securities
for the purpose
of purchasing or carrying margin stocks.
"Regulation U" means Regulation U of the Board of Governors of
the
Federal Reserve System as from time to time in effect and any
successor or other
regulation or official interpretation of said Board of Governors
relating to the
extension of credit by banks for the purpose of purchasing or
carrying margin
stocks applicable to member banks of the Federal Reserve
System.
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<PAGE>
"Regulation X" means Regulation X of the Board of Governors of
the
Federal Reserve System as from time to time in effect and any
successor or other
regulation or official interpretation of said Board of Governors
relating to the
extension of credit by foreign lenders for the purpose of
purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligation" is defined in Section 2.20.6.
"Reportable Event" means a reportable event as defined in
Section 4043
of ERISA and the regulations issued under such section, with
respect to a Plan,
excluding, however, such events as to which the PBGC by
regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within 30 days of
the occurrence of such event; provided, however, that a failure
to meet the
minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any
such waiver of the
notice requirement in accordance with either Section 4043(a) of
ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders having, in the aggregate, at
least
51% of the Aggregate Commitment; provided, however, that in the
event any of the
Lenders shall have failed to fund a portion of any Syndicated
Advance requested
by the Borrower, any participation in any Letter of Credit or
any refunding of
or participation in any Swing Line Loan which such Lenders are
obligated to fund
under the terms of this Agreement and any such failure has not
been cured, then
for so long as such failure continues, "Required Lenders" means
Lenders
(excluding all such defaulting Lenders) having, in the
aggregate, at least 51%
of the aggregate Commitments of such non-defaulting Lenders;
provided, further,
however, that, if the Aggregate Commitment has been terminated
pursuant to the
terms of this Agreement, "Required Lenders" means Lenders
(without regard to
such Lenders' performance of their respective obligations
hereunder) whose
aggregate outstanding principal balance of all Syndicated Loans,
Swing Line
Loans and L/C Obligations is equal to or greater than 51%.
"Requirements of Law" means, as to any Person, the charter and
by-laws
or other organizational or governing documents of such Person,
and any law, rule
or regulation, or determination of an arbitrator or a court or
other
Governmental Authority, in each case applicable to or binding
upon such Person
or any of its property or to which such Person or any of its
property is subject
including, without limitation, the Securities Act of 1933, as
amended, the
Securities Exchange Act of 1934, as amended, Regulations T, U
and X, ERISA, the
Fair Labor Standards Act, the Worker Adjustment and Retraining
Notification Act,
Americans with Disabilities Act of 1990, and any certificate of
occupancy,
zoning ordinance, building, environmental or land use
requirement or permit or
environmental, labor, employment, occupational safety or health
law, rule or
regulation, including Environmental, Health or Safety
Requirements of Law.
"Reserves" means, with respect to a Eurodollar Interest Period,
the
maximum aggregate reserves (including all basic, supplemental,
marginal and
other reserves) imposed under Regulation D on Eurocurrency
liabilities.
"Risk-Based Capital Guidelines" has the meaning specified in
Section
3.2.
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<PAGE>
"S&P" means Standard & Poor's Ratings Group, a division
of The
McGraw-Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other
transfer of
Property by any Person with intent to lease such Property as
lessee pursuant to
a Capitalized Lease.
"Section" means a numbered section of this Agreement, unless
another
document is specifically referenced.
"Single Employer Plan" means a Plan, if any, maintained by
the
Borrower or any member of the Controlled Group for employees of
the Borrower or
any member of the Controlled Group. The term "Single Employer
Plan" does not
include any Multiemployer Plan.
"Specified Remittance Time" means (a) if the relevant Payment
Office
is located in New York, New York, 2:00 p.m. (New York time) and
(b) if the
relevant Payment Office is located elsewhere, such time as the
Administrative
Agent shall specify after consultation with the Lenders and the
consent of the
Borrower, which consent shall not be unreasonably withheld.
"Subsidiary" of a Person means (a) any corporation more than 50%
of
the outstanding securities having ordinary voting power of which
shall at the
time be owned or controlled, directly or indirectly, by such
Person or by one or
more of its Subsidiaries or by such Person and one or more of
its Subsidiaries,
or (b) any partnership, limited liability company, association,
joint venture or
similar business organization more than 50% of the ownership
interests having
ordinary voting power of which shall at the time be so owned or
controlled.
Unless otherwise expressly provided, all references herein to a
"Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of
any
Person and its Subsidiaries, Property which:
(a) when aggregated with all other Property in accordance with
Section
6.11 (i) represents more than 15% of the consolidated assets of
such Person and
its Subsidiaries as would be shown in the consolidated financial
statements of
such Person and its Subsidiaries as at the beginning of the
fiscal year in which
such determination is made, or (ii) is responsible for more than
15% of the
consolidated net sales of such Person and its Subsidiaries as
reflected in the
financial statements referred to in clause (i) above; or
(b) in any individual transaction or series of related
transactions
(i) represents more than 10% of the consolidated assets of such
Person and its
Subsidiaries as would be shown in the consolidated financial
statements of such
Person and its Subsidiaries as at the beginning of the fiscal
year in which such
determination is made, or (ii) is responsible for more than 10%
of the
consolidated net sales of such Person and its Subsidiaries as
reflected in the
financial statements referred to in clause (i) above.
"Swing Line Borrowing Notice" has the meaning specified in
Section
2.9(b).
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<PAGE>
"Swing Line Commitment" means the obligation of the Swing Line
Lender
to make Swing Line Loans up to a maximum principal amount of
$25,000,000 at any
one time outstanding.
"Swing Line Lender" means Bank of America or any other Lender as
a
successor Swing Line Lender.
"Swing Line Loan" means a loan made available to the Borrower by
the
Swing Line Lender pursuant to Section 2.9.
"Swing Line Note" means a Note in substantially the form of
Exhibit
A-2 hereto duly executed by the Borrower and payable to the
order of the Swing
Line Lender in the amount of its Swing Line Commitment.
"Syndicated Advance" means a borrowing consisting of
simultaneous
Syndicated Loans of the same Type made to the Borrower by each
of the Lenders
pursuant to Section 2.1, and, in the case of Eurodollar
Advances, for the same
Interest Period.
"Syndicated Advance Borrowing Notice" has the meaning specified
in
Section 2.6.
"Syndicated Loan" means a loan by a Lender to the Borrower as
part of
a Syndicated Advance.
"Syndicated Note" means a promissory note of the Borrower
payable to
the order of any Lender, in substantially the form of Exhibit
A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such
Lender resulting
from the Syndicated Loans made by such Lender to the
Borrower.
"Syndication Agents" means, collectively, BNY and JPMorgan, and
their
respective successors and assigns.
"Synthetic Lease" means a so-called "synthetic" lease that is
not
treated as a capital lease under GAAP, but that is treated as a
financing under
the Code.
"Synthetic Lease Obligations" means, collectively, the
payment
obligations of the Borrower or any of its Subsidiaries pursuant
to a Synthetic
Lease.
"Transferee" has the meaning specified in Section 12.5.
"Type" means, (a) with respect to any Syndicated Loan, its
nature as a
Floating Rate Loan or a Eurodollar Loan and (b) with respect to
any Syndicated
Advance, its nature as a Floating Rate Advance or a Eurodollar
Advance.
"Unfunded Liabilities" means the amount (if any) by which the
present
actuarial value of all vested nonforfeitable benefits under all
Single Employer
Plans (based on the actuarial assumptions for each such plan)
exceeds the Fair
Value of all such Plan assets allocable to such benefits, all
determined as of
the then most recent valuation date for such Plans.
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"United States" and "U.S." mean the United States of
America.
"Unmatured Default" means an event which but for the lapse of
time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (a) any Subsidiary
all of
the outstanding voting securities of which (other than directors
qualifying
shares and shares required by applicable corporate law to be
owned by foreign
nationals) shall at the time be owned or controlled, directly or
indirectly, by
such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such
Person and one or more Wholly-Owned Subsidiaries of such Person,
or (b) any
partnership, association, joint venture or similar business
organization 100% of
the ownership interests having ordinary voting power of which
(other than
directors qualifying shares and shares required by applicable
corporate law to
be owned by foreign nationals) shall at the time be so owned or
controlled.
ARTICLE II
THE CREDITS
2.1 The Syndicated Loans.
From and including the date of this Agreement and prior to
the
Facility Termination Date, each Lender severally agrees, on the
terms and
conditions set forth in this Agreement (including, without
limitation, the terms
and conditions of Section 2.11 and Section 8.1 relating to the
reduction,
suspension or termination of the Aggregate Commitment), to make
Syndicated Loans
to the Borrower from time to time in an aggregate amount not to
exceed at any
one time outstanding the amount of such Lender's Commitment;
provided, however,
that the Aggregate Commitment shall be deemed used from time to
time to the
extent of (i) the aggregate L/C Obligations then outstanding,
and such deemed
use of the Aggregate Commitment shall be applied to the Lenders
ratably
according to their respective Commitments and (ii) the aggregate
amount of the
Swing Line Loans then outstanding, and such deemed use of the
Aggregate
Commitment shall be applied to the Lenders ratably according to
their respective
Commitments. Subject to the terms of this Agreement (including,
without
limitation, the terms and conditions of Section 2.11 and Section
8.1 relating to
the reduction, suspension or termination of the Aggregate
Commitment), the
Borrower may borrow, repay and reborrow Syndicated Loans at any
time prior to
the Facility Termination Date. Unless earlier terminated in
accordance with the
terms and conditions of this Agreement, the Commitments of the
Lenders to lend
hereunder shall expire on the Facility Termination Date.
Notwithstanding
anything herein to the contrary, each of the Lenders shall be
required to fund
its ratable share of any Syndicated Advance made in connection
with any L/C
Drafts notwithstanding that such Advance may be made on or after
the date of any
reduction, suspension or termination of the Aggregate Commitment
pursuant to
Section 2.11(c) or Section 8.1 of this Agreement.
2.2 Repayment of the Syndicated Loans.
Any outstanding Syndicated Loans shall be paid in full by the
Borrower
on the Facility Termination Date; provided, however, that
nothing in this
Section 2.2 shall be construed
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as limiting or modifying the obligation of the Borrower to repay
any or all of
the outstanding Syndicated Loans at any earlier time in
accordance with the
terms of this Agreement.
2.3 Ratable Loans; Types of Syndicated Advances.
Each Syndicated Advance hereunder shall consist of Syndicated
Loans
made from the several Lenders ratably in proportion to their
respective Pro Rata
Shares of the Aggregate Commitment. Any Syndicated Advance may
be a Floating
Rate Advance or a Eurodollar Advance, as the Borrower shall
select in accordance
with Sections 2.6 and 2.7.
2.4 Minimum Amount of Each Syndicated Advance.
Each Eurodollar Advance shall be in the minimum amount of
$15,000,000
(and an integral multiple of $5,000,000 if in excess thereof)
and each Floating
Rate Advance shall be in the minimum amount of $10,000,000 (and
an integral
multiple of $1,000,000 if in excess thereof); provided, however,
that any
Syndicated Advance that is a Floating Rate Advance may be in the
amount of the
unused Aggregate Commitment.
2.5 Optional Prepayments of Syndicated Loans.
Subject to Section 3.4 and the requirements of Section 2.4,
the
Borrower may (a) following notice given to the Administrative
Agent by the
Borrower, in the form attached hereto as Exhibit G (a
"Prepayment Notice") by
not later than 2:00 p.m. (New York) on the date of the proposed
prepayment, such
notice specifying the aggregate principal amount of and the
proposed date of the
prepayment, and if such notice is given the Borrower shall,
prepay the
outstanding principal amounts of the Floating Rate Loans
comprising part of the
same Syndicated Advance in whole or ratably in part, together
with accrued
interest to the date of such prepayment on the principal amount
prepaid and (b)
following a Prepayment Notice given to the Administrative Agent
by the Borrower
by not later than 2:00 p.m. (New York) on, if the Syndicated
Advance to be
prepaid is a Eurodollar Advance, the third Business Day
preceding the date of
the proposed prepayment, such notice specifying the Syndicated
Advance to be
prepaid and the proposed date of the prepayment, and, if such
notice is given,
such Borrower shall, prepay the outstanding principal amounts of
the Eurodollar
Loans comprising a Eurodollar Advance in whole (and not in
part), together with
accrued interest to the date of such prepayment on the principal
amount prepaid.
In the case of a Floating Rate Advance, each partial prepayment
shall be in an
aggregate principal amount not less than $10,000,000 (and an
integral multiple
of $1,000,000 if in excess thereof).
2.6 Method of Selecting Types and Interest Periods for New
Syndicated
Advances.
The Borrower shall select the Type of each Syndicated Advance
and, in
the case of a Eurodollar Advance, the Interest Period applicable
to such
Syndicated Advance from time to time. The Borrower shall give
the Administrative
Agent irrevocable notice, in the form attached hereto as Exhibit
F-1 (a
"Syndicated Advance Borrowing Notice"), not later than 12:00
p.m. (New York) (i)
on the Borrowing Date for each Floating Rate Advance and (ii) at
least three
Business Days before the Borrowing Date for each Eurodollar
Advance, specifying:
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(a) the Borrowing Date, which shall be a Business Day, of
such
Syndicated Advance,
(b) the aggregate amount of such Syndicated Advance,
(c) the Type of such Syndicated Advance, and
(d) in the case of each Eurodollar Advance, the Interest
Period
applicable thereto.
Not later than the Specified Remittance Time on each Borrowing
Date, each Lender
shall make available its Syndicated Loan or Syndicated Loans to
the
Administrative Agent in immediately available funds at the
relevant Payment
Office. To the extent that the Administrative Agent has received
funds from the
Lenders as specified in the preceding sentence and the
applicable conditions set
forth in Article IV have been fulfilled, the Administrative
Agent will make such
funds available to the Borrower at the relevant Payment Office
promptly
following the Specified Remittance Time, it being understood
that, upon the
request and direction of the Borrower, the Administrative Agent
will make the
applicable funds available to the Borrower by depositing such
funds to such
account with Bank of America as the Borrower shall
designate.
2.7 Conversion and Continuation of Outstanding Syndicated
Advances.
Floating Rate Advances shall continue as Floating Rate Advances
unless
and until such Floating Rate Advances are converted into
Eurodollar Advances or
prepaid pursuant to Section 2.5. Each Eurodollar Advance shall
continue as a
Eurodollar Advance until the end of the then applicable Interest
Period
therefor, at which time such Eurodollar Advance shall be
automatically converted
into a Floating Rate Advance unless the Borrower shall have
given the
Administrative Agent a Conversion/Continuation Notice requesting
that, at the
end of such Interest Period, such Eurodollar Advance either
continue as a
Eurodollar Advance for the same or another Interest Period or be
converted into
a Syndicated Advance of another Type. Subject to the terms of
Section 2.6, the
Borrower may elect from time to time to convert all or any part
of a Syndicated
Advance of any Type into any other Type or Types of Syndicated
Advances;
provided that any conversion of any Eurodollar Advance shall be
made on, and
only on, the last day of the Interest Period applicable thereto.
The Borrower
shall give the Administrative Agent irrevocable notice in the
form of Exhibit H
hereto (a "Conversion/Continuation Notice") of each conversion
of a Syndicated
Advance or continuation of a Eurodollar Advance not later than
12:00 p.m. (New
York time) (i) in the case of a conversion into a Floating Rate
Advance on the
date of such conversion and (ii) in the case of a conversion
into or
continuation of a Eurodollar Advance, at least three Business
Days before the
date of such conversion or continuation, specifying:
(a) the requested date, which shall be a Business Day, of
such
conversion or continuation;
(b) the aggregate amount and Type of the Syndicated Advance
which is
to be converted or continued; and
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(c) the amount and Type(s) of Syndicated Advance(s) into which
such
Syndicated Advance is to be converted or continued and, in the
case of a
conversion into or continuation of a Eurodollar Advance, the
duration of the
Interest Period applicable thereto.
2.8 Payment of Interest on Syndicated Advances; Changes in
Interest
Rate.
(a) Interest accrued on each Floating Rate Advance shall be
payable in
arrears on the last Business Day of each fiscal quarter, on the
Facility
Termination Date, on the date of the reduction of all or any
part of the
Aggregate Commitment pursuant to Section 2.11 (solely with
respect to such
reduced amount) and on the date on which this Agreement is
terminated in full
and all of the Obligations hereunder have been paid in full
pursuant to Section
2.2. Interest accrued on each Eurodollar Advance shall be
payable in arrears on
the last day of its applicable Interest Period, on any date on
which the
Eurodollar Advance is prepaid, whether by acceleration or
otherwise, and at
maturity. Interest accrued on each Eurodollar Advance having an
Interest Period
longer than three months shall also be payable on the last day
of each
three-month interval during such Interest Period. Interest on
Floating Rate
Advances shall be calculated for actual days elapsed on the
basis of a 365/366
-day year. Interest on Eurodollar Advances shall be calculated
for actual days
elapsed on the basis of a 360-day year. Interest shall be
payable for the day a
Syndicated Advance is made but not for the day of any payment on
the amount paid
if payment is received prior to 2:00 p.m. (New York time) at the
place of
payment. If any payment of principal of or interest on a
Syndicated Advance
shall become due on a day which is not a Business Day, such
payment shall be
made on the next succeeding Business Day and, in the case of a
principal
payment, such extension of time shall be included in computing
interest in
connection with such payment.
(b) Each Floating Rate Advance shall bear interest on the
outstanding
principal amount thereof, for each day from and including the
date such Floating
Rate Advance is made or is converted from a Eurodollar Advance
into a Floating
Rate Advance pursuant to Section 2.7 to but excluding the date
it becomes due or
is converted into a Eurodollar Advance pursuant to Section 2.7,
at a rate per
annum equal to the Floating Rate for such day. Changes in the
rate of interest
on each Syndicated Advance maintained as a Floating Rate Advance
will take
effect simultaneously with each change in the Alternate Base
Rate. Each
Eurodollar Advance shall bear interest from and including the
first day of the
Interest Period applicable thereto to (but not including) the
last day of such
Interest Period at the Eurodollar Rate determined as applicable
to such
Eurodollar Advance. No Interest Period may end after the
Facility Termination
Date.
2.9 Swing Line Loans.
(a) Amount of Swing Line Loans. Upon the satisfaction of the
conditions precedent set forth in Sections 4.1 and 4.2, from and
including the
date of this Agreement and prior to the Facility Termination
Date, the Swing
Line Lender agrees, on the terms and conditions set forth in
this Agreement, to
make Swing Line Loans to the Borrower from time to time in an
amount not to
exceed the least of (i) the Swing Line Commitment, (ii) the
amount by which the
Aggregate Commitment exceeds the sum of the outstanding
principal amount of
Syndicated Advances and L/C Obligations, or (iii) the available
amount of the
Commitment of the Swing Line Lender in its individual capacity
as a Lender
hereunder. In furtherance of the foregoing, the aggregate
outstanding principal
amount of the Swing Line Loans and Syndicated
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Loans made by the Swing Line Lender and L/C Obligations owing to
the Swing Line
Lender shall at no time exceed the Commitment of the Swing Line
Lender and, if
at any time any such excess shall exist, the Borrower shall make
a mandatory
payment sufficient to eliminate such excess, which payment shall
be applied to
reduce the outstanding amount of the Swing Line Loans. Each
Swing Line Loan
shall be in a minimum amount of $1,000,000 and increments of
$1,000,000 in
excess thereof and all interest payable on the Swing Line Loans
shall be payable
to the Swing Line Lender for the account of such Swing Line
Lender. In no event
shall the number of Swing Line Loans outstanding at any time be
greater than
five. The Swing Line Lender agrees, upon the Borrower's request
therefor,
promptly to provide information regarding the applicable
interest rate at which
the Swing Line Lender will make Swing Line Loans to the Borrower
on the Business
Day of such request or the immediately following Business Day if
such request is
received after 2:00 p.m. (New York time) (the "Money Market
Rate"), which Money
Market Rate, in any event, shall not exceed the Floating Rate
then applicable to
Floating Rate Advances.
(b) Borrowing Notice. The Borrower shall deliver to the
Administrative
Agent and the Swing Line Lender an irrevocable notice, in the
form attached
hereto as Exhibit F-2 (a "Swing Line Borrowing Notice"), signed
by it not later
than 12:00 p.m. (New York time) on the Borrowing Date of each
Swing Line Loan
specifying (i) the applicable Borrowing Date (which shall be a
Business Day),
(ii) the aggregate amount of the requested Swing Line Loan and
(iii) subject to
the confirmation thereof by the Swing Line Lender, the Money
Market Rate
applicable to the requested Swing Line Loan. The Swing Line
Loans shall at all
times be Money Market Rate Loans.
(c) Making of Swing Line Loans. Promptly after receipt of the
Swing
Line Borrowing Notice under Section 2.9(b), the Administrative
Agent shall
notify each Lender of the requested Swing Line Loan. Promptly on
the applicable
Borrowing Date, the Swing Line Lender shall make available its
Swing Line Loan
in funds immediately available in New York, New York to the
Administrative Agent
at the address specified by the Administrative Agent. The
Administrative Agent
will promptly make such funds available to the Borrower.
(d) Repayment of Swing Line Loans. Each Swing Line Loan shall be
paid
in full by the Borrower on or before the seventh Business Day
after the
Borrowing Date for such Swing Line Loan. Outstanding Swing Line
Loans may be
repaid from the proceeds of Syndicated Advances or Swing Line
Loans. Any
repayment of a Swing Line Loan shall be accompanied by accrued
interest thereon
and shall be in the minimum amount of $500,000 and in increments
of $100,000 in
excess thereof or the full amount of such Swing Line Loan. If
the Borrower at
any time fails to repay a Swing Line Loan on the applicable date
when due, the
Borrower shall be deemed to have elected to borrow a Floating
Rate Advance under
Section 2.1 as of such date equal in amount to the unpaid amount
of the Swing
Line Loan and interest thereon (notwithstanding the minimum
amount of Syndicated
Advances as provided in Section 2.4). The proceeds of any such
Floating Rate
Advance shall be used to repay the Swing Line Loan and interest
thereon. Unless
any Lender shall have notified the Swing Line Lender prior to
its making any
Swing Line Loan, that the applicable conditions precedent set
forth in Article
IV have not then been satisfied, each Lender's obligation to
make Loans pursuant
to Section 2.1 and this Section 2.9(d) to repay Swing Line Loans
shall be
unconditional, continuing, irrevocable and absolute and shall
not be affected by
any circumstances, including the occurrence or continuance
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of a Default. In the event that any Lender fails to make payment
to the
Administrative Agent of any amount due under this Section
2.9(d), the
Administrative Agent shall be entitled to receive, retain and
apply against such
obligation the principal and interest otherwise payable to such
Lender hereunder
until the Administrative Agent receives such payment from such
Lender or such
obligation is otherwise fully satisfied. In addition to the
foregoing, if for
any reason any Lender fails to make payment to the
Administrative Agent of any
amount due under this Section 2.9(d), such Lender shall be
deemed, at the option
of the Administrative Agent, to have unconditionally and
irrevocably purchased
from the Swing Line Lender, without recourse or warranty, an
undivided interest
in and participation in the applicable Swing Line Loan in the
amount of the Loan
such Lender was required to make pursuant to this Section 2.9(d)
and such
interest and participation may be recovered from such Lender
together with
interest thereon at the Federal Funds Effective Rate for each
day during the
period commencing on the date of demand by the Administrative
Agent and ending
on the date such obligation is fully satisfied.
2.10 Intentionally Deleted.
2.11 Facility Fee; Utilization Fee; Adjustments in Aggregate
Commitment.
(a) Facility Fee. The Borrower agrees to pay to the
Administrative
Agent for the account of each Lender a facility fee at a rate
per annum equal to
the Applicable Facility Fee Rate in effect from time to time on
such Lender's
Commitment (determined without giving effect to any usage of the
Commitments),
whether used or unused, from the date hereof until the date on
which this
Agreement is terminated in full and all of the Obligations
hereunder have been
paid in full pursuant to Section 2.2. Such facility fees shall
be payable in
arrears on the last Business Day of each March, June, September
and December, on
the Facility Termination Date, on the date of the reduction of
all or any part
of the Aggregate Commitment pursuant to Section 2.11(c) (solely
with respect to
such reduced amount) and on the date on which this Agreement is
terminated in
full and all of the Obligations hereunder have been paid in full
pursuant to
Section 2.2. Facility fees shall be calculated for actual days
elapsed on the
basis of a 360-day year.
(b) Utilization Fee. For each day from and after the date hereof
on
which the Combined Utilized Amount exceeds fifty percent (50%)
of the Combined
Commitment, the Borrower agrees to pay to the Administrative
Agent, for the
ratable account of each Lender, a utilization fee at a rate per
annum equal to
the Applicable Utilization Fee Rate in effect from time to time
on the sum of
all Loans (including all Syndicated Loans and Swing Line Loans)
and L/C
Obligations, payable from the date hereof until the date on
which this Agreement
is terminated in full and all of the Obligations hereunder have
been paid in
full pursuant to Section 2.2. Such utilization fees shall be
payable in arrears
on the last Business Day of each March, June, September and
December, on the
Facility Termination Date, on the date of the reduction of all
or any part of
the Aggregate Commitment pursuant to Section 2.11(c) and on the
date on which
this Agreement is terminated in full and all of the Obligations
hereunder have
been paid in full pursuant to Section 2.2. Utilization fees
shall be calculated
for actual days elapsed on the basis of a 360-day year.
(c) Reductions in Aggregate Commitment. The Borrower may
permanently
reduce the Aggregate Commitment in whole or in part ratably
among the Lenders in
a minimum
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amount of $15,000,000 and integral multiples of $2,500,000 in
excess thereof,
upon at least two Business Days' written notice to the
Administrative Agent,
which notice shall specify the amount of any such reduction;
provided, however,
that the amount of the Aggregate Commitment may not be reduced
below the sum of
the aggregate principal amount of the outstanding Syndicated
Advances and the
aggregate outstanding L/C Obligations and Swing Line Loans.
(d) Increase of Aggregate Commitment. At any time the Borrower
may, on
the terms set forth below, request that the Aggregate Commitment
hereunder be
increased; provided, that (i) the Aggregate Commitment hereunder
at no time
shall exceed $550,000,000, (ii) the Combined Commitment at no
time shall exceed
$1,100,000,000, (iii) each such request shall be in a minimum
amount of at least
$10,000,000 and in increments of $5,000,000 in excess thereof,
(iv) an increase
in the Aggregate Commitment hereunder may only be made at a time
when no Default
or Unmatured Default shall have occurred and be continuing, (v)
each Lender
shall be offered a pro rata share of any requested increase
prior to the
Borrower, the Administrative Agent and the Syndication Agents
inviting any
additional financial institutions to become a Lender hereunder,
and (vi) no
Lender's Commitment shall be increased under this Section
2.11(d) without its
consent. In the event of such a requested increase in the
Aggregate Commitment,
any financial institution which the Borrower, the Administrative
Agent and the
Syndication Agents invite to become a Lender or to increase its
Commitment may
set the amount of its Commitment at a level agreed to by the
Borrower, the
Administrative Agent and the Syndication Agents. In the event
that the Borrower
and one or more of the Lenders (or other financial institutions)
shall agree
upon such an increase in the Aggregate Commitment (i) the
Borrower, the
Administrative Agent and each Lender or other financial
institution increasing
its Commitment or extending a new Commitment shall enter into an
amendment to
this Agreement setting forth the amounts of the Commitments, as
so increased,
providing that the financial institutions extending new
Commitments shall be
Lenders for all purposes under this Agreement, and setting forth
such additional
provisions as the Administrative Agent shall consider reasonably
appropriate and
(ii) the Borrower shall furnish, if requested, a new Note to
each financial
institution that is extending a new Commitment or increasing its
Commitment. No
such amendment shall require the approval or consent of any
Lender whose
Commitment is not being increased. Upon the execution and
delivery of such
amendment as provided above, and upon satisfaction of such other
conditions as
the Administrative Agent may reasonably specify upon the request
of the
financial institutions that are extending new Commitments
(including, without
limitation, the Administrative Agent administering the
reallocation of any
outstanding Loans ratably among the Lenders after giving effect
to each such
increase in the Aggregate Commitment, and the delivery of
certificates, evidence
of corporate authority and legal opinions on behalf of the
Borrower), this
Agreement shall be deemed to be amended accordingly.
2.12 Rates Applicable After Default.
Notwithstanding anything to the contrary contained in Section
2.8,
during the continuance of a Default or Unmatured Default no
Syndicated Advance
may be made as, converted into or continued past the end of the
applicable
Interest Period as a Eurodollar Advance. During the continuance
of a Default
upon notice given to the Borrower by the Administrative Agent,
(a) each
Syndicated Advance and Swing Line Loan shall bear interest until
paid in full at
a rate per annum equal to the then-applicable rate of interest,
as the case may
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be, plus two percent (2.0%) per annum and (b) the letter of
credit fees payable
under Section 2.20.5 shall be increased by two percent (2.0%)
per annum.
2.13 Method of Payment.
All payments of the Obligations hereunder shall be made,
without
setoff, recoupment, deduction, or counterclaim, in immediately
available funds
to the Administrative Agent at the Administrative Agent's
address specified
pursuant to Article XIII, or at any other Lending Installation
of the
Administrative Agent specified in writing by the Administrative
Agent to the
Borrower, by 1:00 p.m. (New York time) on the date when due and
shall be
remitted by the Administrative Agent to the Lenders according to
their
respective interests therein. Each payment delivered to the
Administrative Agent
for the account of any Lender shall be delivered promptly by the
Administrative
Agent to such Lender in the same type of funds that the
Administrative Agent
received at its address specified pursuant to Article XIII or at
any Lending
Installation specified in a notice received by the
Administrative Agent from
such Lender. The Administrative Agent is hereby authorized, but
is not
obligated, to charge the accounts of the Borrower maintained
with Bank of
America into which proceeds of Syndicated Advances are remitted
pursuant to
Section 2.6 for each payment of interest and fees as it becomes
due hereunder,
for each payment of principal, in accordance with the applicable
Prepayment
Notice or when otherwise due and payable in accordance with the
terms hereof,
and for each payment of Reimbursement Obligations when due and
payable in
accordance with the terms hereof.
2.14 Evidence of Debt (Optional Notes); Telephonic Notices.
(a) Evidence of Debt (Optional Notes).
(i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of
the Borrower
to such Lender resulting from each Loan or L/C Obligation made
by such
Lender from time to time, including the amounts of principal and
interest
payable and paid to such Lender from time to time hereunder.
(ii) The Administrative Agent shall also maintain accounts
in which it will record (a) the amount of each Loan made and
each L/C
Obligation incurred hereunder, and, to the extent applicable,
the Type
thereof and the interest period with respect thereto, (b) the
amount of any
principal or interest due and payable or to become due and
payable from the
Borrower to each Lender hereunder and (c) the amount of any sum
received by
the Administrative Agent hereunder from the Borrower and each
Lender's
share thereof.
(iii) The entries in the accounts maintained pursuant to
clauses (i) and (ii) above shall be prima facie evidence of the
existence
and amounts of the Obligations therein recorded; provided,
however, that
the failure of the Administrative Agent or any Lender to
maintain such
accounts or any error therein shall not in any manner affect the
obligation
of the Borrower to repay the Obligations in accordance with
their terms. In
the event of a conflict between the accounts maintained by
the
Administrative
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Agent and the accounts maintained by a Lender, the accounts
maintained by
the Administrative Agent shall control in the absence of
manifest error.
(iv) Any Lender may request that its Loans be evidenced by
one or more Notes. In such event, the Borrower shall execute and
deliver to
such Lender the applicable Note or Notes payable to the order of
such
Lender. Thereafter, the Loans evidenced by any such Note and
interest
thereon shall at all times (including after any assignment
pursuant to
Section 12.3) be represented by one or more Notes payable to the
order of
the payee named therein or any assignee pursuant to Section
12.3, except to
the extent that any such Lender or assignee subsequently returns
any such
Note for cancellation and requests that such Loans once again be
evidenced
as described in clauses (i) and (ii) above.
(b) Telephonic Notices. The Borrower hereby authorizes the
Lenders and
the Administrative Agent to extend, convert or continue
Syndicated Advances and
effect selections of Types of Syndicated Advances based on
telephonic notices
made by any person or persons the Administrative Agent in good
faith believes to
be acting on behalf of the Borrower. The Borrower agrees to
deliver promptly to
the Administrative Agent a written confirmation, if such
confirmation is
requested by the Administrative Agent or any Lender, of each
telephonic notice
signed by an Authorized Officer. If the written confirmation
differs in any
material respect from the action taken by the Administrative
Agent and the
Lenders, the records of the Administrative Agent of the relevant
telephonic
notice shall govern absent manifest error.
2.15 Notification of Syndicated Advances, Interest Rates,
Prepayments
and Commitment Reductions.
Promptly after receipt thereof, the Administrative Agent will
notify
each Lender of the contents of each Aggregate Commitment
reduction notice,
Borrowing Notice, Conversion/Continuation Notice and Prepayment
Notice received
by it hereunder. The Administrative Agent will notify each
Lender of the
interest rate applicable to each Eurodollar Advance promptly
upon determination
of such interest rate and will give each Lender prompt notice of
each change in
the Alternate Base Rate.
2.16 Lending Installations.
Each Lender may book its Loans at any one or more Lending
Installations selected by such Lender and may change any such
Lending
Installation from time to time. All terms of this Agreement
shall apply to any
such Lending Installation and any Notes requested by such Lender
shall be deemed
held by such Lender for the benefit of such Lending
Installation. Each Lender
may, by written or telex notice to the Administrative Agent and
the Borrower,
designate a Lending Installation through which Loans will be
made by it and for
whose account Loan payments are to be made.
2.17 Non-Receipt of Funds by the Administrative Agent.
Unless the Borrower or a Lender, as the case may be, notifies
the
Administrative Agent prior to the date on which it is scheduled
to make payment
to the Administrative Agent of (a) in the case of a Lender, the
proceeds of a
Loan or (b) in the case of the Borrower, a payment
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of principal, interest or fees to the Administrative Agent for
the account of
the Lenders, that it does not intend to make such payment, the
Administrative
Agent may assume that such payment has been made. The
Administrative Agent may,
but shall not be obligated to, make the amount of such payment
available to the
intended recipient in reliance upon such assumption. If such
Lender or the
Borrower, as the case may be, has not in fact made such payment
to the
Administrative Agent, the recipient of such payment shall, on
demand by the
Administrative Agent, repay to the Administrative Agent the
amount so made
available together with interest thereon in respect of each day
during the
period commencing on the date such amount was so made available
by the
Administrative Agent until the date the Administrative Agent
recovers such
amount at a rate per annum equal to (a) in the case of repayment
by a Lender,
the Federal Funds Effective Rate for such day or (b) in the case
of repayment by
the Borrower, the interest rate applicable to the relevant
Loan.
2.18 Withholding Tax Exemption.
At least five Business Days prior to the first date on which
interest
or fees are payable hereunder for the account of any Lender,
each Lender that is
not incorporated under the laws of the United States of America,
or a state
thereof, agrees that it will deliver to each of the Borrower and
the
Administrative Agent two duly completed copies of United States
Internal Revenue
Service Form W-8BEN or W-8ECI, or successor applicable form,
certifying in
either case that such Lender is entitled to receive payments
under this
Agreement and the Notes (if requested) without deduction or
withholding of any
United States federal income taxes. Each Lender which so
delivers a Form W-8BEN
or W-8ECI, or successor applicable form, further undertakes to
deliver to each
of the Borrower and the Administrative Agent two additional
copies of such form
(or any successor form or related form as may from time to time
be required
under applicable law) on or before the date that such form
expires or becomes
obsolete or after the occurrence of any event requiring a change
in the most
recent forms so delivered by it, and such amendments thereto or
extensions or
renewals thereof as may be reasonably requested by the Borrower
or the
Administrative Agent, in each case certifying that such Lender
is entitled to
receive payments under this Agreement and the Notes (if
requested) without
deduction or withholding of any United States federal income
taxes, unless an
event (including without limitation any change in treaty, law or
regulation) has
occurred prior to the date on which any such delivery would
otherwise be
required which renders all such forms inapplicable or which
would prevent such
Lender from duly completing and delivering any such form with
respect to it and
such Lender advises the Borrower and the Administrative Agent
that it is not
capable of receiving payments without any deduction or
withholding of United
States federal income tax.
2.19 Termination.
All unpaid Obligations shall be paid in full by the Borrower on
the
Facility Termination Date; provided, however, that nothing in
this Section 2.19
shall be construed as limiting or modifying the obligation of
the Borrower to
repay any or all of the outstanding Obligations at any earlier
time in
accordance with the terms of this Agreement.
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<PAGE>
2.20 Letter of Credit Facility.
2.20.1 Obligation to Issue. Subject to the terms and conditions
of
this Agreement and in reliance upon the representations,
warranties and
covenants of the Borrower herein set forth, each Issuing Lender
hereby severally
agrees to issue for the account of the Borrower through such
Issuing Lender's
branches as it and the Borrower may jointly agree, one or more
Letters of Credit
denominated in Dollars in accordance with this Section 2.20,
from time to time
during the period, commencing on the date hereof and ending on
the third
Business Day prior to the Facility Termination Date; provided,
however, no
Issuing Lender shall have any obligation to issue any Letter of
Credit if, after
taking into account such issuance, the aggregate L/C Obligations
outstanding
under Letters of Credit issued by it would exceed the amount
specified on
Schedule 2.20 next to its name. Schedule 2.20 may be updated
from time to time
by the Administrative Agent in connection with the addition of
any Issuing
Lender.
2.20.2 Types and Amounts. No Issuing Lender shall have any
obligation
to and no Issuing Lender shall:
(i) issue any Letter of Credit if on the date of issuance,
before
or after giving effect to the Letter of Credit requested
hereunder, (a) the
amount of the Syndicated Advances, the L/C Obligations and the
Swing Line Loans
outstanding at such time would exceed the Aggregate Commitment
or (b) the
aggregate outstanding amount of the L/C Obligations would exceed
$150,000,000;
or
(ii) issue any Letter of Credit which has an expiration date
later than the date which is the earlier of one (1) year after
the date of
issuance thereof or three (3) Business Days immediately
preceding the Facility
Termination Date.
2.20.3 Conditions. In addition to being subject to the
satisfaction of
the conditions contained in Sections 4.1 and 4.2, the obligation
of an Issuing
Lender to issue any Letter of Credit is subject to the
satisfaction in full of
the following conditions:
(i) the Borrower shall have delivered to the applicable
Issuing
Lender at such times and in such manner as such Issuing Lender
may reasonably
prescribe, a written request for issuance of such Letter of
Credit, duly
executed applications for such Letter of Credit, and such other
documents,
instructions and agreements as may be reasonably required
pursuant to the terms
thereof, and the proposed Letter of Credit shall be reasonably
satisfactory to
such Issuing Lender as to form and content; and
(ii) as of the date of issuance no order, judgment or decree
of
any court, arbitrator or Governmental Authority shall purport by
its terms to
enjoin or restrain the applicable Issuing Lender from issuing
such Letter of
Credit and no law, rule or regulation applicable to such Issuing
Lender and no
request or directive (whether or not having the force of law)
from a
Governmental Authority with jurisdiction over such Issuing
Lender shall prohibit
or request that such Issuing Lender refrain from the issuance of
Letters of
Credit generally or the issuance of that Letter of Credit.
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<PAGE>
If any provision in a letter of credit application delivered in
connection with
the foregoing is inconsistent with or more restrictive than a
provision
contained in this Agreement, the provisions contained in this
Agreement shall
control.
2.20.4 Procedure for Issuance of Letters of Credit.
(a) Subject to the terms and conditions of this Section 2.20
and
provided that the applicable conditions set forth in Sections
4.
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