EXHIBIT
10.9
$200,000,000
AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT
Dated as of October 13,
2005
among
RAYMOND JAMES FINANCIAL,
INC.,
as Borrower,
THE LENDERS NAMED HEREIN,
JPMORGAN CHASE BANK,
N.A.,
as Administrative Agent,
CITIBANK, N.A.,
as Syndication Agent,
BANK OF NEW YORK,
as Co-Documentation
Agent,
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as Co-Documentation Agent
and
CALYON NEW YORK BRANCH,
as Co-Documentation Agent
TABLE OF
CONTENTS
2.4.Facility
Fee; Reductions in Aggregate Commitment
2.5.Minimum
Amount of Each Advance
2.6.Optional
Principal Payments
2.7.Method of
Selecting Types and Interest Periods for New Advances
2.8.Conversion
and Continuation of Outstanding Advances
2.9.Changes in
Interest Rate, etc
2.10.Rates
Applicable After Default
2.13.Interest
Payment Dates; Interest and Fee Basis
2.14.Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions
2.15.Lending
Installations
2.16.Non-Receipt of Funds by the
Agent
2.17.Noteless
Agreement; Evidence of Indebtedness
2.18.Extension
of Facility Termination Date
2.19.Replacement of Lender
3.2.Changes in
Capital Adequacy Regulations
3.3.Availability of Types of Advances
3.4.Funding
Indemnification
3.6.Lender
Statements; Survival of Indemnity
REPRESENTATIONS
AND WARRANTIES
5.1.Corporate
Existence; Conduct of Business
5.2.Authorization and Validity
5.3.Compliance
with Laws and Contracts
5.4.Governmental Consents
5.6.Material
Adverse Change
5.8.Litigation
and Contingent Obligations
5.12.Federal
Reserve Regulations
5.14.Ownership
of Properties
6.8.Maintenance
of Properties
6.10.Ownership
of Subsidiaries
6.14.Investments and Acquisitions
6.15.Contingent
Obligations
6.18.Change in
Corporate Structure; Fiscal Year
6.19.Inconsistent Agreements
6.20.Financial
Covenants.
6.20.1Minimum
Tangible Net Worth
6.20.2Double
Leverage Ratio
6.20.5RJA/RJFS
Excess Net Capital
7.1.Representation or Warranty
7.6.Insolvency;
Voluntary Proceedings
7.7.Involuntary
Proceedings
7.12.Broker-Dealer License
ACCELERATION,
WAIVERS, AMENDMENTS AND REMEDIES
8.3.Preservation of Rights
9.1.Survival of
Representations
9.2.Governmental Regulation
9.5.Several
Obligations; Benefits of this Agreement
9.6.Expenses;
Indemnification
9.9.Severability of Provisions
9.10.Nonliability of Lenders
9.15.CONSENT TO
JURISDICTION
9.16.WAIVER OF
JURY TRIAL
10.1.Appointment; Nature of
Relationship
10.4.No
Responsibility for Loans, Recitals, etc
10.5.Action on
Instructions of Lenders
10.6.Employment
of Agents and Counsel
10.7.Reliance
on Documents; Counsel
10.8.Agent's
Reimbursement and Indemnification
10.11.Lender
Credit Decision
10.14.Delegation to Affiliates
10.15.Syndication Agent, Co-Documentation
Agents, etc
BENEFIT OF
AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1.Successors
and Assigns
12.2.1Permitted
Participants; Effect
12.3.1Permitted
Assignments
12.3.2Additional Conditions
12.4.Dissemination of Information
EXHIBITS
Exhibit
A Form of Borrowing/Election Notice
Exhibit
B Compliance Certificate
Exhibit
C Assignment and Assumption
SCHEDULES
Schedule
I - Material Subsidiaries
Schedule
II - Existing Indebtedness
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT, dated as of October 13, 2005, is among RAYMOND JAMES
FINANCIAL, INC., a Florida corporation, the Lenders (as hereinafter
defined), JPMORGAN CHASE BANK, N.A., individually and as
administrative agent (the “ Agent ”), CITIBANK,
N.A., individually and as syndication agent (the “
Syndication Agent ”), BANK OF NEW YORK, individually
and as co-documentation agent (“ Co-Documentation
Agent ”), WELLS FARGO BANK, NATIONAL ASSOCIATION,
individually and as co-documentation agent (“
Co-Documentation Agent ”), and CALYON NEW YORK BRANCH,
individually and as co-documentation agent (“
Co-Documentation Agent ”).
R E C I
T A L S
:
A. The Borrower has requested the Lenders to
provide a revolving credit facility to it in the aggregate
principal amount of $200,000,000, the proceeds of which the
Borrower will use for general corporate purposes, including without
limitation friendly acquisitions, share repurchases and asset
purchases; and
B. The Lenders are willing to extend such credit
facility on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual
covenants and undertakings herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Borrower, the Lenders and the Agent hereby
agree as follows:
DEFINITIONS
As used in this Agreement:
“Acquisition” means any transaction,
or any series of related transactions, consummated on or after the
date of this Agreement, 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 limited
liability company, or division or line of business thereof, 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 ownership interests of a partnership or limited
liability company.
“Administrative Questionnaire” means
an administrative questionnaire in a form supplied by the
Agent.
“Advance” means a borrowing pursuant
to Section 2.1 consisting of the aggregate amount of the
several Loans made on the same Borrowing Date by the Lenders to the
Borrower of the same Type and, in the case of Eurodollar Advances,
for the same Interest Period.
“Advisers Act” means the Investment
Advisers Act of 1940, as amended.
“Affected Lender” is defined in
Section 2.19 .
“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 10% 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.
“Agent” means JPMorgan Chase Bank,
N.A. in its capacity as administrative agent for the Lenders
pursuant to Article X , and not in its individual capacity
as a Lender, and any successor administrative agent appointed
pursuant to Article X .
“Agents” means and includes the
Agent, the Syndication Agent and the Co-Documentation
Agents.
“Aggregate Commitment” means the
aggregate of the Commitments of all the Lenders hereunder. The
current Aggregate Commitment is $200,000,000.
“Aggregate Debit Items” means, at
any time, “aggregate debit items” computed in
accordance with Rule 15c3-1.
“Aggregate Indebtedness” means, at
any time, “aggregate indebtedness” computed in
accordance with Rule 15c3-1.
“Agreement” means this Revolving
Credit Agreement, as it may be amended, modified or restated and in
effect from time to time.
“Agreement Accounting Principles”
means generally accepted accounting principles as in effect from
time to time, applied in a manner consistent with those used in
preparing the Financial Statements.
“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, or (b) the sum of the Federal Funds
Effective Rate for such day plus 1/2% per annum.
“Article” means an article of this
Agreement unless another document is specifically
referenced.
“Assignment and Assumption” means an
assignment and assumption entered into by a Lender and an assignee
(with the consent of any party whose consent is required by
Section 12.3 ), and accepted by the Agent, in the form of
Exhibit C or any other form approved by the
Agent.
“Authorized Officer” means any of
the chief executive officer, president, chief financial officer or
controller of the Borrower, acting singly.
“Bankruptcy Code” means Title 11,
United States Code, sections 1 et seq ., as
the same may be amended from time to time, and any successor
thereto or replacement therefor which may be hereafter
enacted.
“Borrower” means Raymond James
Financial, Inc., a Florida corporation, and its successors and
assigns.
“Borrowing Date” means a date on
which an Advance is made hereunder.
“Borrowing/Election Notice” is
defined in Section 2.7 .
“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 for the conduct of substantially all
of their commercial lending activities, interbank wire transfers
can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market, and (b) for
all other purposes, a day (other than a Saturday or Sunday) on
which banks generally are open in New York for the conduct of
substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire
system.
“CEA” means the Commodity Exchange
Act, as amended from time to time.
“CFTC” means the Commodities Future
Trading Commission and any successor entity.
“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 Agreement Accounting Principles.
“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 Agreement
Accounting Principles.
“Change” is defined in Section
3.2 .
“Change in Control” means the
acquisition by any Person, or two or more Persons acting in
concert, including without limitation any acquisition effected by
means of a merger or consolidation, of beneficial ownership (within
the meaning of Rule 13d-3 of the Commission under the Exchange Act)
of 30% or more of the outstanding shares of voting stock of the
Borrower. For purposes of making such calculation, an
“acquisition” shall not include a transfer of shares by
a shareholder or his estate to members of his immediate family
(spouse, children, grandchildren, spouses of children or
grandchildren) or to trusts for the benefit of the shareholder or
members of his immediate family.
“Closing Date” is defined in
Section 4.1 .
“Code” means the Internal Revenue
Code of 1986, as amended, reformed or otherwise modified from time
to time.
“Commission” means the Securities
and Exchange Commission and any successor entity.
“Commitment” means, for each Lender,
the obligation of such Lender to make Loans not exceeding the
amount set forth opposite its signature below and as set forth in
any assignment which has become effective pursuant to Section
12.3 , as such amount may be modified from time to time
pursuant to the terms hereof.
“Compliance Certificate” means a
certificate executed by an Authorized Officer substantially in the
form of Exhibit B hereto.
“Consolidated” or
“consolidated”, when used in connection with any
calculation, means a calculation to be determined on a consolidated
basis for the Borrower and its Subsidiaries in accordance with
Agreement Accounting Principles.
“Contingent Obligation” of a Person
means any agreement, undertaking or arrangement by which such
Person assumes, guarantees, endorses, contingently agrees to
purchase or provide funds for the payment of, or otherwise becomes
or is contingently liable upon, the obligation or liability of any
other Person, or agrees 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 against loss,
including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such
Person as a general partner of a partnership with respect to the
liabilities of the partnership.
“Controlled Group” means all members
of a controlled group of corporations or other business entities
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.
“Default” means an event described
in Article VII .
“Double Leverage Ratio” means, at
any time, as calculated for the Borrower on a parent-only basis in
accordance with Agreement Accounting Principles, the ratio of (a)
investment in Subsidiaries to (b) the shareholders' equity of the
Borrower.
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended from time to
time.
“Environmental Laws” means any and
all federal, state, local and foreign statutes, laws, judicial
decisions, regulations, ordinances, rules, judgments, orders,
decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental
restrictions relating to (a) the protection of the environment, (b)
the effect of the environment on human health, (c) emission,
discharges or releases of pollutants, contaminants, hazardous
substances or wastes into surface water, ground water or land, or
(d) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants,
contaminants, hazardous substances or wastes or the clean-up or
other remediation thereof.
“Eurodollar Advance” means an
Advance which, except as otherwise provided in Section 2.10
, bears interest at the Eurodollar Rate.
“Eurodollar Base Rate” means, with
respect to a Eurodollar Advance for the relevant Interest Period,
the applicable British Bankers' Association LIBOR rate for deposits
in U.S. dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period, provided that, if no
such British Bankers' Association LIBOR rate is available to the
Agent, the applicable Eurodollar Base Rate for the relevant
Interest Period shall instead be the rate determined by the Agent
to be the rate at which JPMorgan Chase Bank, N.A. or one of its
Affiliate banks offers to place deposits in U.S. dollars with
first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period, in the approximate amount of JPMorgan
Chase Bank, N.A.’s relevant Eurodollar Loan and having a
maturity equal to such Interest Period.
“Eurodollar Loan” means a Loan
which, except as otherwise provided in Section 2.10 , bears
interest at the Eurodollar Rate.
“Eurodollar Rate” means, with
respect to a Eurodollar Advance for the relevant Interest Period,
the sum of (a) the quotient of (i) the Eurodollar Base Rate
applicable to such Interest Period, divided by (ii) one minus the
Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (b) (i) 1.00% per annum during any period
when the outstanding principal amount of the Advances is less than
50% of the Aggregate Commitment and (ii) 1.125% per annum during
any period when the outstanding principal amount of the Advances is
greater than or equal to 50% of the Aggregate
Commitment.
“Excess Net Capital” means, at any
time, “excess net capital” computed in accordance with
Rule 15c3-1.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Excluded Taxes” means, in the case
of each Lender or applicable Lending Installation and the Agent,
taxes imposed on its overall net income, and franchise taxes
imposed on it by (a) the jurisdiction under the laws of which such
Lender or the Agent is incorporated or organized or (b) any
jurisdiction in which such Lender or the Agent maintains a lending
office.
“Extension Date” is defined in
Section 2.18 .
“Extension Period” is defined in
Section 2.18 .
“Extension Request” is defined in
Section 2.18 .
“FOCUS Report” means, for any
Person, the Financial and Operational Combined Uniform Single
Report required to be filed on a monthly or quarterly basis, as the
case may be, with the Commission or the NYSE, or any report that is
required in lieu of such report.
“Facility Fee” is defined in
Section 2.4 .
“Facility Termination Date” means
October 11, 2006 or any later date as may be specified as the
Facility Termination Date in accordance with Section 2.18 or
any earlier date on which the Aggregate Commitment is reduced to
zero or otherwise terminated pursuant to the terms
hereof.
“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 Business Day, the
average of the quotations at approximately 11:00 a.m. (New York
time) on such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by the
Agent in its sole discretion.
“Financial Statements” is defined in
Section 5.5 .
“Fiscal Quarter” means one of the
four three-month accounting periods comprising a Fiscal
Year.
“Fiscal Year” means the twelve-month
accounting period ending on the last Friday in September of each
year.
“Floating Rate Advance” means an
Advance which, except as otherwise provided in Section 2.10
, bears interest at the Alternate Base Rate.
“Floating Rate Loan” means a Loan
which, except as otherwise provided in Section 2.10 , bears
interest at the Alternate Base Rate.
“Governmental Authority” means any
government (foreign or domestic) or any state or other political
subdivision thereof or any governmental body, agency, authority,
department or commission (including without limitation any taxing
authority or political subdivision) or any instrumentality or
officer thereof (including without limitation any court or
tribunal) exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government and any
corporation, partnership or other entity directly or indirectly
owned or controlled by or subject to the control of any of the
foregoing.
“Indebtedness” of a Person means
such Person’s (a) obligations for borrowed money, (b)
obligations representing the deferred purchase price of Property or
services (other than accounts payable 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, or other instruments,
(e) Capitalized Lease Obligations, (f) Contingent Obligations, (g)
obligations for which such Person is obligated pursuant to or in
respect of a Letter of Credit, and (h) any other obligation for
borrowed money which in accordance with Agreement Accounting
Principles would be shown as a liability on the consolidated
balance sheet of such Person.
“Interest Period” means, with
respect to a Eurodollar Advance, a period of one, two or three
months commencing on a Business Day selected by the Borrower
pursuant to this Agreement. Such Interest Period shall end on the
day which corresponds numerically to such date one, two or three
months thereafter; provided , however , that if there
is no such numerically corresponding day in such next, second or
third succeeding month, such Interest Period shall end on the last
Business Day of such next, second or third succeeding month. If an
Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding
Business Day; provided , however , that if said next
succeeding Business Day falls in a new calendar month, such
Interest Period shall end on the immediately preceding Business
Day.
“Investment” of the Borrower or a
Subsidiary means any (a) loan, advance (other than (i) commission,
bonus, travel and similar advances to officers and employees made
in the ordinary course of business and (ii) non-recourse loans to
directors, officers and employees of the Borrower or its
Subsidiaries for investments in Borrower-sponsored investment
programs), extension of credit (other than accounts receivable and
customer loans secured by customer securities in each case arising
in the ordinary course of business on terms customary in the trade)
or contribution of capital by such Person; (b) stocks, bonds,
mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; (c) any deposit accounts and
certificate of deposit owned by such Person; and (d) structured
notes, derivative financial instruments and other similar
instruments or contracts owned by such Person; provided ,
however , that in regard to clauses (b), (c) and (d),
“Investment” shall not include any such securities,
accounts or instruments owned or acquired by the Borrower or its
Subsidiaries in the ordinary course of its business as heretofore
conducted, including but not limited to the market making
activities of RJA.
“Investment Company Act” means the
Investment Company Act of 1940, as amended.
“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 or the Agent, the office, branch, subsidiary or
affiliate of such Lender or the Agent listed on the signature pages
hereof or otherwise selected by such Lender or the Agent pursuant
to Section 2.15 .
“Letter of Credit” of a Person means
a letter of credit or similar instrument which is issued upon the
application of such Person or upon which such Person is an account
party or for which such Person is in any way liable.
“Lien” means any security interest,
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, with respect to a
Lender, such Lender’s loan made pursuant to Article II
(or any conversion or continuation thereof).
“Loan Documents” means this
Agreement, any Notes issued pursuant to Section 2.17 and the
other documents and agreements contemplated hereby and executed by
the Borrower in favor of the Agent or any Lender.
“MSRB” means the Municipal
Securities Rulemaking Board and any successor entity.
“Margin Stock” has the meaning
assigned to that term under Regulation U.
“Material Adverse Effect” means a
material adverse effect on (a) the business, Property, condition
(financial or otherwise) or results of operations of the Borrower
and its Subsidiaries taken as a whole, (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
the rights or remedies of the Agent or the Lenders
thereunder.
“Material
Subsidiary” means (a) any of the Subsidiaries listed on
Schedule I hereto and (b) in the case of any specified
condition or event, any other Subsidiary or group of other
Subsidiaries (i) each of which has suffered such condition or event
to occur and (ii) that in the aggregate represents five percent
(5%) or more of the net revenues or the consolidated assets of the
Borrower and its Subsidiaries, as reflected in the then most recent
financial statements delivered pursuant to Section 6.1(a) or
(b) .
“NASD” means the National
Association of Securities Dealers, Inc.
“NYSE” means the New York Stock
Exchange, Inc.
“Net Capital” means, at any time,
“net capital” computed in accordance with Rule
15c3-1.
“Net Income” means, for any
computation period, with respect to the Borrower on a consolidated
basis with its Subsidiaries (other than any Subsidiary which is
restricted from declaring or paying dividends or otherwise
advancing funds to its parent whether by contract or otherwise),
cumulative net income earned during such period as determined in
accordance with Agreement Accounting Principles.
“Non-U.S. Lender” is defined in
Section 3.5(iv) .
“Note” means any promissory note
issued at the request of a Lender pursuant to Section 2.17
.
“Obligations” means all unpaid
principal of and accrued and unpaid interest on the Loans, all
accrued and unpaid fees and all expenses, reimbursements,
indemnities and other obligations of the Borrower to the Lenders or
to any Lender, the Agent or any indemnified party arising under the
Loan Documents.
“Other Taxes” is defined in
Section 3.5(ii) .
“PBGC” means the Pension Benefit
Guaranty Corporation and any successor thereto.
“Participants” is defined in
Section 12.2.1 .
“Payment Date” means the last day of
each March, June, September and December.
“Person” means any natural person,
corporation, firm, joint venture, partnership, limited liability
company, association, enterprise, trust or other entity or
organization, or any Governmental Authority.
“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.
“Prime Rate” means the rate of
interest per annum publicly announced from time to time by JPMorgan
Chase Bank, N.A. as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly
announced as being effective.
“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.
“pro-rata” means, when used with
respect to a Lender, and any described aggregate or total amount,
an amount equal to such Lender’s pro-rata share or portion
based on its percentage of the Aggregate Commitment or, if the
Aggregate Commitment has been terminated, its percentage of the
aggregate principal amount of outstanding Advances.
“RJA” means Raymond James &
Associates, Inc. and any successor entity.
“RJFS” means Raymond James Financial
Services, Inc. and any successor entity.
“Register” is defined in Section
12.3.4 .
“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 depositary
institutions.
“Regulation T” means Regulation T of
the Board of Governors of the Federal Reserve System as from time
to time in effect and shall include any successor or other
regulation or official interpretation of such Board of Governors
relating to the extension of credit by securities brokers and
dealers for the purpose of purchasing or carrying margin stocks
applicable to such Persons.
“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 such Persons.
“Regulation X” means Regulation X of
the Board of Governors of the Federal Reserve System as from time
to time in effect and shall include any successor or other
regulation or official interpretation of said Board of Governors
relating to the extension of credit by the specified lenders for
the purpose of purchasing or carrying margin stocks applicable to
such Persons.
“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 has 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 , 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 in
the aggregate having at least 51% of the Aggregate Commitment or,
if the Aggregate Commitment has been terminated, Lenders in the
aggregate holding at least 51% of the aggregate unpaid principal
amount of the outstanding Advances.
“Reserve Requirement” means, with
respect to an Interest Period, the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other
reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
“Risk-Based Capital Guidelines” is
defined in Section 3.2 .
“Rule 15c3-1” means Rule 15c3-1 of
the General Rules and Regulations as promulgated by the Commission
under the Exchange Act, as such rule may be amended from time to
time, or any rule or regulation of the Commission which replaces
Rule 15c3-1.
“Rule 15c3-3” means Rule 15c3-3 of
the General Rules and Regulations as promulgated by the Commission
under the Exchange Act, as such rule may be amended from time to
time, or any rule or regulation of the Commission which replaces
Rule 15c3-3.
“SIPA” means the Security Investor
Protection Act of 1970, as amended.
“SIPC” means the Securities Investor
Protection Corporation or any successor entity.
“Section” means a numbered section
of this Agreement, unless another document is specifically
referenced.
“Self-Regulatory Organization” has
the meaning assigned to such term in Section 3(a)(26) of the
Exchange Act.
“Single Employer Plan” means a Plan
maintained by the Borrower or any member of the Controlled Group
for employees of the Borrower or any member of the Controlled
Group.
“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, (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, or (c) any other
corporation or entity which for financial reporting purposes is
consolidated with the Borrower in accordance with Agreement
Accounting Principles. 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 the Borrower and its Subsidiaries,
Property which (a) represents more than 10% of the consolidated
assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its
Subsidiaries as at the beginning of the twelve-month period ending
with the month in which such determination is made, or (b) is
responsible for more than 15% of the consolidated net sales or Net
Income of the Borrower and its Subsidiaries as reflected in the
financial statements referred to in clause (a) above.
“Tangible Net Worth” means, at any
date, the consolidated stockholders' equity of the Borrower and its
consolidated Subsidiaries determined in accordance with Agreement
Accounting Principles, less their consolidated Intangible Assets,
all determined as of such date. For purposes of this definition,
“Intangible Assets” means the amount (to the extent
reflected in determining such consolidated stockholders' equity) of
(i) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going concern
business made within twelve months after the acquisition of such
business) subsequent to June 30, 1999 in the book value of any
asset owned by the Borrower or a consolidated Subsidiary, and (ii)
all unamortized debt discount and expense, unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade names,
copyrights, organization or developmental expenses and other
intangible items.
“Taxes” means any and all present or
future taxes, duties, levies, imposts, deductions, charges or
withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded Taxes.
“Transferee” is defined in
Section 12.4 .
“Type” means, with respect to any
Advance, its nature as a Floating Rate Advance or a Eurodollar
Advance.
“Unfunded Liabilities” means the
amount (if any) by which the present value of all vested and
unvested accrued benefits under all Single Employer Plans exceeds
the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date
for such Plans using PBGC actuarial assumptions for single employer
plan terminations.
“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 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,
limited liability company, association, joint venture or similar
business organization 100% of the ownership interests having
ordinary voting power of which shall at the time be so owned or
controlled.
The foregoing definitions shall be equally
applicable to both the singular and plural forms of the defined
terms.
THE CREDITS
2.1.
Advances. (a) 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, to make Loans to the Borrower from time to time in
amounts not to exceed in the aggregate at any one time outstanding
the amount of its Commitment. Subject to the terms of this
Agreement, the Borrower may borrow, repay and reborrow Advances at
any time prior to the Facility Termination Date. The Commitments to
lend hereunder shall expire on the Facility Termination
Date.
(b) The Borrower hereby agrees that if at any time,
as a result of reductions in the Aggregate Commitment pursuant to
Section 2.4 or otherwise, the aggregate balance of the Loans
exceeds the Aggregate Commitment, the Borrower shall repay
immediately its then outstanding Loans in such amount as may be
necessary to eliminate such excess.
(c) Any outstanding Advances and all other unpaid
Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
2.2.
Ratable Loans. Each Advance
hereunder shall consist of Loans made from the several Lenders
ratably in proportion to the ratio that their respective
Commitments bear to the Aggregate Commitment.
2.3.
Types of Advances. The Advances
may be Floating Rate Advances or Eurodollar Advances, or a
combination thereof, selected by the Borrower in accordance with
Sections 2.7 and 2.8.
2.4.
Facility Fee; Reductions in
Aggregate Commitment. (a)
The Borrower agrees to pay to the Agent for the account of each
Lender a facility fee (the “Facility Fee”) in an amount
equal to 0.125% per annum times the daily average Commitment of
such Lender (regardless of usage) from the date hereof to and
including the Facility Termination Date, payable quarterly in
arrears on the last Business Day of each calendar quarter hereafter
and on the Facility Termination Date. All accrued Facility Fees
shall be payable on the effective date of any termination of the
obligations of the Lenders to make Loans hereunder.
(b) The Borrower may permanently reduce the
Aggregate Commitment in whole, or in part ratably among the Lenders
in a minimum aggregate amount of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof, upon at least five
Business Days’ written notice to the 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 aggregate principal amount of the
outstanding Advances.
2.5.
Minimum Amount of Each Advance.
Each Eurodollar Advance shall be in the minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess thereof),
and each Floating Rate Advance shall be in the minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess thereof);
provided, however, that (a) any Floating Rate Advance may be in the
amount of the unused Aggregate Commitment and (b) in no event shall
more than five (5) Eurodollar Advances be permitted to be
outstanding at any time.
2.6.
Optional Principal Payments. The
Borrower may from time to time pay, without penalty or premium, all
outstanding Floating Rate Advances, or, in a minimum aggregate
amount of $5,000,000 or any integral multiple of $1,000,000 in
excess thereof, any portion of the outstanding Floating Rate
Advances upon two Business Days’ prior notice to the Agent.
The Borrower may from time to time pay, subject to the payment of
any funding indemnification amounts required by Section 3.4 but
without penalty or premium, all outstanding Eurodollar Advances,
or, in a minimum aggregate amount of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof, any portion of the
outstanding Eurodollar Advances upon three Business Days' prior
notice to the Agent.
2.7.
Method of Selecting Types and
Interest Periods for New Advances. The Borrower shall select the
Type of Advance and, in the case of each Eurodollar Advance, the
Interest Period applicable to each Advance from time to time. The
Borrower shall give the Agent irrevocable telephonic notice not
later than 11:00 a.m. (New York time) at least one Business Day
before the Borrowing Date of each Floating Rate Advance and three
Business Days before the Borrowing Date for each Eurodollar
Advance, such notice to be promptly confirmed in writing
substantially in the form of Exhibit A (a “Borrowing/Election
Notice”), specifying:
(a) the Borrowing Date of such Advance, which shall
be a Business Day;
(b) the aggregate amount of such
Advance;
(c) the Type of Advance selected;
(d) in the case of each Eurodollar Advance, the
Interest Period applicable thereto, which shall end on or prior to
the Facility Termination Date; and
(e) the Borrower’s account to which the funds
constituting the Advance should be transferred.
Not later than
1:00 p.m. (New York time) on each Borrowing Date, each Lender shall
make available its Loan or Loans, in funds immediately available in
New York, to the Agent at its address specified pursuant to
Article XIII . The Agent will make the funds so received
from the Lenders available to the Borrower at the Agent’s
aforesaid address.
2.8.
Conversion and Continuation of
Outstanding Advances. Floating Rate Advances shall continue as
Floating Rate Advances unless and until such Floating Rate Advances
are converted into Eurodollar Advances pursuant to this Section 2.8
or are repaid in accordance with Section 2.6. 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 (x) such Eurodollar Advance is or was repaid in
accordance with Section 2.6 or (y) the Borrower shall have given
the Agent a Borrowing/Election Notice requesting that, at the end
of such Interest Period, such Eurodollar Advance continue as a
Eurodollar Advance for the same or another Interest Period. Subject
to the terms of Section 2.5, the Borrower may elect from time to
time to convert all or any part of a Floating Rate Advance into a
Eurodollar Advance. The Borrower shall give the Agent an
irrevocable Borrowing/Election Notice of each conversion of a
Floating Rate Advance into a Eurodollar Advance or of the
continuation of a Eurodollar Advance not later than 11:00 a.m. (New
York time) at least three Business Days prior to the date of the
requested conversion or continuation, specifying:
(a) the requested date of such conversion or
continuation, which shall be a Business Day;
(b) the aggregate amount and Type of the Advance
which is to be converted or continued; and
(c) the amount of such Advance which is to be
converted into or continued as a Eurodollar Advance and the
duration of the Interest Period applicable thereto, which shall end
on or prior to the Facility Termination Date.
2.9.
Changes in Interest Rate, etc.
Each Floating Rate Advance shall bear interest on the outstanding
principal amount thereof, for each day from and including the date
such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section
2.8, to but excluding the date it is paid or is converted into a
Eurodollar Advance pursuant to Section 2.8, at a rate per annum
equal to the Alternate Base Rate. Changes in the rate of interest
on that portion of any 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 on
the outstanding principal amount thereof 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 interest
rate determined by the Agent as applicable to such Eurodollar
Advance based upon the Borrower's selections under Sections 2.7 and
2.8 and otherwise in accordance with the terms hereof. No Interest
Period may end after the Facility Termination Date.
2.10.
Rates Applicable After Default.
Notwithstanding anything to the contrary contained in Section 2.7
or 2.8, during the continuance of a Default or Unmatured Default
the Required Lenders may, at their option, by notice to the
Borrower, declare that no Advance may be made as, converted into or
continued as a Eurodollar Advance. During the continuance of a
Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates),
declare that each Eurodollar Advance and Floating Rate Advance
shall bear interest (for the remainder of the applicable Interest
Period in the case of Eurodollar Advances) at a rate per annum
equal to the Alternate Base Rate plus two percent (2%) per annum;
provided, however, that such increased rate shall automatically and
without action of any kind by the Lenders become and remain
applicable until revoked by the Required Lenders in the event of a
Default described in Section 7.6 or 7.7.
2.11.
Method of Payment. All payments
of the Obligations hereunder shall be made, without setoff,
deduction or counterclaim, in immediately available funds to the
Agent at the Agent’s address specified pursuant to Article
XIII, or at any other Lending Installation of the Agent specified
in writing by the Agent to the Borrower, by 1:00 p.m. (New York
time) on the date when due and shall be applied ratably by the
Agent among the Lenders. Each payment delivered to the Agent for
the account of any Lender shall be delivered promptly by the Agent
to such Lender in the same type of funds that the Agent received at
its address specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Agent from such
Lender. The Agent is hereby authorized to charge the account of the
Borrower maintained with JPMorgan Chase Bank, N.A. for each payment
of principal, interest and fees as it becomes due
hereunder.
2.12.
Telephonic Notices. The Borrower
hereby authorizes the Lenders and the Agent to extend, convert or
continue Advances, effect selections of Types of Advances and to
transfer funds based on telephonic notices made by any person or
persons the Agent or any Lender in good faith believes to be acting
on behalf of the Borrower, it being understood that the foregoing
authorization is specifically intended to allow Borrowing/Election
Notices to be given telephonically. The Borrower agrees to deliver
promptly to the Agent a written confirmation of each telephonic
notice signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Agent
and the Lenders, the records of the Agent and the Lenders shall
govern absent manifest error.
2.13.
Interest Payment Dates; Interest
and Fee Basis. Interest accrued on each Floating Rate Advance shall
be payable on each Payment Date, commencing with the first such
date to occur after the date hereof, on any date on which a
Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Floating Rate Advance converted
into a Eurodollar Advance on a day other than a Payment Date shall
be payable on the date of conversion. Interest accrued on each
Eurodollar Advance shall be payable 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 and Facility Fees shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest shall be
payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to 1:00
p.m. (New York time) at the place of payment. If any payment of
principal of or interest on an 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.
2.14.
Notification of Advances,
Interest Rates, Prepayments and Commitment Reductions. Promptly
after receipt thereof, the Agent will notify each Lender of the
contents of each Aggregate Commitment reduction notice,
Borrowing/Election Notice, and repayment notice received by it
hereunder. The 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.
2.15.
Lending Installations. Each
Lender may book its Loans at any Lending Installation selected by
such Lender and may change its Lending Installation from time to
time. All terms of this Agreement shall apply to any such Lending
Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of such Lending
Installation. Each Lender may, by written notice to the Agent and
the Borrower in accordance with Article XIII, designate replacement
or additional Lending Installations through which Loans will be
made by it and for whose account Loan payments are to be
made.
2.16.
Non-Receipt of Funds by the
Agent. Unless the Borrower or a Lender, as the case may be,
notifies the Agent prior to the date on which it is scheduled to
make payment to the Agent of (a) in the case of a Lender, the
amount of a Loan, or (b) in the case of the Borrower, a payment of
principal, interest or fees to the Agent for the account of the
Lenders, that it does not intend to make such payment, the Agent
may assume that such payment has been made. The 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 Agent, the recipient of such
payment shall, on demand by the Agent, repay to the 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 Agent until the date the Agent
recovers such amount at a rate per annum equal to (x) in the case
of payment by a Lender, the Federal Funds Effective Rate for such
day for the first three days and thereafter, the interest rate
applicable to the relevant Loan, or (y) in the case of payment by
the Borrower, the interest rate applicable to the relevant
Loan.
2.17.
Noteless Agreement; Evidence of
Indebtedness. (a) 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 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.
(b) The Agent shall also maintain accounts in
which it will record (i) the amount of each Loan made hereunder and
the Type thereof, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each
Lender hereunder, and (iii) the amount of any sum received by the
Agent hereunder from the Borrower and each Lender’s share
thereof.
(c) The entries maintained in the accounts
maintained pursuant to paragraphs (a) and (b) above shall be
prima facie evidence of the existence and amounts of the
Obligations therein recorded (and, in the case of any inconsistency
between the records of the Agent and any Lender, the records of the
Agent shall be the prima facie evidence that
controls with respect to the Borrower); provided ,
however , that the failure of the 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.
(d) Any Lender may request that its Loans be
evidenced by a promissory note (a “ Note ”). In
such event, the Borrower shall prepare, execute and deliver to such
Lender a Note payable to the order of such Lender in a form
incorporating the terms of this Agreement supplied by the Agent.
Thereafter, the Loans evidenced by 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
paragraphs (a) and (b) above. The execution and delivery of each
Note shall take place at the principal office of the Agent in New
York or such other place agreed to by the parties.
2.18.
Extension of Facility Termination
Date. The Borrower may request an extension of the Facility
Termination Date by submitting a request for an extension to the
Agent (an “Extension Request”) no more than 45 days,
but no less than 30 days, prior to the then effective Facility
Termination Date. Each extension effected pursuant to this Section
2.18 shall commence on the then effective Facility Termination Date
(the “Extension Date”). The Extension Request must
specify the new Facility Termination Date requested by the
Borrower, which date shall be no more than 364 days (the
“Extension Period”) after the Extension Date, including
the Extension Date as one of the days in the calculation of the
days elapsed. Promptly upon receipt of an Extension Request, the
Agent shall notify each Lender of the contents thereof and shall
request each Lender to approve the Extension Request. Each Lender
approving the Extension Request shall deliver its written consent
to the Agent no earlier than 30 days prior to the then effective
Facility Termination Date and no later than 20 days after receipt
of the Extension Request. In the event that a Lender shall fail to
notify the Agent within such period as to whether it agrees to the
Extension Request, such Lender shall be deemed to have refused the
Extension Request. If the consent of the Required Lenders is timely
received by the Agent, the new Facility Termination Date specified
in the Extension Request shall become effective on the Extension
Date as to such consenting Lenders only (and not as to any Lender
which has not consented to such extension), and the Agent shall
promptly notify the Borrower and each consenting Lender of the new
Facility Termination Date and new Aggregate Commitment.
Notwithstanding anything contained in this Agreement to the
contrary, (a) all Obligations hereunder owing to the non-extending
Lenders shall be due and payable on the Facility Termination Date
without giving effect to any requested extension, (b) the Aggregate
Commitment as of the commencement of the Extension Period shall be
reduced to an amount equal to the sum of the Commitments of the
Lenders ultimately consenting to the Extension Request, and (c)
each Lender may, in its sole discretion, grant or deny its consent
with respect to any proposed Extension Request. Any Lender not
granting the Extension Request shall, if the Borrower has selected
an assignee for such Lender reasonably acceptable to the Agent
prior to the Extension Date, promptly assign to such assignee its
rights and obligations hereunder in respect of all or that portion
of such Lender’s Commitment as such assignee is willing to
accept, all in accordance with Section 12.3.
2.19. Replacement of Lender. If the Borrower is
required pursuant to Section 3.1, 3.2 or 3.5 to make any additional
payment to any Lender or if any Lender's obligation to make or
continue, or to convert Floating Rate Advances into, Eurodollar
Advances shall be suspended pursuant to Section 3.3 (any Lender so
affected an “Affected Lender”), the Borrower may elect,
if such amounts continue to be charged or such suspension is still
effective, to replace such Affected Lender as a Lender party to
this Agreement, provided that no Default or Unmatured Default shall
have occurred and be continuing at the time of such replacement,
and provided further that, concurrently with such replacement, (a)
another bank or other entity which is reasonably satisfactory to
the Borrower and the Agent shall agree, as of such date, to
purchase for cash the Advances and other Obligations due to the
Affected Lender pursuant to an Assignment and Assumption
substantially in the form of Exhibit C at par and to become a
Lender for all purposes under this Agreement and to assume all
obligations of the Affected Lender to be terminated as of such date
and to comply with the requirements of Section 12.3 applicable to
assignments, and (b) the Borrower shall pay to such Affected Lender
in same day funds on the day of such replacement all interest, fees
and other amounts then accrued but unpaid to such Affected Lender
by the Borrower hereunder to and including the date of termination,
including without limitation payments due to such Affected Lender
under Sections 3.l, 3.2 and 3.5, and an amount, if any, equal to
the payment which would have been due to such Lender on the day of
such replacement under Section 3.4 had the Loans of such Affected
Lender been prepaid on such date rather than sold to the
replacement Lender.
YIELD PROTECTION;
TAXES
3.1.
Yield Protection. If, on or after
the date of this Agreement, the adoption of any law or any
governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or
any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender or applicable Lending
Installation with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable
agency:
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subjects any
Lender or any applicable Lending Installation to any Taxes, or
changes the basis of taxation of payments (other than with respect
to Excluded Taxes) to any Lender in respect of its Eurodollar
Loans, or
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imposes or
increases or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation (other than the
amount of reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Advances),
or
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imposes any
other condition the result of which is to increase the cost to any
Lender or any applicable Lending Installation of making, funding or
maintaining its Eurodollar Loans or reduces any amount receivable
by any Lender or any applicable Lending Installation in connection
with its Eurodollar Loans, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to
the amount of Eurodollar Loans held or interest received by it, by
an amount deemed material by such Lender,
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and the result
of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its
Eurodollar Loans or Commitment or to reduce the return received by
such Lender or applicable Lending Installation in connection with
such Eurodollar Loans or Commitment, then, within 15 days of demand
by such Lender, the Borrower shall pay such Lender such additional
amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received.
3.2.
Changes in Capital Adequacy
Regulations. If a Lender determines the amount of capital required
or expected to be maintained by such Lender, any Lending
Installation of such Lender or any corporation controlling such
Lender is increased as a result of a Change, then, within 15 days
of demand by such Lender, the Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Loans or its
Commitment to make Loans hereunder (after taking into account such
Lender's policies as to capital adequacy). “Change”
means (i) any change after the date of this Agreement in the
Risk-Based Capital Guidelines or (ii) any adoption of or change in
any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which
affects the amount of capital required or expected to be maintained
by any Lender or any Lending Installation or any corporation
controlling any Lender. “Risk-Based Capital Guidelines”
means (i) the risk-based capital guidelines in effect in the United
States on the date of this Agreement, including transition rules,
and (ii) the corresponding capital regulations promulgated by
regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and
Supervisory Practices Entitled “International Convergence of
Capital Measurements and Capital Standards,” including
transition rules, and any amendments to such regulations adopted
prior to the date of this Agreement.
3.3.
Availability of Types of
Advances. If any Lender determines that maintenance of its
Eurodollar Loans at a suitable Lending Installation would violate
any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that
(i) deposits of a type and maturity appropriate to match fund
Eurodollar Advances are not available or (ii) the interest rate
applicable to Eurodollar Advances does not accurately reflect the
cost of making or maintaining Eurodollar Advances, then the Agent
shall suspend the availability of Eurodollar Advances and require
any affected Eurodollar Advances to be repaid or converted to
Floating Rate Advances, subject to the payment of any funding
indemnification amounts required by Section 3.4.
3.4.
Funding Indemnification. If any
payment of a Eurodollar Advance occurs on a date which is not the
last day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a Eurodollar Advance is
not made on the date specified by the Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each
Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain such Eurodollar
Advance.
3.5.
Taxes. (i) All payments by the
Borrower to or for the account of any Lender or the Agent hereunder
or under any Note shall be made free and clear of and without
deduction for any and all Taxes. If the Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (a) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under
this Section 3.5) such Lender or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted to
the relevant authority in accordance with applicable law and (d)
the Borrower shall furnish to the Agent the original copy of a
receipt evidencing payment thereof within 30 days after such
payment is made.
(ii) In addition, the Borrower hereby agrees to
pay any present or future stamp or documentary taxes and any other
excise or property taxes, charges or similar levies which arise
from any payment made hereunder or under any Note or from the
execution or delivery of, or otherwise with respect to, this
Agreement or any Note (“ Other Taxes
”).
(iii) The Borrower hereby agrees to indemnify
the Agent and each Lender for the full amount of Taxes or Other
Taxes (including, without limitation, any Taxes or Other Taxes
imposed on amounts payable under this Section 3.5 ) paid by
the Agent or such Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto.
Payments due under this indemnification shall be made within 30
days of the date the Agent or such Lender makes demand therefor
pursuant to Section 3.6 .
(iv) Each Lender that is not a “United
States person” within the meaning of Section 7701(a)(30) of
the Code (a “ Non-U.S. Lender ”) shall deliver
to the Agent and the Borrower on or prior to the Closing Date (or,
in the case of a Lender that acquired its interest by assignment,
upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor
thereto (relating to such Non-U.S. Lender and entitling it to an
exemption from withholding tax on all payments to be made to such
Non-U.S. Lender by the Borrower pursuant to this Agreement) or IRS
Form W-8ECI or any successor thereto (relating to all payments to
be made to such Non-U.S. Lender by the Borrower pursuant to this
Agreement) or such other evidence satisfactory to the Borrower and
the Agent that such Non-U.S. Lender is entitled to an exemption
from U.S. withholding tax with respect to all payments to be made
to such Non-U.S. Lender by the Borrower pursuant to this Agreement,
including any exemption pursuant to Section 881(c) of the Code.
Thereafter and from time to time, each such Non-U.S. Lender shall
(a) promptly submit to the Agent such additional duly completed and
signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States
taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to the Borrower and the Agent of any available
exemption from or reduction of, United States withholding taxes in
respect of all payments to be made to such Non-U.S. Lender by the
Borrower pursuant to this Agreement, (b) promptly notify the Agent
of any change in circumstances which would modify or render invalid
any claimed exemption or reduction, and (c) take such steps as
shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Installation) to avoid
any requirement of applicable laws that the Borrower make any
deduction or withholding for taxes from amounts payable to such
Non-U.S. Lender.
(v) For any period during which a Non-U.S.
Lender has failed to provide the Borrower with an appropriate form
pursuant to clause (iv), above (unless such failure is due to a
change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form
originally was required to be provided), such Non-U.S. Lender shall
not be entitled to indemnification under this Section 3.5
with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or
subject to a reduced rate of withholding tax become subject to
Taxes because of its failure to deliver a form required under
clause (iv), above, the Borrower shall take such steps as such
Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption
from or reduction of withholding tax with respect to payments under
this Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or
any other governmental authority of the United States or any other
country or any political subdivision thereof asserts a claim that
the Agent did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not
delivered or properly completed, because such Lender failed to
notify the Agent of a change in circumstances w
