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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).
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"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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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 4.1 and 4.2 hereof
have been satisfied, the applicable Issuing
Lender
