CONFORMED COPY
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[Computer Associates Logo]
COMPUTER ASSOCIATES INTERNATIONAL, INC.
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$1,300,000,000
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
dated as of May 24, 2000
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BANK OF AMERICA, N.A.
and
CHASE SECURITIES, INC.,
as Co-Syndication Agents
THE BANK OF NOVA SCOTIA,
as the Documentation Agent
CREDIT SUISSE FIRST BOSTON,
as the Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND INTERPRETATION........................................................................2
Section 1.1 Defined Terms...............................................................................2
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Section 1.2 Computation of Time Periods................................................................14
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Section 1.3 Accounting Terms...........................................................................14
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Section 1.4 No Presumption Against Any Party...........................................................14
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Section 1.5 Use of Certain Terms.......................................................................14
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Section 1.6 Headings and References....................................................................14
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Section 1.7 Independence of Provisions.................................................................14
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ARTICLE 2. AMOUNT AND TERMS OF REVOLVING COMMITMENTS............................................................15
Section 2.1 Revolving Commitments......................................................................15
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Section 2.2 Procedure for Borrowing of Revolving Loans.................................................15
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Section 2.3 Termination of Revolving Commitments.......................................................16
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Section 2.4 Use of Proceeds............................................................................16
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Section 2.5 Extensions of Termination Date for Revolving Commitments...................................16
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ARTICLE 3. AMOUNT AND TERMS OF SWINGLINE SUB-FACILITY...........................................................17
Section 3.1 Swingline Commitment.......................................................................17
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Section 3.2 Procedure for Swingline Borrowing; Refunding of Swingline Loans............................17
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ARTICLE 4. AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY....................................................18
Section 4.1 L/C Commitment.............................................................................18
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Section 4.2 Procedure for Issuance of Letter of Credit.................................................19
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Section 4.3 Fees and Other Charges.....................................................................19
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Section 4.4 L/C Participations.........................................................................20
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Section 4.5 Reimbursement Obligation of the Borrower...................................................21
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Section 4.6 Obligations Absolute.......................................................................21
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Section 4.7 Letter of Credit Payments..................................................................22
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Section 4.8 Applications...............................................................................22
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ARTICLE 5. CAF ADVANCES.........................................................................................22
Section 5.1 CAF Advances...............................................................................22
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Section 5.2 Procedure for CAF Advance Borrowing........................................................22
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Section 5.3 CAF Advance Payments.......................................................................25
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Section 5.4 Evidence of Debt...........................................................................26
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Section 5.5 Certain Restrictions.......................................................................26
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ARTICLE 6. MONEY MARKET ADVANCES................................................................................26
Section 6.1 Procedure for Borrowing of Money Market Advances...........................................26
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Section 6.2 Evidence of Money Market Advances..........................................................27
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Section 6.3 Acceleration of Money Market Advances......................................................27
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Section 6.4 Prepayment of Money Market Advances........................................................27
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Section 6.5 Money Market Advances are Not Loans........................................................28
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ARTICLE 7. GENERAL PROVISIONS APPLICABLE TO EXTENSIONS OF CREDIT................................................28
Section 7.1 Repayment of Loans; Evidence of Debt.......................................................28
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Section 7.2 Facility Fee, etc. ........................................................................29
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Section 7.3 Termination or Reduction of Revolving Commitments..........................................29
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Section 7.4 Optional Prepayments.......................................................................30
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Section 7.5 Mandatory Prepayments and Commitment Reductions............................................30
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Section 7.6 Conversion and Continuation Options........................................................30
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Section 7.7 Limitations on Eurodollar Tranches.........................................................31
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Section 7.8 Interest Rates and Payment Dates...........................................................31
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Section 7.9 Computation of Interest and Fees...........................................................32
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Section 7.10 Inability to Determine Interest Rate......................................................32
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Section 7.11 Pro Rata Treatment and Payments...........................................................33
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Section 7.12 Increased Costs and Capital Requirements..................................................34
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Section 7.13 Taxes.....................................................................................36
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Section 7.14 Indemnity.................................................................................39
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Section 7.15 Additional Action in Certain Events.......................................................39
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ARTICLE 8. CONDITIONS OF COMMITMENTS............................................................................40
Section 8.1 Conditions Precedent to Closing Date.......................................................40
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Section 8.2 Conditions Precedent to Each Extension of Credit...........................................41
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ARTICLE 9. REPRESENTATIONS AND WARRANTIES.......................................................................41
Section 9.1 Organization of Credit Parties.............................................................41
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Section 9.2 Authorization of Credit Documents..........................................................41
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Section 9.3 Government Approvals.......................................................................42
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Section 9.4 No Conflicts...............................................................................42
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Section 9.5 Enforceability.............................................................................42
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Section 9.6 Title to Property..........................................................................42
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Section 9.7 Compliance with Law........................................................................42
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Section 9.8 No Litigation..............................................................................42
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Section 9.9 Subsidiaries...............................................................................43
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Section 9.10 Financial Information.....................................................................43
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Section 9.11 Margin Regulations........................................................................43
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Section 9.12 ERISA.....................................................................................43
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Section 9.13 Investment Company Act....................................................................43
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Section 9.14 Taxes.....................................................................................43
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ARTICLE 10. COVENANTS OF CREDIT PARTIES.........................................................................44
Section 10.1 Affirmative Covenants.....................................................................44
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Section 10.2 Negative Covenants........................................................................47
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ARTICLE 11. EVENTS OF DEFAULT...................................................................................50
ARTICLE 12. RELATIONSHIP OF ADMINISTRATIVE AGENT AND BANKS......................................................52
Section 12.1 Authorization and Action..................................................................52
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Section 12.2 Administrative Agent's Reliance, Etc. ....................................................53
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Section 12.3 Administrative Agent and Affiliates.......................................................54
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Section 12.4 Bank Credit Decision......................................................................54
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Section 12.5 Indemnification...........................................................................54
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Section 12.6 Successor Administrative Agent............................................................55
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ARTICLE 13. MISCELLANEOUS.......................................................................................55
Section 13.1 Notices...................................................................................55
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Section 13.2 Successors and Assigns....................................................................56
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Section 13.3 Amendments and Related Matters............................................................56
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Section 13.4 Costs and Expenses; Indemnification.......................................................57
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Section 13.5 Oral Communications.......................................................................58
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Section 13.6 Entire Agreement..........................................................................58
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Section 13.7 Governing Law.............................................................................58
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Section 13.8 Severability..............................................................................58
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Section 13.9 Counterparts..............................................................................58
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Section 13.10 Confidentiality..........................................................................58
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Section 13.11 Assignments and Participations...........................................................59
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Section 13.12 Waiver of Trial by Jury..................................................................62
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Section 13.13 Choice of Forum and Service of Process...................................................63
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Section 13.14 Remedies.................................................................................63
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Section 13.15 Right of Set-Off.........................................................................63
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Section 13.16 Effectiveness............................................................................64
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SCHEDULES
Schedule 1 Commitment Schedule and Addresses
Schedule 2 Material Subsidiaries
EXHIBITS
Exhibit A Form of Assignment and Acceptance Agreement
Exhibit B Form of Compliance Certificate
Exhibit C-1 Form of Notice of Borrowing (Drawings)
Exhibit C-2 Form of Notice of Borrowing (Continuations)
Exhibit C-3 Form of Notice of Borrowing (Conversions)
Exhibit D Form of Opinion of General Counsel to the Borrower
Exhibit E-1 Form of Revolving Credit Note
Exhibit E-2 Form of Swingline Note
Exhibit F-1 Form of CAF Advance Request
Exhibit F-2 Form of CAF Advance Offer
Exhibit F-3 Form of CAF Advance Confirmation
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 24,
2000, is made by and among:
(a) COMPUTER ASSOCIATES INTERNATIONAL, INC., a Delaware corporation (the
"Borrower");
(b) the Banks (as hereinafter defined);
(c) each of the Managing Agents and Co-Agents listed on the signature pages
hereto (in such capacity, the "Co-Agents");
(d) BANK OF AMERICA, N.A. and CHASE SECURITIES INC., as co-syndication
agents (in such capacity, the "Co-Syndication Agents");
(e) THE BANK OF NOVA SCOTIA, as documentation agent (in such capacity, the
"Documentation Agent"); and
(f) CREDIT SUISSE FIRST BOSTON, as administrative agent (in such capacity,
the "Administrative Agent") for the Banks.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower is a party to the Credit Agreement,
dated as of May 26, 1999, the ("Existing Agreement"), with the banks and other
financial institutions parties thereto, the Co-Agents named therein, the
Co-Syndication Agents named therein and the Administrative Agent;
WHEREAS, the Borrower has requested that the Existing
Agreement be amended as set forth herein;
WHEREAS, each of the parties hereto is agreeable to the
requested amendments, but only upon the terms and subject to the conditions set
forth herein, and each of the parties hereto, for convenience of reference, has
agreed to restate the Existing Agreement as so amended;
WHEREAS, each of the Lenders and the other parties hereto are
agreeable to the terms and provisions of the Existing Agreement as amended and
restated hereby;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties to the Existing Agreement agree that the
Existing Agreement shall be and hereby is amended and restated to read in its
entirety as follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
2
Section 1.1 Defined Terms. As used herein, the following
terms shall have the following meanings:
"Administrative Agent" has the meaning assigned to that term
in the preamble hereto.
"Affiliate" means, as to any Person, any other Person directly
or indirectly controlling or controlled by or under common control with
such Person.
"Agency Office" means the office of the Administrative Agent
designated on the Commitment Schedule (which office initially shall be
located in the City of New York), or such other office of the
Administrative Agent as the Administrative Agent may from time to time
designate by notice to the Borrower and the Banks.
"Agreement" means this Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Applicable Facility Fee Rate" means, at any date, the rate
per annum set forth below opposite the Public Debt Rating notified to
the Administrative Agent by the Borrower pursuant to Section
10.1(h)(vii) most recently prior to such date:
Public Debt Ratings Rate
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A-/A3 or better 0.100%
BBB+/Baa1 0.125%
BBB/Baa2 0.150%
BBB-/Baa3 0.175%
Less than BBB-/Baa3 0.200%
"Applicable Lending Office" means, with respect to each Bank,
the office of such Bank from time to time designated by such Bank to
the Borrower and the Administrative Agent as the office (or offices)
from which such Bank is funding its Loans hereunder.
"Application" means an application, in such form as the
Issuing Bank may specify from time to time, requesting the Issuing Bank
to open a Letter of Credit.
"Assignee" has the meaning ascribed thereto in Section 13.11.
"Assignment and Acceptance Agreement" means an assignment and
acceptance agreement, in compliance with Section 13.11 and
substantially in the form of Exhibit A hereto.
"Available Revolving Commitment" means, as to any Revolving
Bank at any time, an amount equal to the excess, if any, of (a) such
Revolving Bank's Revolving
3
Commitment then in effect over (b) such Revolving Bank's Revolving
Extensions of Credit then outstanding.
"Bank" means a Revolving Bank, the Issuing Bank or the
Swingline Bank, as the context shall require; collectively, the
"Banks."
"Bank Holding Company" means any Person that directly or
indirectly controls any Bank.
"Banking Day" means a day other than a Saturday, Sunday or
other day on which commercial banks in New York City (or, in the case
of matters relating to Eurodollar Rate Loans or LIBO Rate CAF Advances,
on which commercial banks in New York City or London, England) are
authorized or required by law to close.
"Base Rate" means a fluctuating rate per annum which is at all
times equal to the higher of (a) the rate per annum publicly announced
by Credit Suisse First Boston from time to time as its base lending
rate for commercial loans in Dollars in the United States or (b) the
Federal Funds Rate plus a margin of 0.50 percentage points, the Base
Rate to change as and when such rates change. The base lending rate is
not necessarily the lowest rate of interest charged by Credit Suisse
First Boston in connection with extensions of credit.
"Base Rate Loan" means any Loan during any period that such
Loan is bearing interest at a rate based upon the Base Rate.
"Borrower" has the meaning assigned to that term in the
preamble hereto.
"Borrowing Date" means any Banking Day during the Commitment
Period which is specified by the Borrower as a date on which the
Borrower requests the relevant Banks to make Loans (including, without
limitation, CAF Advances) or issue a Letter of Credit hereunder.
"CAF Advance" means each CAF Advance made pursuant to Section
5.1.
"CAF Advance Availability Period" means the period from and
including the Closing Date to and including the date which is 14 days
prior to the Termination Date.
"CAF Advance Confirmation" means each confirmation by the
Borrower of its acceptance of CAF Advance Offers, which confirmation
shall be substantially in the form of Exhibit F-3 and shall be
delivered to the Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date" means as to each CAF
Advance, each interest payment date specified by the Borrower for such
CAF Advance in the related CAF Advance Request.
4
"CAF Advance Maturity Date" means as to any CAF Advance, the
date specified by the Borrower pursuant to Section 5.2 in its
acceptance of the related CAF Advance Offer.
"CAF Advance Offer" means each offer by a Revolving Bank to
make CAF Advances pursuant to a CAF Advance Request, which offer shall
contain the information specified in Exhibit F-2 and shall be delivered
to the Administrative Agent by telephone, immediately confirmed by
facsimile transmission.
"CAF Advance Request" means each request by the Borrower for
Revolving Banks to submit bids to make CAF Advances, which request
shall contain the information in respect of such requested CAF Advances
specified in Exhibit F-1 and shall be delivered to the Administrative
Agent in writing, by facsimile transmission, or by telephone,
immediately confirmed by facsimile transmission.
"Closing Date"means the date upon which the conditions
precedent set forth in Section 8.1 shall have been satisfied, which
date shall be May 24, 2000.
"Co-Agent" has the meaning assigned to that term in the
preamble hereto.
"Commitment" means, as to any Bank, the obligation of such
Bank to make Loans to and/or issue or participate in Letters of Credit
issued on behalf of the Borrower hereunder in an aggregate principal
and/or face amount at any one time outstanding not to exceed the amount
set forth opposite such Bank's name as its Commitment on the Commitment
Schedule, as the same may be reduced from time to time in accordance
with the terms hereof and otherwise subject to adjustment for the
effect of any one or more Assignment and Acceptance Agreements to which
such Bank may be a party.
"Commitment Period" means the period from and including the
Closing Date to the Termination Date (or such earlier date upon which
the Commitments shall terminate).
"Commitment Schedule" means the schedule attached as Schedule
1 hereto.
"Compliance Certificate" means a certificate of, and duly
executed by, a Responsible Officer of the Borrower in the form of
Exhibit B hereto.
"Confidential Information Memorandum" means the Confidential
Information Memorandum, dated April 2000, distributed with respect to
the Borrower in connection with the syndication of the Commitments.
"Consolidated EBITDA" means, for any period, the amount equal
to the Consolidated Net Income of the Borrower and its consolidated
Subsidiaries for such period plus, to the extent deducted in
calculating such Consolidated Net Income for such period, all taxes,
Consolidated Interest Expense, depreciation, amortization and other
5
non-cash expenses and charges (including the write-offs of purchased
research and development charges) of the Borrower and its consolidated
Subsidiaries (determined on a consolidated basis in conformity with
GAAP) for such period.
"Consolidated Interest Expense" means, with respect to the
Borrower and its consolidated Subsidiaries for any period, the amount
which would be deducted for such period on account of interest expense
on the aggregate principal amount of their Debt in the determination of
Consolidated Net Income for such period.
"Consolidated Net Income" means, for any period, the net
income of the Borrower and its consolidated Subsidiaries, determined on
a consolidated basis in conformity with GAAP.
"Co-Syndication Agents" has the meaning assigned to that term
in the preamble hereto.
"Credit Documents" means this Agreement, any Notes and any
Applications.
"Debt" means, without duplication, (i) indebtedness for
borrowed money, (ii) obligations to pay the deferred purchase price of
property or services (other than trade payables arising in the ordinary
course of business which are not overdue), (iii) obligations as lessee
under leases which shall have been or should be, in accordance with
GAAP, recorded as capital leases, (iv) obligations evidenced by bonds,
debentures, notes, or equivalent instruments, (v) reimbursement
obligations in respect of drawings made under letters of credit, (vi)
obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses (i) through (v) above and (vii) withdrawal liability incurred
under ERISA to any Multiemployer Plan; provided, however, that, the
term "Debt" shall not include, to the extent otherwise includable
therein, deferred taxes and deferred maintenance revenue.
"Directive" means any Law, and any directive, guideline or
requirement of any governmental authority (whether or not having the
force of law), but, if not having the force of law, the compliance with
which is in accordance with the general practice of the Person to whom
the Directive is addressed or applies.
"Documentation Agent" has the meaning assigned to that term in
the preamble hereto.
"Dollar" and "$" mean the lawful currency of the United States
of America.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
6
"ERISA Affiliate" means any trade or business (whether or not
incorporated) which is a member of a group of which the Borrower is a
member and which is under common control with the Borrower within the
meaning of the regulations under Section 414 of the IRC.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D promulgated by the Board of Governors of the Federal
Reserve System, as in effect from time to time or any successor
Directive.
"Eurodollar Base Rate" means, for each Interest Period for
each Eurodollar Rate Loan, the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London, England time)
on the date which is two Banking Days prior to the beginning of the
relevant Interest Period (as specified in the applicable Notice of
Borrowing) by reference to the "British Bankers' Association Interest
Settlement Rates" for a representative amount of deposits in Dollars
(as set forth by any service selected by the Administrative Agent which
has been nominated by the British Bankers' Association as an authorized
information vendor for the purpose of displaying such rates) for a
period equal to such Interest Period; provided that, to the extent that
an interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, the "Eurodollar Base Rate" shall be the
interest rate per annum determined by the Administrative Agent to be
the average of the rates per annum at which a representative amount of
deposits in Dollars are offered for such relevant Interest Period to
major banks in the London interbank market in London, England by Credit
Suisse First Boston at approximately 11:00 a.m. (London time) on the
date which is two Banking Days prior to the beginning of such Interest
Period.
"Eurodollar Rate" means, with respect to each day during each
Interest Period pertaining to a Eurodollar Rate Loan, a rate per annum
determined for such day in accordance with the following formula:
Eurodollar Base Rate
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1.00 - Eurodollar Rate Reserve Percentage
"Eurodollar Rate Loan" means any Loan that bears interest at
a rate based upon the Eurodollar Rate.
"Eurodollar Rate Margin" means, at any date, the rate per
annum set forth below opposite the Public Debt Rating notified to the
Administrative Agent by the Borrower pursuant to Section 10.1(h)(vii)
most recently prior to such date:
Public Debt Ratings Rate
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A-/A3 or better 0.900%
BBB+/Baa1 1.000%
BBB/Baa2 1.100%
7
BBB-/Baa3 1.325%
Less than BBB-/Baa3 1.550%
"Eurodollar Rate Reserve Percentage" for each day for each
Eurodollar Rate Loan means the reserve percentage applicable on such
day under regulations issued from time to time by the Board of
Governors of the Federal Reserve System or any successor for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities having a term equal to the Interest
Period then in effect with respect to such Eurodollar Rate Loan.
"Eurodollar Tranche" means all Eurodollar Rate Loans which
have current Interest Periods beginning on the same date and ending on
the same later date (whether or not such Loans shall originally have
been made on the same day).
"Event of Default" has the meaning specified in Article 11.
"Excluded Taxes" has the meaning ascribed thereto in Section
7.13(a).
"Existing Agreement" has the meaning ascribed thereto in the
recitals hereto.
"Existing $3 Billion Agreement" means that certain $3 Billion
Credit Agreement, dated as of May 26, 1999, among the Borrower, the
banks and other financial institutions parties thereto, the Co-Agents
named therein, the Co-Syndication Agents named therein and Credit
Suisse First Boston, as administrative agent, as the same may be
amended, supplemented or otherwise modified from time to time.
"Federal Funds Rate" means, for any day, the weighted average
of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Banking Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day
which is a Banking Day, the average of the quotations for the day of
such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
"Fixed Rate CAF Advance" means any CAF Advance made pursuant
to a Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request" means any CAF Advance Request
requesting the Revolving Banks to offer to make CAF Advances at a fixed
rate (as opposed to a rate composed of the LIBO Rate plus (or minus) a
margin).
"Funding Office" means the office specified from time to time
by the Administrative Agent as its funding office by notice to the
Borrower and the Banks.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time (except that for purposes
of Section 10.2(f) and (g), GAAP shall
8
be determined on the basis of such principles used in the preparation
of the audited financial statements delivered for the fiscal year ended
on March 31, 2000). In the event that any "Accounting Change" (as
defined below) shall occur and such change results in a change in the
method of calculation of financial covenants, standards or terms in
this Agreement, then the Borrower and the Administrative Agent agree to
enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Changes with the
desired result that the criteria for evaluating the Borrower's
financial condition shall be the same after such Accounting Changes as
if such Accounting Changes had not been made. Until such time as such
an amendment shall have been executed and delivered by the Borrower,
the Administrative Agent and the Required Banks, all financial
covenants, standards and terms in this Agreement shall continue to be
calculated or construed as if such Accounting Changes had not occurred.
"Accounting Changes" refers to changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants or, if applicable, the SEC.
"Granting Bank" has the meaning ascribed thereto in Section
13.11(f).
"Interest Period": with respect to any Eurodollar Rate Loan,
means:
(a) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Rate Loan and ending one, two, three, six, nine or
twelve months thereafter, as selected by the Borrower in its
Notice of Borrowing or notice of conversion, as the case may
be, given with respect thereto; and
(b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Rate Loan and ending one, two, three, six, nine or
twelve months thereafter, as selected by the Borrower in its
Notice of Borrowing delivered to the Administrative Agent with
respect thereto;
provided that, the foregoing provisions relating to Interest Periods
are subject to the following:
(w) if any Interest Period pertaining to a Eurodollar
Rate Loan would otherwise end on a day that is not a Banking
Day, such Interest Period shall be extended to the next
succeeding Banking Day unless the result of such extension
would be to carry such Interest Period into another calendar
month in which event such Interest Period shall end on the
immediately preceding Banking Day;
(x) any Interest Period that would otherwise extend
beyond the Termination Date shall end on the Termination Date;
9
(y) any Interest Period pertaining to a Eurodollar
Rate Loan that begins on the last Banking Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Banking Day of a
calendar month; and
(z) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Rate
Loan during an Interest Period for such Loan.
"IRC" means the Internal Revenue Code of 1986, as amended from
time to time.
"Issuing Bank" means Credit Suisse First Boston or such other
Revolving Bank as may be mutually agreed upon by the Borrower and the
Administrative Agent, in its capacity as issuer of any Letter of
Credit.
"Laws" means all federal, state, local or foreign laws, rules,
regulations and treaties, all judgments, awards, orders, writs,
injunctions or decrees issued by any federal, state, local or foreign
authority, court, tribunal, agency or other governmental authority, or
by any arbitrator, all permits, licenses, approvals, franchises,
notices, authorizations and similar filings, by or with any federal,
state, local or foreign governmental authority and all consent decrees
or regulatory agreements with any federal, state, local or foreign
governmental authority.
"L/C Fee Payment Date" means the last Banking Day of each
March, June, September and December.
"L/C Obligations" means at any time, an amount equal to the
sum of (a) the aggregate then undrawn and unexpired amount of then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit which have not then been reimbursed pursuant to
Section 4.5.
"L/C Participants" means the collective reference to all the
Revolving Banks other than the Issuing Bank.
"Letters of Credit" has the meaning ascribed thereto in
Section 4.1(a).
"LIBO Rate" means, in respect of any LIBO Rate CAF Advance,
the London interbank offered rate for deposits in Dollars for the
period commencing on the date of such CAF Advance and ending on the CAF
Advance Maturity Date with respect thereto which appears on Telerate
Page 3750 as of 11:00 A.M., London time, two Banking Days prior to the
beginning of such period.
"LIBO Rate CAF Advance" means any CAF Advance made pursuant to
a LIBO Rate CAF Advance Request.
10
"LIBO Rate CAF Advance Request" means any CAF Advance Request
requesting the Revolving Banks to offer to make CAF Advances at an
interest rate equal to the LIBO Rate plus (or minus) a margin.
"Liens" means any mortgage, pledge, hypothecation, assignment
for purposes of security, "blocked" account arrangement, encumbrance,
lien (statutory or other), charge or other security interest or any
preference, priority or other security agreement or preferential
arrangement (including, without limitation, any conditional sale or
other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan" means a Revolving Loan, a Swingline Loan, a CAF Advance
or a Money Market Loan, as the context shall require.
"Majority Banks" means the Banks holding Revolving Commitments
which collectively constitute more than 50% of the Total Revolving
Commitments; provided that, as of any time either (i) when an Event of
Default pursuant to clause (a) of Article 11 has occurred and is
continuing or (ii) after the last day of the Commitment Period, the
term "Majority Banks" shall mean the Banks holding more than 50% of the
Total Revolving Extensions of Credit. Notwithstanding the foregoing,
(x) for purposes of declaring the Loans and other extensions of credit
to be due and payable pursuant to Article 11, the outstanding CAF
Advances of the Revolving Banks shall be included in their respective
Revolving Extensions of Credit in determining the "Majority Banks" and
(y) for purposes of determining the "Majority Banks" at any date, the
outstanding Letters of Credit and Swingline Loans shall be deemed to be
held ratably by all Revolving Banks.
"Margin Stock" shall have the meaning assigned to such term
pursuant to Regulations T, U and X of the Board of Governors of the
Federal Reserve System.
"Material Adverse Effect" means any event, development or
circumstance that has had or could reasonably be expected to have a
material adverse effect on (a) the business, assets, property or
condition (financial or otherwise) of the Borrower and its Subsidiaries
taken as a whole, or (b) the validity or enforceability of any of the
Credit Documents or the Existing $3 Billion Agreement or the rights and
remedies of the Administrative Agent and the Banks thereunder.
"Material Subsidiary" means, at any date, any Subsidiary of
the Borrower which (a) holds any capital stock of the Borrower, (b) in
the aggregate with its Subsidiaries, has consolidated revenues for the
period of four consecutive fiscal quarters most recently ended which
are in excess of 3% of the consolidated revenues of the Borrower and
its Subsidiaries taken as a whole for such period or (c) in the
aggregate with its Subsidiaries, has consolidated assets at such date
which are material to the business of the Borrower and its Subsidiaries
taken as a whole.
11
"Money Market Loan" means a loan by a Bank to the Borrower
pursuant to Article 6.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which Borrower or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an
obligation to make contributions, such plan being maintained pursuant
to one or more collective bargaining agreements.
"Notes" has the meaning specified in Section 7.1(e).
"Notice of Borrowing" means (a) with respect to a request for
a borrowing hereunder, a request in the form of Exhibit C-1 hereto, (b)
with respect to a request for continuation of a Eurodollar Rate Loan
hereunder, a request in the form of Exhibit C-2 hereto and (c) with
respect to a request for conversion of or to a Eurodollar Rate Loan
hereunder, a request in the form of Exhibit C-3 hereto, in each case
delivered by the Borrower to the Administrative Agent hereunder.
"Other Taxes" has the meaning ascribed thereto in Section
7.13(b).
"Person" means an individual, partnership, limited liability
company, corporation (including a business trust), joint stock company,
trust, unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, which either (i) is maintained for employees of
the Borrower or an ERISA Affiliate and no Person other than the
Borrower and its ERISA Affiliate, (ii) is maintained for employees of
the Borrower or an ERISA Affiliate and at least one Person other than
the Borrower and its ERISA Affiliates, or (iii) was so maintained in
respect of which the Borrower or an ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan
has been or were to be terminated.
"Public Debt Rating" means, at any date, the higher of the
ratings then assigned by S&P and Moody's to the senior, unsecured,
long-term Debt for borrowed money of the Borrower which is not
guaranteed by any other Person or otherwise subject to credit
enhancement; provided that if the ratings assigned by S&P and the
Moody's are more than one level apart, the Public Debt Rating shall
mean the rating which is one level above the lower of such S&P rating
or Moody's rating, as applicable, and provided further that if such
lower rating is BBB- or below (in the case of the S&P rating) or Baa3
or below (in the case of the Moody's rating), the Public Debt Rating
shall mean the lower of the rating assigned by S&P and Moody's.
"Refunded Swingline Loans" has the meaning ascribed thereto in
Section 3.2(b).
12
"Refunding Date" has the meaning ascribed thereto in Section
3.2(c).
"Register" has the meaning ascribed thereto in Section 7.1(c).
"Reimbursement Obligation" means the obligation of the
Borrower to reimburse the Issuing Bank pursuant to Section 4.5 for
amounts drawn under Letters of Credit.
"Reportable Event" has the meaning assigned to that term in
Title IV of ERISA.
"Responsible Officer" means the president, chief executive
officer, chief operating officer, chief financial officer, executive
vice president, treasurer, or controller of the Borrower and such other
officer of the Borrower designated by a Responsible Officer of the
Borrower by notice delivered to the Administrative Agent.
"Revolving Bank" means each bank or other financial
institution from time to time that has a Revolving Commitment or that
holds Revolving Extensions of Credit in accordance with the terms
hereof.
"Revolving Commitment" means, as to any Revolving Bank, the
obligation of such Revolving Bank, if any, to make Revolving Loans and
participate in Swingline Loans and Letters of Credit in an aggregate
principal and/or face amount not to exceed the amount set forth under
the heading "Revolving Commitment" opposite such Revolving Bank's name
on Schedule 1 or in the Assignment and Acceptance pursuant to which
such Revolving Bank became a party hereto, as the same may be changed
from time to time pursuant to the terms hereof. The original amount of
the Total Revolving Commitments is $1,300,000,000.
"Revolving Extensions of Credit" means, as to any Revolving
Bank at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Revolving Loans held by such Revolving Bank
then outstanding, (b) such Revolving Bank's Revolving Percentage of the
L/C Obligations then outstanding and (c) such Revolving Bank's
Revolving Percentage of the aggregate principal amount of Swingline
Loans then outstanding.
"Revolving Loans" has the meaning assigned to that term in
Section 2.1.
"Revolving Percentage" means, as to any Revolving Bank at any
time, the percentage which such Revolving Bank's Revolving Commitment
then constitutes of the Total Revolving Commitments (or, at any time
after the Revolving Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Revolving
Bank's Revolving Loans then outstanding constitutes of the aggregate
principal amount of the Revolving Loans then outstanding).
"S&P" means Standard and Poor's Ratings Service.
13
"SPC" has the meaning ascribed thereto in Section 13.11(f).
"Subsidiary" means, as to any Person, any now existing or
hereafter organized corporation, partnership or other entity (a) in
which such Person, directly or indirectly, owns beneficially or of
record equity securities (or securities currently convertible into
equity securities) which give such Person directly or indirectly, upon
conversion, exercise or otherwise, the power to elect a majority of the
board of directors or other managers of such corporation, partnership
or other entity, or (b) the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries,
by such Person.
"Swingline Bank" means Credit Suisse First Boston, in its
capacity as the lender of Swingline Loans.
"Swingline Commitment" means the obligation of the Swingline
Bank to make Swingline Loans pursuant to Section 3.1.
"Swingline Loans" has the meaning ascribed thereto in Section
3.1.
"Swingline Participation Amount" has the meaning ascribed
thereto in Section 3.2(c).
"Tax Credit" has the meaning ascribed thereto in Section
7.13(i).
"Taxes" has the meaning ascribed thereto in Section 7.13(a).
"Termination Date" means May 23, 2001.
"Test Ratio" means, for any period, the ratio (determined by
reference to the consolidated financial statements of the Borrower and
its Subsidiaries most recently required to be delivered pursuant to
Section 10.1(h)(i) or (ii), as the case may be) of (a) the total Debt
of Borrower and its Subsidiaries on a consolidated basis on the last
day of such period to (b) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period.
"Total Revolving Commitments" means, at any time, the
aggregate amount of the Revolving Commitments then in effect.
"Total Revolving Extensions of Credit" means, at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving
Banks outstanding at such time plus the aggregate principal amount of
CAF Advances then outstanding.
"Type" means, with respect to any Loan, a Base Rate Loan or a
Eurodollar Rate Loan.
14
"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
Section 1.2 Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
mean "to but excluding".
Section 1.3 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
Section 1.4 No Presumption Against Any Party. Neither this
Agreement nor any uncertainty or ambiguity herein shall be construed or resolved
against any Bank or the Borrower, whether under any rule of construction or
otherwise. On the contrary, this Agreement has been reviewed by each of the
parties and their counsel and shall be construed and interpreted according to
the ordinary meaning of the words used so as to fairly accomplish the purposes
and intentions of all parties hereto.
Section 1.5 Use of Certain Terms. Unless the context of this
Agreement requires otherwise, the plural includes the singular, the singular
includes the plural, the part includes the whole, "including" is not limiting,
and "or" has the inclusive meaning of the phrase "and/or." The words "hereof,"
"herein," "hereby," "hereunder," and other similar terms of this Agreement refer
to this Agreement as a whole and not exclusively to any particular provision of
this Agreement.
Section 1.6 Headings and References. Section and other
headings are for reference only, and shall not affect the interpretation or
meaning of any provision of this Agreement. Unless otherwise provided,
references to Articles, Sections, Schedules, and Exhibits shall be deemed
references to Articles, Sections, Schedules and Exhibits of this Agreement.
References to this Agreement and any other Credit Document include this
Agreement and other Credit Documents as the same may be modified, amended,
restated or supplemented from time to time pursuant to the provisions hereof or
thereof. A reference to a Person includes the successors and assigns of such
Person, but such successors and assigns shall have rights under this Agreement
only to the extent permitted hereby.
Section 1.7 Independence of Provisions. All agreements and
covenants hereunder and under the other Credit Documents shall be given
independent effect such that if a particular action or condition is prohibited
by the terms of any such agreement or covenant, the fact that such action or
condition would be permitted within the limitations of another agreement or
covenant shall not be construed as allowing such action to be taken or condition
to exist.
15
ARTICLE 2. AMOUNT AND TERMS OF REVOLVING COMMITMENTS
Section 2.1 Revolving Commitments. Subject to the terms and
conditions hereof, each Revolving Bank severally agrees to make revolving credit
loans ("Revolving Loans") to the Borrower from time to time during the
Commitment Period in an aggregate principal amount that will not cause (a) the
sum of the Revolving Extensions of Credit of any Revolving Bank and the
aggregate principal amount of Money Market Loans made by such Revolving Bank to
exceed the Revolving Commitment then in effect for such Revolving Bank or (b)
the Total Revolving Extensions of Credit to exceed the Total Revolving
Commitments. During the Commitment Period the Borrower may use the Revolving
Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Loans may from time to time be Eurodollar Rate Loans or Base Rate
Loans, as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 7.6.
Section 2.2 Procedure for Borrowing of Revolving Loans. The
Borrower may borrow under the Revolving Commitments during the Commitment Period
on any Banking Day, provided that the Borrower shall give the Administrative
Agent irrevocable notice of such borrowing (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time), (a) three Banking
Days prior to the requested Borrowing Date, in the case of Eurodollar Rate
Loans, or (b) one Banking Day prior to the requested Borrowing Date, in the case
of Base Rate Loans. Such notice shall be in the form of a Notice of Borrowing,
substantially in the form of Exhibit C-1 hereto, which has been duly completed
and executed by the Borrower and shall specify (i) the amount and Type of
Revolving Loans to be borrowed, (ii) the requested Borrowing Date, (iii) in the
case of Eurodollar Rate Loans, the respective amounts of each such Type of Loan
and the respective lengths of the initial Interest Period therefor and (iv)
unless the Administrative Agent previously has been notified in writing thereof,
the Borrower's remittance instructions. Each borrowing under the Revolving
Commitments shall be in an amount equal to $10,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if then aggregate Available Revolving
Commitments are less than $10,000,000, such lesser amount; provided that such
lesser amount must be borrowed as a Base Rate Loan); provided, that the
Swingline Bank may request, on behalf of the Borrower, borrowings under the
Revolving Commitments that are Base Rate Loans in other amounts pursuant to
Section 3.2(b). Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Revolving Bank thereof. Each
Revolving Bank will make the amount of its pro rata share of each borrowing
available to the Administrative Agent for the account of the Borrower at the
Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Revolving Banks and in like funds as received by the Administrative
Agent.
16
Section 2.3 Termination of Revolving Commitments. On the last
day of the Commitment Period, the Revolving Commitments shall terminate and all
amounts outstanding thereunder shall be immediately due and payable.
Section 2.4 Use of Proceeds. The proceeds of the Revolving
Loans shall be used by the Borrower and its Subsidiaries for working capital
purposes and other general corporate purposes.
Section 2.5 Extensions of Termination Date for Revolving
Commitments. The Borrower may from time to time request that the Revolving Banks
and the Administrative Agent agree in writing to extend the Termination Date
then in effect for the Revolving Commitments to the 364th day after the Response
Date (as defined below); such request shall be received by the Administrative
Agent (which shall promptly notify the Revolving Banks thereof) at least 45 days
prior to the Termination Date then in effect. If on the 29th day prior to the
Termination Date then in effect (such 29th day being the "Response Date"), or on
such date thereafter as to which the Borrower agrees, the Administrative Agent
receives from any Revolving Bank a written acceptance of the Borrower's request,
then, effective on such 29th day or such other day, the Termination Date for the
Revolving Commitments then in effect will be so extended as to each Revolving
Bank who accepts the Borrower's request but shall not be extended as to any
other Revolving Bank; if no Revolving Bank delivers such an acceptance, then the
Borrower's request shall be deemed denied and the Termination Date for the
Revolving Commitments then in effect shall not be extended as to the
Administrative Agent or any Revolving Bank. The Administrative Agent shall
promptly notify the Borrower of the acceptances received by it. To the extent
that the Termination Date for the Revolving Commitments in effect at any time is
not extended as to any Revolving Bank pursuant to this Section 2.5 or by other
written agreement executed by such Revolving Bank before such Termination Date,
the Revolving Commitment of such Revolving Bank hereunder shall automatically
terminate in whole on the then existing Termination Date without any further
notice or other action by the Borrower, such Revolving Bank or any other Person.
It is understood that the Revolving Banks and the Administrative Agent shall
have no obligation whatsoever to agree to any request made by the Borrower for
the extension of the Termination Date for the Revolving Commitments. If a
Revolving Bank declines the Borrower's extension request, the Borrower may, at
its option: (a) designate an alternate bank (which need not be an existing Bank)
to purchase an assignment of such Bank's Revolving Commitment and all other
amounts payable to such Bank under this Agreement for a price equal to the
aggregate outstanding principal amount of the Loans (other than CAF Advances)
owing to such Revolving Bank and all accrued interest and other amounts owing on
account thereof (in which event such Bank shall cooperate in good faith with the
Borrower and such alternate bank in order to effect the prompt assignment of the
Revolving Commitment of, and amounts owing to, such Revolving Bank), or (b)
during such time as no Event of Default, or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both, has occurred and is continuing, repay all amounts (other than CAF
Advances) owing to such Revolving Bank and terminate its Revolving Commitment.
17
ARTICLE 3. AMOUNT AND TERMS OF SWINGLINE SUB-FACILITY
Section 3.1 Swingline Commitment. Subject to the terms and
conditions hereof, the Swingline Bank agrees that it shall make swingline loans
(the "Swingline Loans") available to the Borrower from time to time during the
Commitment Period under the Revolving Commitments; provided that (i) the sum of
the aggregate then-outstanding principal amount of the Swingline Loans and the
aggregate then-outstanding amount of the L/C Obligations would not exceed
$200,000,000 and (ii) the Borrower shall not request, and the Swingline Bank
shall not make, any Swingline Loan if, after giving effect to the making of such
Swingline Loan, the Total Revolving Extensions of Credit would exceed the Total
Revolving Commitments. During the Commitment Period, the Borrower may use the
Swingline Commitment by borrowing, repaying and reborrowing, all in accordance
with the terms and conditions hereof. Swingline Loans shall be made and
maintained only as Base Rate Loans.
Section 3.2 Procedure for Swingline Borrowing; Refunding of
Swingline Loans. (a) Whenever the Borrower desires that the Swingline Bank make
Swingline Loans it shall give the Swingline Bank irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swingline Bank not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date). Such notice shall be in the form of a Notice of Borrowing,
substantially in the form of Exhibit C-1 hereto, which has been duly completed
and executed by the Borrower and shall specify (i) the amount to be borrowed,
(ii) the requested Borrowing Date and (iii) unless the Swingline Bank previously
has been notified in writing thereof, the Borrowers' remittance instructions.
Each borrowing under the Swingline Commitment shall be in an amount equal to
$1,000,000 or a whole multiple of $500,000 in excess thereof. Not later than
3:00 P.M., New York City time, on the Borrowing Date specified in a notice in
respect of Swingline Loans, the Swingline Bank shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the amount of the Swingline Loan to be made by the Swingline
Bank. The Administrative Agent shall make the proceeds of such Swingline Loan
available to the Borrower on such Borrowing Date by depositing such proceeds in
the account of the Borrower with the Administrative Agent on such Borrowing Date
in immediately available funds.
(b) The Swingline Bank, at any time and from time to time in
its sole and absolute discretion may, on behalf of the Borrower (which hereby
irrevocably directs the Swingline Bank to act on its behalf), on one Banking
Day's notice given by the Swingline Bank no later than 3:00 P.M., New York City
time, request each Revolving Bank to make, and each Revolving Bank hereby agrees
to make, a Revolving Loan, in an amount equal to such Revolving Bank's Revolving
Percentage of the aggregate amount of the Swingline Loans (the "Refunded
Swingline Loans") outstanding on the date of such notice, to repay the Swingline
Bank. Each Revolving Bank shall make the amount of such Revolving Loan available
to the Administrative Agent at the Funding Office in immediately available
funds, not later than 12:00 Noon, New York City time, one Banking Day after the
date of such notice. The proceeds of such Revolving Loans shall be immediately
made available by the Administrative Agent to the Swingline Bank for application
by the Swingline Bank to the repayment of the Refunded Swingline Loans.
18
(c) If prior to the time a Revolving Loan would have otherwise
been made pursuant to Section 3.2(b), one of the events described in clause (f)
or (g) of Article 11 shall have occurred and be continuing with respect to the
Borrower or if for any other reason, as determined by the Swingline Bank in its
sole discretion, Revolving Loans may not be made as contemplated by Section
3.2(b), each Revolving Bank shall, on the date such Revolving Loan was to have
been made pursuant to the notice referred to in Section 3.2(b) (the "Refunding
Date"), purchase for cash an undivided participating interest in then
outstanding Swingline Loans by paying to the Swingline Bank an amount (the
"Swingline Participation Amount") equal to (i) such Revolving Bank's Revolving
Percentage times (ii) the sum of the aggregate principal amount of Swingline
Loans then outstanding that were to have been repaid with such Revolving Loans.
(d) Whenever, at any time after the Swingline Bank has
received from any Revolving Bank such Bank's Swingline Participation Amount, the
Swingline Bank receives any payment on account of the Swingline Loans, the
Swingline Bank will distribute to such Revolving Bank its Swingline
Participation Amount (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Revolving Bank's participating
interest was outstanding and funded and, in the case of principal and interest
payments, to reflect such Revolving Bank's pro rata portion of such payment if
such payment is not sufficient to pay the principal of and interest on all
Swingline Loans then due); provided, however, that in the event that such
payment received by the Swingline Bank is required to be returned, such
Revolving Bank will return to the Swingline Bank any portion thereof previously
distributed to it by the Swingline Bank.
(e) Each Revolving Bank's obligation to make the Revolving
Loans referred to in Section 3.2(b) and to purchase participating interests
pursuant to Section 3.2(c) shall be absolute and unconditional and shall not be
affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right that such Revolving Bank or the Borrower may
have against the Swingline Bank, the Borrower or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of an Event of Default or the
failure to satisfy any of the other conditions specified in Article 8; (iii) any
adverse change in the condition (financial or otherwise) of the Borrower; (iv)
any breach of this Agreement or any other Credit Document by the Borrower, any
of its Subsidiaries or any other Revolving Bank; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
ARTICLE 4. AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY
Section 4.1 L/C Commitment. (a) Subject to the terms and
conditions hereof, each Issuing Bank, in reliance on the agreements of the other
Revolving Banks set forth in Section 4.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower on any Banking Day during
the Commitment Period in such form as may be approved from time to time by the
Issuing Bank; provided that such Issuing Bank shall have no obligation to issue
any Letter of Credit if, after giving effect to such issuance, (i) the sum of
the aggregate then-outstanding principal amount of the Swingline Loans and the
aggregate then-outstanding amount of the L/C Obligations would exceed
$200,000,000 or (ii) the Total Revolving
19
Extensions of Credit would be in excess of the Total Revolving Commitment. Each
Letter of Credit shall (i) be denominated in Dollars and (ii) expire no later
than the earlier of (x) the first anniversary of its date of issuance and (y)
the date that is five Banking Days prior to the Termination Date, provided that
any Letter of Credit with a one-year term may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).
(b) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(c) No Issuing Bank shall at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Bank or any L/C Participant to exceed any limits imposed by, any
applicable Law.
Section 4.2 Procedure for Issuance of Letter of Credit. The
Borrower may from time to time request that the applicable Issuing Bank issue a
Letter of Credit by delivering to such Issuing Bank at its address for notices
specified herein an Application therefor, completed to the satisfaction of such
Issuing Bank, and such other certificates, documents and other papers and
information as such Issuing Bank may request. Upon receipt of any Application,
such Issuing Bank will process such Application and the certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and, after confirming with the
Administrative Agent that the provisions of the proviso to the first sentence of
Section 4.1 are then satisfied, shall promptly (and, in any event, within five
Banking Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) issue
the Letter of Credit requested thereby (but in no event shall such Issuing Bank
be required to issue any Letter of Credit earlier than two Banking Days after
its receipt of the Application therefor and all such other certificates,
documents and other papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise may
be agreed to by such Issuing Bank and the Borrower. Such Issuing Bank shall
furnish a copy of such Letter of Credit to the Borrower promptly following the
issuance thereof and shall promptly furnish to the Administrative Agent, which
shall in turn promptly furnish to the Revolving Banks, notice of the issuance of
each Letter of Credit (including the amount thereof); provided that, with
respect to commercial Letters of Credit, the Administrative Agent need not
furnish such notice of issuance to the Revolving Banks more frequently than once
per calendar quarter.
Section 4.3 Fees and Other Charges. (a) The Borrower will pay
a fee on all outstanding Letters of Credit for each day at a per annum rate
equal to the Eurodollar Rate Margin then in effect with respect to Eurodollar
Rate Loans hereunder times the aggregate undrawn face amounts of such Letters of
Credit on such day. Such fee shall be payable to the Administrative Agent, for
the account of the Revolving Banks, quarterly in arrears on each L/C Fee Payment
Date after the issuance date. In addition, the Borrower shall pay to the
relevant Issuing Bank for its own account a fronting fee of 0.25% per annum on
the undrawn and unexpired amount of each Letter of Credit, payable quarterly in
arrears on each L/C Fee Payment Date after the Issuance Date.
20
(b) In addition to the foregoing fees, the Borrower shall pay
or reimburse the relevant Issuing Bank for such normal and customary costs and
expenses as are incurred or charged by such Issuing Bank in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
Section 4.4 L/C Participations. (a) Each Issuing Bank
irrevocably agrees to grant and hereby grants to each L/C Participant, and, to
induce each Issuing Bank to issue Letters of Credit hereunder, each L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from each Issuing Bank, on the terms and conditions hereinafter
stated, for such L/C Participant's own account and risk an undivided interest
equal to such L/C Participant's Revolving Percentage in such Issuing Bank's
obligations and rights under each Letter of Credit issued hereunder and the
amount of each draft paid by such Issuing Bank thereunder. Each L/C Participant
unconditionally and irrevocably agrees with each Issuing Bank that, if a draft
is paid under any Letter of Credit for which such Issuing Bank is not reimbursed
in full by the Borrower in accordance with the terms of this Agreement, such L/C
Participant shall pay to such Issuing Bank upon demand at such Issuing Bank's
address for notices specified herein an amount equal to such L/C Participant's
Revolving Percentage of the amount of such draft, or any part thereof, that is
not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to an Issuing Bank pursuant to Section 4.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Bank under any Letter of Credit is
paid to such Issuing Bank within three Banking Days after the date such payment
is due, such L/C Participant shall pay to the Issuing Bank on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Rate during the period from and including the date such payment is
required to the date on which such payment is immediately available to such
Issuing Bank, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to Section
4.4(a) is not made available to the relevant Issuing Bank by such L/C
Participant within three Banking Days after the date such payment is due, such
Issuing Bank shall be entitled to recover from such L/C Participant, on demand,
such amount with interest thereon calculated from such due date at the rate per
annum applicable to Base Rate Loans hereunder. A certificate of the relevant
Issuing Bank submitted to any L/C Participant with respect to any amounts owing
under this Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Bank has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 4.4(a), such Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Bank), or any payment of interest on account thereof, such
Issuing Bank will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by such
Issuing Bank shall be required to be returned by such Issuing Bank, such L/C
Participant shall return to such Issuing Bank the portion thereof previously
distributed by such Issuing Bank to it.
21
Section 4.5 Reimbursement Obligation of the Borrower. The
Borrower agrees to reimburse each Issuing Bank on each date on which such
Issuing Bank notifies the Borrower (or on the immediately following Banking Day
if the Issuing Bank notifies the Borrower after 11:00 A.M., New York City time)
of the date and amount of a draft presented under any Letter of Credit issued
and paid by such Issuing Bank (a "Reimbursement Notice") for the amount of (a)
such draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Bank in connection with such payment (the amounts
described in the foregoing clauses (a) and (b) in respect of any drawing,
collectively, the "Payment Amount"). Each such payment shall be made to such
Issuing Bank at its address for notices specified herein in lawful money of the
United States of America and in immediately available funds. Interest shall be
payable on each Payment Amount from the date of the applicable drawing until
payment in full at the rate set forth in (i) until the third Banking Day
following the date of the applicable drawing, Section 7.8(b) and (ii)
thereafter, Section 7.8(c). Each drawing under any Letter of Credit shall
(unless (x) an event of the type described in clause (f) or (g) of Article 11
shall have occurred and be continuing with respect to the Borrower, in which
case the procedures specified in Section 4.4 for funding by L/C Participants
shall apply or (y) the Borrower notifies the Administrative Agent and the
Issuing Bank on the date of the Borrower's receipt of the relevant Reimbursement
Notice that the Borrower intends to provide the reimbursement contemplated by
this Section 4.5 with other sources of funds) constitute a request by the
Borrower to the Administrative Agent for a borrowing pursuant to Section 2.2 of
Base Rate Loans (or, at the option of the Borrower, a borrowing pursuant to
Section 3.2 of Swingline Loans) in the amount of such drawing. The Borrowing
Date with respect to such borrowing shall be the first date on which a borrowing
of Revolving Credit Loans (or, if applicable, Swingline Loans) could be made,
pursuant to Section 2.2 (or, if applicable, Section 3.2), if the Administrative
Agent had received a notice of such borrowing at the time the Administrative
Agent delivers the applicable Reimbursement Notice.
Section 4.6 Obligations Absolute. The Borrower's obligations
under this Article 4 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or have had against the relevant Issuing Bank, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
with each Issuing Bank that such Issuing Bank shall not be responsible for, and
the Borrower's Reimbursement Obligations under Section 4.5 shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. No Issuing Bank
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit issued by it, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Issuing Bank. The Borrower agrees that any action taken or omitted by an
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in
22
the Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of such Issuing Bank to the
Borrower.
Section 4.7 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the relevant Issuing Bank
shall promptly notify the Borrower of the date and amount thereof. The
responsibility of such Issuing Bank to the Borrower in connection with any draft
presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
Section 4.8 Applications. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent with the
provisions of this Article 4, the provisions of this Article 4 shall apply.
ARTICLE 5. CAF ADVANCES
Section 5.1 CAF Advances. Subject to the terms and conditions
of this Agreement, the Borrower may borrow CAF Advances from time to time under
the Total Revolving Commitment on any Banking Day during the CAF Advance
Availability Period. CAF Advances may be borrowed in amounts such that the Total
Revolving Extensions of Credit at any time shall not exceed the Total Revolving
Credit Commitments at such time. Within the limits and on the conditions
hereinafter set forth with respect to CAF Advances, the Borrower from time to
time may borrow, repay and reborrow CAF Advances.
Section 5.2 Procedure for CAF Advance Borrowing. (a) The
Borrower shall request CAF Advances by delivering a CAF Advance Request to the
Administrative Agent, not later than 12:00 Noon (New York City time) four
Banking Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M. (New York City time) one
Banking Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and having not more than three alternative CAF Advance Maturity Dates.
The CAF Advance Maturity Date for each CAF Advance shall be the date set forth
therefor in the relevant CAF Advance Request, which date shall be (i) not less
than 14 days after the Borrowing Date therefor, in the case of a Fixed Rate CAF
Advance, (ii) one, two, three or six months (or such longer period as the
Borrower may elect in the relevant CAF Advance Request) after the Borrowing Date
therefor, in the case of a LIBO CAF Advance and (iii) not later than the
Termination Date, in the case of any CAF Advance. The Administrative Agent shall
notify each Revolving Bank by facsimile transmission of the contents of each CAF
Advance Request received by the Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Revolving
23
Bank may elect, in its sole discretion, to offer irrevocably to make one or more
CAF Advances at the applicable LIBO Rate plus (or minus) a margin determined by
such Revolving Bank in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the
Administrative Agent, before 10:30 A.M. (New York City time) on the day that is
three Banking Days before the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date and the aggregate maximum amount of CAF Advances for all
CAF Advance Maturity Dates which such Revolving Bank would be willing
to make (which amounts may, subject to Section 5.1, exceed such
Revolving Bank's Revolving Commitment); and
(ii) the margin above or below the applicable LIBO Rate at
which such Revolving Bank is willing to make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 11:00 A.M. (New York
City time) on the date which is three Banking Days before the proposed Borrowing
Date of the contents of each such CAF Advance Offer received by it. If the
Administrative Agent, in its capacity as a Revolving Bank, shall elect, in its
sole discretion, to make any such CAF Advance Offer, it shall advise the
Borrower of the contents of its CAF Advance Offer before 10:15 A.M. (New York
City time) on the date which is three Banking Days before the proposed Borrowing
Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon
receipt of notice from the Administrative Agent of the contents of such CAF
Advance Request, each Revolving Bank may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at a rate of interest determined by
such Revolving Bank in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the
Administrative Agent before 9:30 A.M. (New York City time) on the proposed
Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance
Maturity Date, and the aggregate maximum amount for all CAF Advance
Maturity Dates, which such Revolving Bank would be willing to make
(which amounts may, subject to Section 5.1, exceed such Revolving
Bank's Revolving Commitment; and
(ii) the rate of interest at which such Revolving Bank is
willing to make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 10:00 A.M. (New York
City time) on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Revolving Bank, shall elect, in its sole discretion, to make any such CAF
Advance Offer, it shall advise the Borrower of the contents of its CAF Advance
Offer before 9:15 A.M. (New York City time) on the proposed Borrowing Date.
24
(d) Before 12:00 Noon (New York City time) three Banking Days
before the proposed Borrowing Date (in the case of CAF Advances requested by a
LIBO Rate CAF Advance Request) and before 11:00 A.M. (New York City time) on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the Borrower, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of Section 5.2(e), accept one or more of the offers made by
any Revolving Bank or Revolving Banks pursuant to Section 5.2(b) or
Section 5.2(c), as the case may be, and (B) reject any remaining offers
made by Revolving Banks pursuant to Section 5.2(b) or Section 5.2(c),
as the case may be.
(e) The Borrower's acceptance of CAF Advances in response to
any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Revolving Bank in its CAF Advance Offer
shall not exceed the maximum amount for such CAF Advance Maturity Date
specified in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Revolving Bank in its CAF
Advance Offer shall not exceed the aggregate maximum amount specified
in such CAF Advance Offer for all such CAF Advance Maturity Dates;
(iii) the Borrower may not accept offers for CAF Advances for
any CAF Advance Maturity Date in an aggregate principal amount in
excess of the maximum principal amount requested in the related CAF
Advance Request; and
(iv) if the Borrower accepts any of such offers, it must
accept offers based solely upon pricing for each relevant CAF Advance
Maturity Date and upon no other criteria whatsoever, and if two or more
Revolving Banks submit offers for any CAF Advance Maturity Date at
identical pricing and the Borrower accepts any of such offers but does
not wish to (or, by reason of the limitations set forth in Section 5.1,
cannot) borrow the total amount offered by such Revolving Banks with
such identical pricing, the Borrower shall accept offers from all of
such Revolving Banks in amounts allocated among them pro rata according
to the amounts offered by such Revolving Banks (with appropriate
rounding, in the sole discretion of the Borrower, to assure that each
accepted CAF Advance is an integral multiple of $1,000,000); provided
that if the number of Revolving Banks that submit offers for any CAF
Advance Maturity Date at identical pricing is such that, after the
Borrower accepts such offers pro rata in accordance with the foregoing
25
provisions of this paragraph, the CAF Advance to be made by any such
Revolving Bank would be less than $5,000,000 principal amount, the
number of such Revolving Banks shall be reduced by the Administrative
Agent by lot until the CAF Advances to be made by each such remaining
Revolving Bank would be in a principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(f) If the Borrower notifies the Administrative Agent that a
CAF Advance Request is cancelled pursuant to Section 5.2(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Revolving
Banks.
(g) If the Borrower accepts pursuant to Section 5.2(d)(ii) one
or more of the offers made by any Revolving Bank or Revolving Banks, the
Administrative Agent promptly shall notify each Revolving Bank which has made
such an offer of (i) the aggregate amount of such CAF Advances to be made on
such Borrowing Date for each CAF Advance Maturity Date and (ii) the acceptance
or rejection of any offers to make such CAF Advances made by such Revolving
Bank. Before 12:00 Noon (New York City time) on the Borrowing Date specified in
the applicable CAF Advance Request, each Revolving Bank whose CAF Advance Offer
has been accepted shall make available to the Administrative Agent at its office
set forth in Section 13.1 the amount of CAF Advances to be made by such
Revolving Bank, in immediately available funds. The Administrative Agent will
make such funds available to the Borrower as soon as practicable on such date at
such office of the Administrative Agent. As soon as practicable after each
Borrowing Date, the Administrative Agent shall notify each Revolving Bank of the
aggregate amount of CAF Advances advanced on such Borrowing Date and the
respective CAF Advance Maturity Dates thereof.
Section 5.3 CAF Advance Payments. (a) The Borrower shall pay
to the Administrative Agent, for the account of each Revolving Bank which has
made a CAF Advance, on the applicable CAF Advance Maturity Date the then unpaid
principal amount of such CAF Advance. The Borrower shall not have the right to
prepay any principal amount of any CAF Advance without the consent of the
Revolving Bank to which such CAF Advance is owed.
(b) The Borrower shall pay interest on the unpaid principal
amount of each CAF Advance from the Borrowing Date to applicable CAF Advance
Maturity Date at the rate of interest specified in the CAF Advance Offer
accepted by the Borrower in connection with such CAF Advance (calculated on the
basis of a (i) 360-day year for actual days elapsed, in the case of LIBO Rate
CAF Advances and (ii) 365/6-day year for actual days elapsed, the case of Fixed
Rate CAF Advances), payable on each applicable CAF Advance Interest Payment
Date.
(c) If any principal of, or interest on, any CAF Advance shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such CAF Advance shall, without limiting any rights of any Revolving
Bank under this Agreement, bear interest from the date on which such payment was
due at a rate per annum which is 2% above the rate which would otherwise be
applicable to such CAF Advance until the stated CAF Advance Maturity Date of
such CAF Advance, and for each day thereafter at a rate per annum which is 2%
above
26
the Base Rate, in each case until paid in full (as well after as before
judgment). Interest accruing pursuant to this paragraph (c) shall be payable
from time to time on demand.
Section 5.4 Evidence of Debt. The Borrower unconditionally
promises to pay to the Administrative Agent, for the account of each Revolving
Bank that makes a CAF Advance, on the CAF Advance Maturity Date with respect
thereto, the principal amount of such CAF Advance. The Borrower further
unconditionally promises to pay interest on each such CAF Advance for the period
from and including the Borrowing Date of such CAF Advance on the unpaid
principal amount thereof from time to time outstanding at the applicable rate
per annum determined as provided in, and payable as specified in, Section
5.3(b). Each Revolving Bank shall maintain in accordance with its usual practice
appropriate records evidencing indebtedness of the Borrower to such Revolving
Bank resulting from each CAF Advance of such Revolving Bank from time to time,
including the amounts of principal and interest payable and paid to such
Revolving Bank from time to time in respect of such CAF Advance. The
Administrative Agent shall maintain the Register pursuant to Section 7.1(c), and
a record therein for each Revolving Bank, in which shall be recorded (i) the
amount of each CAF Advance made by such Revolving Bank, the CAF Advance Maturity
Date thereof, the interest rate applicable thereto and each CAF Advance Interest
Payment Date applicable thereto, and (ii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower on account of such CAF Advance.
The entries made in the Register and the records of each Revolving Bank
maintained pursuant to this Section 5.4 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Revolving Bank or the Administrative Agent to maintain the
Register or any such record, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
CAF Advances made by such Revolving Bank in accordance with the terms of this
Agreement.
Section 5.5 Certain Restrictions. A CAF Advance Request may
request offers for CAF Advances to be made on not more than one Borrowing Date
and to mature on not more than three CAF Advance Maturity Dates. No CAF Advance
Request may be submitted earlier than five Banking Days after submission of any
other CAF Advance Request.
ARTICLE 6. MONEY MARKET ADVANCES
Section 6.1 Procedure for Borrowing of Money Market Advances.
(a) The Borrower (directly or through an agent or representative) may at any
time and from time to time request any one or more of the Banks to make offers
to make Money Market Loans to the Borrower on any Banking Day during the
Commitment Period in the manner set forth below. Each such Bank may, but shall
have no obligation to, make such offer, and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Article 6.
(b) In the event that the Borrower desires to borrow a Money
Market Loan from a Bank, the Borrower (directly or through an agent or
representative) shall request that such
27
Bank provide a quotation to the Borrower of the terms under which such Bank
would be willing to provide such Money Market Loan.
(c) In the event that the Borrower elects to accept a Bank's
offer for a Money Market Loan, the Borrower (directly or through an agent or
representative) shall provide telephonic notice to such Bank of its election by
no later than 90 minutes after the time that such offer was received by the
Borrower. The failure of the Borrower to provide such notice of acceptance in a
timely manner shall be deemed to constitute a rejection of the offer of such
Bank. Any Money Market Loan to be made by a Bank pursuant to this Article 6
shall be made by the Bank crediting an account specified by the Borrower with
the amount of such advance in same day funds promptly upon receipt of the
Borrower's timely acceptance of the offer of such Bank with respect to such
Money Market Loan.
(d) Each Bank that shall make a Money Market Loan pursuant to
this Section 6.1 shall promptly notify the Administrative Agent of the amount
and term of such Money Market Loan.
Section 6.2 Evidence of Money Market Advances. The Borrower
agrees to forward to the Bank with respect to a Money Market Loan written
evidence of such Money Market Loan by providing, on the date upon which such
Money Market Loan is made, documents, in form and substance reasonably
acceptable to both the Borrower and such Bank, executed and delivered by a duly
authorized officer of the Borrower, confirming the amount so borrowed, the rate
of interest applicable thereto and the maturity thereof (with such Money Market
Loan being due and payable on such date of maturity); provided that the failure
of the Borrower to provide such documents shall not impair the obligation of the
Borrower to repay any Money Market Loan borrowed by it. All borrowings pursuant
to this Article shall bear interest at the rate (or upon the basis, as the case
may be) quoted to the Borrower by the relevant Bank in its quotation described
in Section 6.1(b) above, regardless of any change in the interest rate between
the time of quoting and the time of borrowing.
Section 6.3 Acceleration of Money Market Advances. Upon the
occurrence and during the continuance of an Event of Default, each Bank that has
Money Market Loans outstanding may declare its Money Market Loans (with any
applicable interest thereon) to be immediately due and payable without the
consent of, or notice to, any other Bank; provided that if such event is an
Event of Default specified in clause (f) or (g) of Article 11 with respect to
the Borrower, such Bank's Money Market Loans (and any applicable interest
thereon) shall automatically become immediately due and payable.
Section 6.4 Prepayment of Money Market Advances. In the event
that the availability under any Revolving Bank's Revolving Commitment has been
reduced on account of Money Market Loans made by it to a level that is
insufficient to permit such Revolving Bank to lend its ratable share of any
Revolving Loan requested to be made hereunder, the Borrower shall repay such
Revolving Bank's outstanding Money Market Loans simultaneously with or prior to
the borrowing of such Revolving Loans (which repayment may be financed with
proceeds of such Revolving Loans and shall be subject to the provisions of
Section 7.14) by the amount
28
necessary to cause its Available Revolving Commitment (before giving effect to
the borrowing of such Revolving Loan, but after giving effect to the application
of proceeds thereof) to be at least equal to its ratable share of any such
Revolving Loan.
Section 6.5 Money Market Advances are Not Loans. (a) The
Borrower and any Bank may at any time and from time to time enter into written
agreements that provide for procedures for soliciting and extending Money Market
Loans that differ from those specified in this Article 6 (other than the
provisions of Sections 6.1(d), 6.4 and 6.5(b) hereof, which shall apply to each
Money Market Loan). As between the Borrower and such Bank such agreements shall
supersede the provisions of such paragraphs to the extent specified therein.
(b) Notwithstanding anything to the contrary contained herein,
Money Market Loans shall be deemed not to be extensions of credit under this
Agreement or under the Notes and the rights and obligations of the Borrower in
respect of Money Market Loans shall be deemed not to be rights and obligations
of the Borrower hereunder or under the Notes; provided that Money Market Loans
shall be considered to be extensions of credit under this Agreement for purposes
of calculating the availability under any Revolving Bank's Revolving Commitment.
ARTICLE 7. GENERAL PROVISIONS APPLICABLE TO EXTENSIONS OF CREDIT
Section 7.1 Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of the appropriate Revolving Bank or the Swingline Bank, as the case
may be, (i) the then unpaid principal amount of each Revolving Loan of such
Revolving Bank on the Termination Date (or on such earlier date on which the
Loans become due and payable in accordance with the terms of this Agreement) and
(ii) the then unpaid principal amount of each Swingline Loan of the Swingline
Bank on the Termination Date (or on such earlier date on which the Loans become
due and payable in accordance with the terms of this Agreement). The Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in Section 7.8.
(b) Each Bank shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Bank resulting from each Loan of such Bank from time to time, including the
amounts of principal and interest payable and paid to such Bank from time to
time under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower,
shall maintain at its Agency Office register (the "Register") for the
recordation of the names and addresses of the Banks, and the Register shall
contain a subaccount therein for each Bank, in which shall be recorded (i) the
amount of each Loan made hereunder and any Note evidencing such Loan, the Type
of such Loan and each Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Bank hereunder and (iii) both the amount of any sum received by
the Administrative Agent
29
hereunder from the Borrower and each Bank's share thereof. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Banks shall treat each Person whose
name is recorded in the Register as the owner of the Loans, L/C Obligations and
any Notes evidencing such Loans recorded therein for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Bank (with respect to any entry relating to such Bank's Loans and other
extensions of credit) at any reasonable time and from time to time upon
reasonable prior notice.
(d) The entries made in the Register and the accounts of each
Bank maintained pursuant to Section 7.1(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Bank or the Administrative Agent to maintain the Register or any
such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Bank in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Bank (which request shall be delivered to
Administrative Agent (A) within 45 days following the date hereof, in the case
of a Bank which is a party hereto on the date hereof, (B) within 30 days
following the recording of the relevant Assignment and Acceptance Agreement, in
the case of any Assignee or (C) in either case, within any longer period as the
Administrative Agent and the Borrower shall agree), the Borrower will execute
and deliver to such Bank a promissory note of the Borrower evidencing any
Revolving Loans or Swingline Loans, as applicable, of such Bank, substantially
in the forms of Exhibit E-1 or E-2, respectively (collectively, the "Notes"),
with appropriate insertions as to date and principal amount; provided that
(unless the Borrower and the Administrative Agent otherwise agree) no Notes
shall be delivered to the Banks until the date which is 90 days after the date
hereof.
Section 7.2 Facility Fee, etc. (a) The Borrower hereby agrees
to pay to the Administrative Agent, for the ratable account of the Revolving
Banks, a facility fee for each day in the amount equal to the Applicable
Facility Fee Rate in effect on such day times the amount of the Total Revolving
Commitments (regardless of the utilization thereof) on such day. Such facility
fee shall accrue from and after the Closing Date and shall be payable quarterly,
in arrears, on each L/C Fee Payment Date and on the Termination Date.
(b) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates previously agreed to in writing by the
Borrower and the Administrative Agent.
Section 7.3 Termination or Reduction of Revolving Commitments.
The Borrower shall have the right, upon not less than three Banking Days' notice
to the Administrative Agent, to terminate the Revolving Commitments or, from
time to time, to reduce the amount of the Revolving Commitments; provided that
no such termination or reduction of Revolving Commitments shall be permitted if,
after giving effect thereto and to any prepayments of the Revolving Loans and
Swingline Loans made on the effective date thereof, (x) the Total
30
Revolving Extensions of Credit would exceed the Total Revolving Commitments or
(y) the Available Revolving Commitment of any Revolving Bank would be less than
zero. Any such reduction shall be in an amount equal to $10,000,000, or a whole
multiple of $1,000,000 in excess thereof, and shall reduce permanently the
Revolving Commitments then in effect.
Section 7.4 Optional Prepayments. The Borrower may at any time
and from time to time prepay the Loans (other than CAF Advances, which may be
prepaid only with the consent of the Revolving Bank to which such CAF Advance is
owed), in whole or in part, without premium or penalty, upon irrevocable notice
delivered to the Administrative Agent at least three Banking Days prior thereto
in the case of Eurodollar Rate Loans and at least one Banking Day prior thereto
in the case of Base Rate Loans, which notice shall specify (a) the date and
amount of prepayment, (b) whether the prepayment is of Eurodollar Rate Loans or
Base Rate Loans and (c) if such prepayment is of Eurodollar Rate Loans and the
Borrower so elects, the particular Eurodollar Tranches to be so prepaid;
provided, that if a Eurodollar Rate Loan is prepaid on any day other than the
last day of the Interest Period applicable thereto, the Borrower shall also pay
any amounts owing pursuant to Section 7.14. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Bank thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Loans that are Base Rate Loans and Swingline Loans) accrued interest
to such date on the amount prepaid. Partial prepayments of Revolving Loans shall
be in an aggregate principal amount of $10,000,000 or a whole multiple of
$1,000,000 in excess thereof. Partial prepayments of Swingline Loans shall be in
an aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof.
Section 7.5 Mandatory Prepayments and Commitment Reductions.
On the last day of the Commitment Period, the Commitments shall terminate and
(unless such termination occurs pursuant to Article 11 of this Agreement, in
which case the provisions of such Article 11 shall govern) all principal,
interest and other amounts owing hereunder shall be immediately due and payable.
Section 7.6 Conversion and Continuation Options. (a) Subject
to the provisions of Section 7.7, the Borrower may elect from time to time to
convert any amount of Eurodollar Rate Loans to Base Rate Loans by delivering a
Notice of Borrowing (substantially in the form of Exhibit C-3) to Agent prior to
12:00 Noon, New York City time, at least one Banking Day prior to the requested
date of conversion. Subject to the provisions of Section 7.7, the Borrower may
elect from time to time to convert any amount of Base Rate Loans (other than
Swingline Loans) to Eurodollar Rate Loans by delivering a Notice of Borrowing
(substantially in the form of Exhibit C-3) to Agent prior to 12:00 Noon, New
York City time, at least three Banking Days' prior to the requested date of
conversion. Any such Notice of Borrowing with respect to a conversion to
Eurodollar Rate Loans shall be irrevocable and shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of any such
Notice of Borrowing, Agent shall promptly notify each affected Bank thereof. All
or any part of outstanding Eurodollar Rate Loans and Base Rate Loans may be
converted as provided herein, provided that no Base Rate Loan may be converted
into a Eurodollar Rate Loan when any Event of Default has
31
occurred and is continuing and the Administrative Agent has or the Majority
Banks have determined that such a conversion is not appropriate.
(b) Subject to the provisions of Section 7.7, any Eurodollar
Rate Loan may be continued as such upon the expiration of then current Interest
Period with respect thereto by the Borrower delivering a Notice of Borrowing
(substantially in the form of Exhibit C-2) to the Administrative Agent, prior to
12:00 Noon (New York City time) on the third Banking Day prior to the last day
of then current Interest Period, specifying the length of the next Interest
Period to be applicable to such Loans, provided that no Eurodollar Rate Loan may
be continued as such when any Event of Default has occurred and is continuing
and the Administrative Agent has or the Majority Banks have determined that such
a continuation is not appropriate and provided, further, that if the Borrower
shall fail to give such notice or if such continuation is not permitted such
Eurodollar Rate Loans shall be automatically converted to Base Loans on the last
day of such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each affected Bank thereof.
Section 7.7 Limitations on Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions and continuations of Eurodollar Rate Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts and be made
pursuant to such elections so that, (a) after giving effect thereto, the
aggregate principal amount of the Eurodollar Rate Loans comprising each
Eurodollar Tranche shall be equal to $10,000,000 or a whole multiple of
$1,000,000 in excess thereof and (b) no more than 15 Eurodollar Tranches shall
be outstanding at any one time.
Section 7.8 Interest Rates and Payment Dates. (a) Each
Eurodollar Rate Loan shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the Eurodollar Rate
determined for such day plus the Eurodollar Rate Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to (x) in the case of the Loans, the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this Section plus 2% or (y) in the case of Reimbursement Obligations, the
rate applicable to Base Rate Loans plus 2%, and (ii) if all or a portion of any
interest payable on any Loan or Reimbursement Obligation or any facility fee or
other amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate then applicable to Base Rate Loans plus
2%, in each case, with respect to clauses (i) and (ii) above, from the date of
such non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on (i) with respect
to any Base Rate Loan, the last day of each March, June, September and December
to occur while such Loan is
32
outstanding and the Termination Date, (ii) with respect to any Eurodollar Rate
Loan having an Interest Period of three months or shorter, the last day of such
Interest Period, (iii) with respect to any Eurodollar Rate Loan having an
Interest Period longer than three months, each day that is three months, or a
whole multiple thereof, after the first day of such Interest Period and the last
day of such Interest Period and (iv) as to any Loan (other than any Revolving
Credit Loan that is a Base Rate Loan and any Swingline Loan), the date of any
repayment or prepayment made in respect thereof. Notwithstanding the foregoing,
interest accruing pursuant to paragraph (c) of this Section shall be payable
from time to time on demand.
Section 7.9 Computation of Interest and Fees. (a) Interest
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to Base Rate Loans the rate
of interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. Fees and other amounts payable hereunder
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Banks of each determination of
a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Banks of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Banks in the absence of manifest
error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to Section 7.8(a).
Section 7.10 Inability to Determine Interest Rate. If prior
to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Banks which will hold a majority in principal amount of the Loans
to which such Interest Period is to apply that the Eurodollar Rate
determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Banks (as conclusively
certified by such Banks) of making or maintaining their affected Loans
during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Banks as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Rate Loans under the relevant Facility
requested to be made on the first day of such Interest Period
33
shall be made as Base Rate Loans, (y) any Loans under the relevant Facility that
were to have been converted on the first day of such Interest Period to
Eurodollar Rate Loans shall be continued as Base Rate Loans and (z) any
outstanding Eurodollar Rate Loans under the relevant Facility shall be
converted, on the last day of then-current Interest Period, to Base Rate Loans.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Rate Loans under the relevant Facility shall be made or continued as
such, nor shall the Borrower have the right to convert Loans under the relevant
Facility to Eurodollar Rate Loans.
Section 7.11 Pro Rata Treatment and Payments. (a) Each
borrowing by the Borrower from the Banks hereunder, each payment by the Borrower
on account of any facility fee and any reduction of the Commitments of the Banks
shall be made pro rata according to the respective Revolving Percentages of the
relevant Banks.
(b) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Banks.
(c) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the relevant Banks, at the Funding Office, in Dollars
and in immediately available funds. The Administrative Agent shall distribute
such payments to the relevant Banks promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on the Eurodollar Rate
Loans) becomes due and payable on a day other than a Banking Day, such payment
shall be extended to the next succeeding Banking Day. If any payment on a
Eurodollar Rate Loan becomes due and payable on a day other than a Banking Day,
the maturity thereof shall be extended to the next succeeding Banking Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Banking Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
then applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified
in writing by any Bank prior to a borrowing that such Bank will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Bank is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Bank shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Rate for the period until such
Bank makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Bank with respect to
any amounts owing under this paragraph shall be conclusive in the absence of
manifest error. If such Bank's share of such borrowing is not made available to
the Administrative Agent
34
by such Bank within three Banking Days of such Borrowing Date, the
Administrative Agent shall also be entitled to recover such amount with interest
thereon at the rate per annum applicable to Base Rate Loans under the relevant
Facility, on demand, from the Borrower. The failure of any Bank to make the Loan
to be made by it on any date shall not relieve any other Bank of its obligation,
if any, hereunder to make its Loan on such date, but no Bank shall be
responsible for the failure of any other Bank to make any Loan to be made by
such other Bank.
(e) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Banks their respective pro rata shares of
a corresponding amount. If such payment is not made to the Administrative Agent
by the Borrower within three Banking Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Bank to
which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Rate. Nothing herein shall be deemed to limit the rights
of the Administrative Agent or any Bank against the Borrower.
Section 7.12 Increased Costs and Capital Requirements. (a) In
the event that at any time or from time to time after the date of this
Agreement, any Directive, or a change in any existing or future Directive
(including any change resulting from the operation of any transitional or
phase-in requirements), or in the interpretation or application thereof by any
governmental or judicial authority, or any action pursuant thereto, or
compliance by the Administrative Agent or any Bank or any Bank Holding Company
with any request or Directive imposed or modified by any central bank or by any
other financial, monetary or other governmental authority:
(i) shall (A) impose, increase, modify or apply any reserve
(including basic, supplemental, marginal and emergency reserves, but
excluding reserve requirements which are expressly included in the
determination of any interest rate pursuant to the provisions hereof),
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities with or for the account of,
or credit extended by, or any other acquisition of funds by, any office
of the Administrative Agent, any Bank or any Bank Holding Company; or
(B) impose on the Administrative Agent, any Bank or any Bank Holding
Company any fee, charge, tax (other than "Taxes," "Other Taxes," and
"Excluded Taxes" subject to the provisions of Section 7.13) or
condition with respect to this Agreement, any Note, any Application,
any Letter of Credit, any Commitment or any part thereof, or any sums
outstanding or payable hereunder or thereunder; and the result of any
of the foregoing is to increase the cost to the Administrative Agent,
any Bank or any Bank Holding Company of making or maintaining such
Commitment, or any Eurodollar Rate Loan or Letter of Credit or to
reduce the amount of any sum received or receivable with respect to
such Commitment, any Eurodollar Rate Loan, any Letter of Credit or any
interest, fees or other sums payable hereunder or under any Note by an
amount deemed by such Bank to be
35
material, then within ten Banking Days following demand by the
Administrative Agent or such Bank (which demand, if any, shall be made
within six months following the occurrence of the event or circumstance
giving rise to such increased cost or reduced amount receivable), the
Borrower shall pay with respect to any affected Commitment (including
Eurodollar Rate Loans or Letters of Credit thereunder), promptly for
the account of the Administrative Agent or such Bank, such additional
amount or amounts as the Administrative Agent or such Bank, in good
faith, certifies in writing to the Borrower (together with sufficient
detail to quantify such additional amount) shall compensate the
Administrative Agent, such Bank or Bank Holding Company for the amount
of such increased cost or reduced amount receivable, such certification
to be conclusive and binding for all purposes hereof absent manifest
error; or
(ii) shall impose, modify or deem applicable any capital
adequacy or similar requirement (including without limitation a request
or requirement which affects the manner in which any Bank or any Bank
Holding Company allocates capital resources to its commitments,
including its obligations hereunder) and as a result thereof, in the
sole opinion of such Bank, the rate of return on capital of such Bank
or Bank Holding Company as a consequence of its obligations hereunder
or in respect of any Letter of Credit is or will be reduced to a level
below that which such Bank or Bank Holding Company could have achieved
but for such circumstances by an amount deemed by such Bank to be
material, then and in each such case upon notice to the Borrower
through the Administrative Agent (which notice, if any, shall be made
within six months following the occurrence of the event or circumstance
giving rise to such reduced rate of return), the Borrower shall pay to
such Bank such additional amount or amounts as shall compensate such
Bank for such reduction in rate of return for (A) any Eurodollar Rate
Loans outstanding under any Interest Period commencing after such
notification, (B) any Letters of Credit with respect to the period
after the end of the calendar month in which such notification was
given and (C) any portion of the affected Bank's Commitment outstanding
with respect to the period after the end of the calendar month in which
such notification was given. If a Bank determines that it may be
entitled to claim any additional amounts pursuant to this Section
during the next succeeding Interest Period or month, as the case may
be, it shall promptly notify, through the Administrative Agent, the
Borrower and each other Bank of the event by reason of which it has
become so entitled together with sufficient detail to quantify such
additional amount. A certificate as to any such additional amount or
amounts submitted by a Bank, through the Administrative Agent, to the
Borrower and the other Banks shall, in the absence of manifest error,
be final and conclusive. In determining such amount, a Bank may use any
reasonable averaging and attribution methods.
(b) Any Bank claiming any additional amounts payable pursuant
to this Section shall use its reasonable best efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office, if the making of such a
36
change would avoid the need for or reduce the amount of, any such additional
amounts which would otherwise be payable hereunder and would not, in the
reasonable judgment of such Bank, be otherwise disadvantageous to such Bank.
(c) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreement and obligations of the Borrower
contained in this Section 7.12 shall survive the payment in full of the amounts
owing hereunder and under the Notes and the termination of this Agreement.
Section 7.13 Taxes. (a) Subject to clause (e) below, any and
all payments by the Borrower hereunder shall be made free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, (i) in the case of each Bank and the Administrative Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Bank or the Administrative Agent (as the case may
be) is organized or any political subdivision thereof, (ii) in the case of each
Bank with respect to payments made hereunder, taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction of such Bank's Applicable
Lending Office, or any political subdivision thereof and (iii) in the case of
each Bank and the Administrative Agent, taxes imposed by the United States by
means of withholding taxes if and to the extent that such withholding taxes
shall be in effect and shall be applicable on the date hereof under current laws
and regulations (including judicial and administrative interpretations thereof)
to payments to be made for the account of such Bank's Applicable Lending office,
or to the Administrative Agent (all taxes described in subclauses (i), (ii) and
(iii) being referred to as "Excluded Taxes" and all taxes, levies, imposts,
deductions, charges, withholdings and liabilities not described in subclauses
(i), (ii) and (iii) being hereinafter referred to as "Taxes"). If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Bank or the Administrative Agent, (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) such Bank or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had not such
deductions been made, (ii) the Borrower shall make such deductions, and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Law (and shall be
entitled to any "Tax Credit" with respect to such payment pursuant to clause (i)
of this Section).
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies (other than Excluded Taxes) which arise from any payment made
hereunder or from the execution, delivery or registration or filing or recording
of, or otherwise with respect to, this Agreement or document delivered hereunder
(hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Bank and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section) paid by such Bank or the Administrative
Agent (as the case may be) and any liability (including penalties, interest and
37
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This indemnification shall be
made within 30 days from the date such Bank or the Administrative Agent (as the
case may be) makes written demand therefor. If, in the reasonable opinion of the
Borrower or such Bank, any amount has been paid with respect to Taxes or Other
Taxes which are not correctly or legally asserted, such Bank will cooperate with
the Borrower (such cooperation to be without expense or liability to such Bank)
in seeking to obtain a refund of such amount; provided, that, such Bank shall
not be required to cooperate in seeking to obtain a refund unless (i) if such
Bank reasonably requests, the Borrower has delivered to such Bank an opinion of
independent tax counsel selected by the Borrower and reasonably acceptable to
such Bank to the effect that there is a reasonable possibility of success, (ii)
such Bank has received from the Borrower satisfactory indemnification for any
liability, loss, cost or expense arising out of or relating to the effort to
obtain such refund, and (iii) the Borrower shall have indemnified such Bank for
the payment of such Taxes or Other Taxes pursuant to this clause (c). Each Bank
and the Administrative Agent, as the case may be, will promptly (within 30 days)
notify the Borrower of the assertion of any liability by any taxing authority
with respect to Taxes or Other Taxes and any payment by such Bank or the
Administrative Agent of such Taxes or Other Taxes; provided, that, the failure
to give such notice shall not relieve the Borrower of its obligations hereunder
to make indemnification for any such liability except that the Borrower shall
not be liable for penalties or interest (x) accruing after such 30 day period
until such time as it receives the notice contemplated above, after which time
it shall be liable for interest and penalties accruing after such receipt or (y)
to the extent that such penalties or interest arise as a direct result of such
failure to give notice.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will (as to Taxes paid by it) furnish to the Administrative Agent, at
the Agency Office, the original or a certified copy of a receipt or other
evidence satisfactory to the Administrative Agent of payment thereof.
(e) On or before the Closing Date in the case of each Bank
originally a party hereto, or on or before the effective date of the Assignment
and Acceptance Agreement pursuant to which it became a Bank in the case of an
Assignee, and within 30 days following the first day of each calendar year or if
otherwise reasonably requested from time to time by the Borrower or the
Administrative Agent, each Bank organized under the laws of a jurisdiction
outside the United States shall provide the Administrative Agent and the
Borrower with three counterparts of each of the forms prescribed by the Internal
Revenue Service (Form 1001 or 4224, or successor form(s), as the case may be) of
the United States certifying as to such Bank's (if applicable) status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to such Bank hereunder. Unless the Borrower
and the Administrative Agent have received within 10 days after the Borrower or
the Administrative Agent requests such forms or other documents satisfactory to
them indicating that payments hereunder are not subject to United States
withholding tax, the Borrower or the Administrative Agent (if not withheld by
the Borrower) shall withhold taxes from such payments at the applicable
statutory rate, without any obligation to "gross-up" or make such Bank or the
Administrative Agent whole under clause (a) of this Section, provided, however,
that, the Borrower shall have the obligation to make such Bank or the
Administrative Agent whole and to "gross-up" under clause (a) of this Section,
if the
38
failure to so deliver such forms or make such statements (other than the forms
and statements required to be delivered on or made prior to the Closing Date or
on the effective date of the Assignment and Acceptance Agreement in the case of
an Assignee) is the result of the occurrence of an event (including, without
limitation, any change in Law) which (alone or in conjunction with other events)
renders such forms inapplicable, that would prevent such Bank or the
Administrative Agent from making the statements contemplated by such forms or
which removes or reduces an exemption (whether partial or complete) from
withholding tax previously available to such Bank or the Administrative Agent.
Each Bank (and the Administrative Agent, if applicable) will promptly notify the
Borrower of the occurrence (when known to it) of an event contemplated by the
foregoing proviso. Upon request of the Borrower, each Bank which is organized
under the laws of the United States or any State thereof shall provide the
Borrower and the Administrative Agent with two duplicates of a duly completed
Form W-9 or successor form.
(f) Any Bank claiming any additional amounts payable pursuant
to this Section shall use its reasonable best efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office, if the making of such a change
would avoid the need for or reduce the amount of, any such additional amounts
which may thereafter accrue and would not, in the reasonable judgment of such
Bank, be otherwise disadvantageous to such Bank.
(g) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreement and obligations of the Borrower
contained in this Section 7.13 shall survive the payment in full of the amounts
owing hereunder and under the Notes (and the termination of this Agreement) for
a period expiring concurrently with the expiration of the statute of limitations
applicable to claims made by the tax authorities to collect Taxes or Other
Taxes.
(h) Each Bank (and the Administrative Agent with respect to
payments to the Administrative Agent for its own account) agrees that (i) it
will take all reasonable actions by all usual means to maintain all exemptions,
if any, available to it from the United States withholding taxes (whether
available by treaty, existing administrative waiver, by virtue of the location
of any Bank's Applicable Lending Office or otherwise) and (ii) otherwise
cooperate with the Borrower to minimize amounts payable by the Borrower under
this Section; provided, however, that, each Bank and the Administrative Agent
shall not be obligated by reason of this clause (h) to disclose any information
regarding its tax affairs or tax computations or to reorder its tax or other
affairs or tax or other planning.
(i) If any Bank shall receive a credit or refund from a taxing
authority with respect to, and actually resulting from, an amount of Taxes or
Other Taxes actually paid to or on behalf of such Bank by the Borrower (a "Tax
Credit"), such Bank shall promptly notify the Borrower of such Tax Credit. If
such Tax Credit is received by such Bank in the form of cash, such Bank shall
promptly pay to the Borrower the amount so received with respect to the Tax
Credit. If such Tax Credit is not received by such Bank in the form of cash,
such Bank shall pay the amount of such Tax Credit not later than the time
prescribed by applicable Law for filing the return (including extensions of
time) for such Bank's taxable period which includes the period in
39
which such Bank receives the economic benefit of such Tax Credit. In any event,
the amount of any Tax Credit payable by a Bank to the Borrower pursuant to this
clause (i) shall not exceed the actual amount of cash refunded to, or credits
received and usable by, such Bank from a taxing authority. In determining the
amount of any Tax Credit, a Bank may use such apportionment and attribution
rules as such Bank customarily employs in allocating taxes among its various
operations and income sources and such determination shall be conclusive absent
manifest error. The Borrower further agrees promptly to return to a Bank the
amount paid to the Borrower with respect to a Tax Credit by such Bank if such
Bank is required to repay, or is determined to be ineligible for, a Tax Credit
for such amount.
Section 7.14 Indemnity. The Borrower agrees to indemnify each
Bank and to hold each Bank harmless from any loss or expense that such Bank may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Rate Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Rate Loans after the Borrower has
given a notice thereof in accordance with the provisions of this Agreement or
(c) the making of a prepayment of Eurodollar Rate Loans (including, without
limitation, any prepayment made pursuant to the provisions of Section 7.5 or
7.15) on a day that is not the last day of an Interest Period with respect
thereto. The amount to be so indemnified by the Borrower shall be (x) paid to
each Bank, through the Administrative Agent, within ten Banking Days following
demand by such Bank and (y) shall be the amount equal to the excess of (i) the
amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Eurodollar Rate Margin included therein, if
any) over (ii) the amount of interest (as reasonably determined by such Bank)
that would have accrued to such Bank on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any amounts payable pursuant to this Section
submitted to the Borrower by any Bank shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
40
Section 7.15 Additional Action in Certain Events. If any event
or condition described in Section 7.12 or 7.13 has occurred and is continuing
that increases the cost to the Borrower of the Loans, Commitments or Letters of
Credit by any Bank or Banks, the Borrower may (after paying any accrued amounts
required to be paid pursuant to Section 7.12 or 7.13 hereof for the period prior
to the taking of such action) either:
(a) require any Bank so affected by such event or condition to
transfer or assign, in whole (but not in part), without recourse, its
Commitment and Loans hereunder in accordance with the provisions of
Section 13.11(a) to one or more Assignees (which need not be existing
Banks hereunder) identified to it by the Borrower; provided that (x) no
Bank shall be required to assign all or any portion of its Commitments
and Loans pursuant to this Section 7.15 unless and until such Bank
shall have received from such Assignees one or more payments which, in
an aggregate, are at least equal to the aggregate outstanding principal
amount of the Loans (other than CAF Advances) owing to such Bank and
all accrued interest and other amounts owing on account thereof and (y)
any CAF Advances owing to such Bank shall (at the election of the
Borrower) either remain outstanding in accordance with their terms (in
which case the Borrower shall remain liable for any such amounts
required to be paid pursuant to Section 7.12 or 7.13) or be prepaid by
the Borrower (together with accrued interest through the date of
prepayment and, in the case of a LIBO Rate CAF Advance, any "breakage"
costs resulting from such prepayment); or
(b) prepay in full the Loans and terminate the Commitment of
any Bank so affected by such event or condition, upon giving the
Administrative Agent and such Bank or Banks at least five Banking Days'
prior irrevocable notice thereof specifying the date of prepayment and,
upon such prepayment and termination, the Commitment of such affected
Bank shall be terminated; provided that no such prepayment and
termination shall be permitted (x) during such time as an Event of
Default (or event which, with the giving of notice or lapse of time or
both, would constitute an Event of Default) has occurred and is
continuing or (y) if, after giving effect thereto (and to the related
reallocation of participating interests in Swingline Loans and L/C
Obligations) the Total Revolving Extensions of Credit exceed the Total
Revolving Commitments then in effect. Any such prepayment hereunder
shall be made by the Borrower, without premium, together with interest
thereon and any other amounts payable hereunder, on the date specified
in such notice.
ARTICLE 8. CONDITIONS OF COMMITMENTS
Section 8.1 Conditions Precedent to Closing Date. The
agreement of each Bank to make the initial extension of credit requested to be
made by it hereunder is subject to the satisfaction, prior to or concurrently
with the making of such extension of credit on the Closing Date, of the
following conditions precedent:
41
(a) Definitive Documentation. The Administrative Agent shall
have received counterparts hereof, duly executed and delivered by the
Borrower and each Lender.
(b) Legal Opinion. The Administrative Agent shall have
received a favorable opinion of Steven M. Woghin, General Counsel to
the Borrower, substantially in the form of Exhibit D hereto.
(c) Fees. The Banks, the Co-Syndication Agents, the
Documentation Agent and the Administrative Agent shall have received
all fees required to be paid on or before the Closing Date and all
expenses for which invoices have been presented to the Borrower at
least three Banking Days before the Closing Date.
Promptly following the Closing Date, the Administrative Agent shall deliver (or
cause to be delivered) to each Bank a copy of each document, instrument and
agreement provided to the Administrative Agent by the Borrower pursuant to this
Section 8.1.
Section 8.2 Conditions Precedent to Each Extension of Credit.
The Commitment of each Bank to make each extension of credit (including, without
limitation, the initial extensions of credit) shall be subject to the further
conditions precedent that, on the date of such extension of credit, the
following statements shall be true (and the delivery of a Notice of Borrowing
shall be deemed to constitute a representation and warranty by Borrower that on
the date of such extension of credit such statements are true):
(a) The representations and warranties contained in
Article 9 of this Agreement are correct in all material respects on and
as of the date of such extension of credit, before and after giving
effect to such extension of credit, and to any other extensions of
credit to be made contemporaneously therewith, and to the application
of the proceeds therefrom, as though made on and as of such date
(except to the extent that such representations and warranties are
specifically limited to a prior date, in which case such
representations and warranties shall be true and correct in all
material respects on and as of such prior date).
(b) No event has occurred and is continuing, or would
result from such extension of credit or from any other extensions of
credit to be made contemporaneously therewith, or from the application
of the proceeds therefrom, which constitutes, or with the lapse of time
or the giving of notice or both would constitute, an Event of Default.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Banks to enter into
this Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Administrative Agent
and each Bank that:
42
Section 9.1 Organization of Credit Parties. Each of the
Borrower and each Material Subsidiary of the Borrower is duly organized and
existing under the Laws of the jurisdiction of its formation, and is properly
qualified to do business and in good standing in, and where necessary to
maintain its rights and privileges has complied with the fictitious name statute
of, every jurisdiction where the failure to maintain such qualification, good
standing or compliance could reasonably be expected to materially adversely
affect the Borrower's ability to perform its obligations hereunder.
Section 9.2 Authorization of Credit Documents. The execution,
delivery and performance of this Agreement and all other Credit Documents to
which the Borrower is a party are within the Borrower's corporate powers and
have been duly authorized. This Agreement has been validly executed and
delivered on behalf of the Borrower.
Section 9.3 Government Approvals. (a) No consent, exemption or
other action by, or notice to or filing with, any governmental authority or
other Person is necessary in connection with the execution, delivery,
performance or enforcement of this Agreement or any other Credit Document, other
than (i) any consents, exemptions, actions, notices or filings which have been
obtained and remain in full force and effect or (ii) for which the failure to
make or obtain would not be reasonably likely to have a Material Adverse Effect.
Section 9.4 No Conflicts. The execution, delivery and
performance of this Agreement and the other Credit Documents to which the
Borrower and its Subsidiaries are parties, and the consummation of the
transactions contemplated hereby and thereby, will not (a) violate (i) the
certificate of incorporation or by-laws of the Borrower, (ii) any material Law
or (iii) any provision of any contract, agreement, indenture or instrument to
which the Borrower or any Material Subsidiary is a party or by which any of its
properties is bound, other than any such provision the violation of which would
not reasonably be expected to have a Material Adverse Effect or (b) result in
the creation or imposition of any Lien, except Liens permitted under Section
10.2(a) hereof.
Section 9.5 Enforceability. This Agreement, each Note (if any)
and any Application is a legal, valid and binding agreement of the Borrower,
enforceable against the Borrower in accordance with its terms, subject to
bankruptcy and similar laws affecting the enforcement of creditors' rights
generally and subject to the availability of equitable remedies where equitable
remedies are sought.
Section 9.6 Title to Property. Each of the Borrower and each
Material Subsidiary of the Borrower has good and marketable title to its
properties and assets (other than those properties and assets the loss of which
would not reasonably be expected to have a Material Adverse Effect) free and
clear of all Liens or rights of others, except for Liens permitted by Section
10.2(a).
Section 9.7 Compliance with Law. Each of the Borrower and each
Material Subsidiary is in compliance with all applicable Laws (including,
without limitation, those
43
relating to hazardous materials or wastes or hazardous or toxic substances),
where the failure to maintain such compliance could reasonably be expected to
have a Material Adverse Effect.
Section 9.8 No Litigation. Except as disclosed in the notes to
the Borrower's financial statements referred to in Section 9.10, there is no
litigation, investigation or proceeding (including, without limitation, those
alleging violation of any applicable Law relating to hazardous materials or
wastes, or hazardous or toxic substances) of or before any arbitrator or any
governmental or judicial authority which is pending or, to the knowledge of the
Borrower, threatened against the Borrower or any of its properties or assets, or
any Subsidiary of the Borrower or any of its property or assets, and no
preliminary or permanent injunction or order by a state or Federal Court has
been entered in connection with any Credit Document or any of the transactions
contemplated hereby, which (in any such case) could reasonably be expected to
have a Material Adverse Effect.
Section 9.9 Subsidiaries. Schedule 2 to this Agreement sets
forth a complete and correct description of all Material Subsidiaries of the
Borrower on the date hereof.
Section 9.10 Financial Information. The most recent financial
statements of the Borrower delivered pursuant to Section 10.1(h), and all other
financial information and data furnished in writing by the Borrower to the
Administrative Agent or the Banks in connection with the transaction
contemplated hereby are complete in all material respects, and such financial
statements have been prepared in accordance with GAAP consistently applied and
fairly present in all material respects the consolidated financial position and
results of operations of the Borrower as of the date thereof (subject, in the
case of interim financial statements, to normal year-end audit adjustments).
When compared to such financial position and results of operation on the date of
such most recent financial statements, there has been no material adverse change
in the Borrower's consolidated financial position or ability to perform its
obligations under this Agreement and the Notes. Neither the Borrower nor any
Subsidiary has any contingent obligations, liabilities for taxes or other
outstanding financial obligations which are not disclosed in such statements,
information and data, other than (i) those which, if due and payable by the
Borrower and its Subsidiaries, would not have a Material Adverse Effect, (ii)
those which have been disclosed to the Administrative Agent and the Banks in
writing and (iii) amounts owing hereunder.
Section 9.11 Margin Regulations. (a) The Borrower and its
Subsidiaries are not engaged in the business of extending credit for the purpose
of purchasing or carrying Margin Stock and (b) no proceeds of any Loan will be
used in a manner which would violate, or result in a violation of, such
Regulation T, U, or X.
Section 9.12 ERISA. There are no Plans (other than as
permitted by Section 10.2(h)) or Multiemployer Plans.
Section 9.13 Investment Company Act. The Borrower is not an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended. The Borrower is
not a "holding company" or a
44
"subsidiary" of a "holding company" as defined in the Public Utility Holding
Company Act of 1935, as amended.
Section 9.14 Taxes. The Borrower and each of its Material
Subsidiaries has filed or caused to be filed all United States federal and other
material tax returns which to the knowledge of the Borrower are required to be
filed, and has paid all taxes shown to be due and payable on said returns or any
material assessments made against it or any of its property and all other
material taxes, fees and other charges imposed on it or on any of its property
by any governmental authority (other than those the amount or validity of which
is currently being contested in good faith by appropriate proceedings and with
respect to which reserves and conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); and, to the
knowledge of the Borrower, no claims are being asserted with respect to any such
taxes, fees or other charges which could reasonably be expected to have a
Material Adverse Effect.
ARTICLE 10. COVENANTS OF CREDIT PARTIES
Section 10.1 Affirmative Covenants. So long as any principal
or interest shall be owing hereunder, any Letter of Credit remains outstanding
or any of the Commitments shall remain available hereunder, the Borrower will,
unless the Majority Banks shall otherwise consent in writing:
(a) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Material Subsidiaries to pay and discharge, before the same
shall become delinquent, (i) all material taxes, assessments and
governmental charges or levies imposed upon it or upon its property,
and (ii) all lawful claims which, if unpaid, might by Law become a Lien
upon its property (other than, in the case of this clause (ii) only,
those Liens which are permitted pursuant to Section 10.2(a)); provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge or claim
which is being contested in good faith and by proper proceedings and as
to which adequate reserves have been established.
(b) Maintenance of Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, or cause to be maintained for each
of its Material Subsidiaries, with responsible and reputable insurance
companies or associations (or through reasonable and customary programs
of self-insurance) insurance in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the
Borrower or any such Material Subsidiary operates.
(c) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each Material Subsidiary to preserve and maintain,
(i) its corporate existence, rights (charter and statutory), and
franchises, and (ii) in the case of the Borrower, ownership and control
by the Borrower of all Material Subsidiaries, and will continue, and
cause each Material Subsidiary to continue, in the business of
designing and licensing the use of
45
computer software products and related technology and others directly
related thereto and employ all of its and their respective assets in
such business and others directly related thereto; provided, however,
that nothing contained in this Section 10.1(c) shall be deemed to
prohibit any merger or consolidation permitted pursuant to Section
10.2(b) or any asset sale permitted by Section 10.2(d).
(d) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, with the requirements of all applicable Laws
noncompliance with which could reasonably be expected to have a
Material Adverse Effect.
(e) Visitation Rights. At any time and from time to time
during normal business hours and subject to reasonable advance notice
under the circumstances, permit the Administrative Agent or any of the
Banks or any agents or representatives thereof, to examine (at the
location where normally kept) and make abstracts from the records and
books of account of, and visit the properties of the Borrower and its
Subsidiaries and to discuss the affairs, finances and accounts of the
Borrower and its Subsidiaries with any of their respective officers or
directors and discuss the affairs, finances and accounts of the
Borrower and its Subsidiaries with its independent certified public
accountants and permit such accountants to disclose to the
Administrative Agent or any of the Banks any and all financial
statements and other reasonably requested information of any kind that
they may have with respect to the Borrower and its Subsidiaries.
(f) Keeping of Books. Keep, and cause each of its Material
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and its Subsidiaries in a form such
that the Borrower may readily produce no less frequently than at the
end of each of its fiscal quarters, financial statements on a
consolidated basis in accordance with GAAP consistently applied
(subject, in the case of the first three fiscal quarters of each fiscal
year, to year end audit adjustments).
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Material Subsidiaries to maintain and preserve, all
of its material properties which are used or useful in the conduct of
its business in good working order and condition, ordinary wear and
tear excepted, including all material copyrights, trademarks, service
marks, mask works, trade names, brands, patent rights, processes,
designs and other material intellectual property, and all registrations
and applications for registration thereof, and any licenses with
respect to any of the foregoing which are used or useful in the conduct
of its business.
(h) Reporting Requirements. Furnish to the Administrative
Agent and each Bank:
46
(i) Quarterly Financial Statements of the
Borrower. As soon as available and in any event within 60 days
after the end of each of the first three fiscal quarters of
each fiscal year of the Borrower, consolidated balance sheets
of the Borrower and its Subsidiaries as of the end of such
quarter and consolidated statements of income and cash flow of
the Borrower and its Subsidiaries for the period commencing at
the beginning of such fiscal year and ending with the end of
such quarter, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by a Responsible
Officer of the Borrower as having been prepared in accordance
with GAAP consistently applied, together with a Compliance
Certificate as of the end of such fiscal quarter;
(ii) Annual Financial Statements of the Borrower.
As soon as available and in any event within 105 days after
the end of each fiscal year of the Borrower, the consolidated
balance sheets of the Borrower and its Subsidiaries as of the
end of such fiscal year and the consolidated statements of
income and retained earnings and the consolidated statements
of cash flow of the Borrower and its Subsidiaries for such
fiscal year, in the case of such consolidated financial
statements, certified, without material qualifications or
limitations as to scope of the audit, by KPMG LLP or other
independent public accountants of recognized standing
acceptable to the Majority Banks, as having been prepared in
accordance with GAAP, consistently applied, together with a
Compliance Certificate as of the end of such fiscal year;
(iii) Notice of Defaults. As soon as possible and
in any event within five Banking Days after a Responsible
Officer of the Borrower reasonably could be expected to have
obtained knowledge thereof, notice of the occurrence of each
Event of Default and each event which, with the giving of
notice or lapse of time, or both, would constitute an Event of
Default, continuing on the date of such statement, together
with a statement of a Responsible Officer of the Borrower
setting forth details of such Event of Default or event and
the action which the Borrower has taken and proposes to take
with respect thereto;
(iv) Shareholder Reports and SEC Filings.
Promptly after the sending or filing thereof, copies of all
reports which the Borrower sends to any of its security
holders, and copies of all reports and registration statements
(other than the Exhibits thereto, which the Borrower shall be
required to provide to the Administrative Agent or a Bank only
upon written request therefor) which the Borrower files with
the Securities and Exchange Commission or any national
securities exchange;
(v) PBGC Notices. Promptly and in any event
within two Banking Days after receipt thereof by the Borrower
or any of its ERISA Affiliates from the Pension Benefit
47
Guaranty Corporation, copies of each notice received by the
Borrower or any such ERISA Affiliate of the intention of the
Pension Benefit Guaranty Corporation to terminate any Plan or
to have a trustee appointed to administer any Plan;
(vi) Litigation. Promptly after the commencement
thereof, notice of all actions, suits and proceedings before
any court or governmental department, commission, board,
bureau, agency, or instrumentality domestic or foreign, which
is pending or (to the knowledge of the Borrower) threatened
against the Borrower or any of its Subsidiaries or any of its
properties or assets which would reasonably be expected to
have a Material Adverse Effect;
(vii) Public Debt Rating. Within three Banking
Days following the occurrence of any change therein, a
certificate of a Responsible Officer of the Borrower setting
forth the new Public Debt Rating of the Borrower;
(viii) Additional Information. Such other
information respecting the condition or operations, financial
or otherwise, of the Borrower or any Subsidiary as the
Majority Banks may from time to time reasonably request; and
(ix) Significant Events. Promptly upon any
Responsible Officer of the Borrower obtaining knowledge
thereof, a written statement from a Responsible Officer of the
Borrower describing the details of any circumstance or event
which has had or would reasonably be expected to have a
Material Adverse Effect.
Section 10.2 Negative Covenants. So long as any principal or
interest shall be owing hereunder or any of the Commitments shall remain
available hereunder, the Borrower will not, without the written consent of the
Majority Banks:
(a) Liens. Create, incur, assume or suffer to exist any Lien
upon or with respect to any of its assets or property, or permit any
Material Subsidiary so to do, except: (i) Liens, if any, in favor of
the Administrative Agent and the Banks collectively; (ii) Liens arising
in connection with workers' compensation, unemployment insurance and
other social security legislation; (iii) Liens in existence on the date
hereof which secure obligations disclosed in the financial statements
referred to in Section 9.10 or in the notes thereto; (iv) Liens placed
or existing at the time of any acquisition of property being acquired
by the Borrower or such Material Subsidiary; (v) Liens for property
taxes not yet due and payable and Liens for taxes not yet due or that
are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of
the Borrower or such Material Subsidiary, as the case may be, in
accordance with GAAP; (vi) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business that are not overdue for more than 30 days or that
are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the books of
the Borrower or such Material Subsidiary, as the case may be, in
accordance with GAAP; (vii) deposits to secure the performance of bids,
trade contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance
48
bonds and other obligations of a like nature incurred in the ordinary
course of business; (viii) easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of business
that, in the aggregate, are not substantial in amount, and that do not
in any case materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Borrower and its Subsidiaries; (ix) Liens in favor of the United States
of America or any other governmental agencies or entities for amounts
paid to the Borrower or any of its Subsidiaries as progress payments
under government contracts entered into by it; (x) Liens on assets of
Persons that become Subsidiaries after the date hereof, provided that
such Liens exist at the time the respective Persons become Subsidiaries
and are not created in anticipation thereof; (xi) Liens securing Debt
of the Borrower or any Material Subsidiary incurred to finance the
acquisition or improvement of fixed or capital assets or assumed in
connection with the acquisition of such fixed or capital assets,
provided that (A) such Liens shall be created substantially
simultaneously with the acquisition or improvement of such fixed or
capital assets, (B) such Liens do not at any time encumber any property
or assets other than the fixed or capital assets (and improvements
thereon) financed by such Debt, (C) the amount of Debt secured thereby
is not increased, (D) the amount of Debt initially secured thereby is
not more than 100% of the purchase price of such fixed or capital asset
or the cost of such improvement and (E) to the extent that the amount
of Debt initially secured thereby with respect to any single
transaction or related series of transactions exceeds $125,000,000, the
assets so acquired do not constitute all or substantially all of the
assets of the seller and its affiliates taken as a whole or of any
business unit thereof; (xii) Liens on accounts receivable of the
Borrower and its Subsidiaries to secure Debt incurred thereby on
account of accounts receivables financings; (xiii) Liens granted in any
extension, renewal, or replacement of any of the permitted Liens
described above; provided, however, that the principal amount of Debt
secured thereby shall not exceed the principal amount of Debt so
secured at the time such Lien was originally granted, and that such
extension, renewal or replacement shall be limited to all or part of
the property which secured the Lien so extended, renewed or replaced
(plus improvements and construction on such property), (xiv) Liens on
Margin Stock and (xv) other Liens which secure Debt of the Borrower and
its Material Subsidiaries in an aggregate principal amount not to
exceed $350,000,000 at any one time outstanding.
(b) Merger and Consolidation. Enter into any merger or
consolidation or permit any Material Subsidiary so to do, except that,
during such time as no Event of Default (or event which with the giving
of notice or lapse of time, or both, would constitute an Event of
Default) has occurred and is continuing, (i) the Borrower or any of its
Subsidiaries may merge or consolidate with any other Person (other than
the Borrower or any of its Subsidiaries, as to which the provisions of
clauses (ii) and (iii) below shall apply); provided that the Borrower
or such Subsidiary is the surviving entity thereof, (ii) the Borrower
may merge or consolidate with any wholly-owned Subsidiary; provided
that the Borrower is the surviving entity thereof and (iii) any
wholly-owned Subsidiary of the Borrower may merge or consolidate with
another wholly-owned Subsidiary of the Borrower (it being understood
that, for purposes of this clause (iii) only, the existence of
directors' and other nominees' qualifying shares which are not held,
directly or indirectly,
49
by the Borrower shall not, in itself, cause a Subsidiary to fail to be
wholly-owned by the Borrower).
(c) Obligations to be Pari Passu. Permit its obligations under
this Agreement and the Notes to rank at any time less than pari passu
as to priority of payment and in all other respects with all other
unsecured and unsubordinated Debt of the Borrower.
(d) Sale of Assets. Sell, lease or otherwise transfer or
dispose, or permit any Material Subsidiary of the Borrower to sell,
lease or otherwise transfer or dispose, of any assets which are
material to the conduct of the business of the Borrower and its
Subsidiaries taken as a whole, other than the sale, transfer or other
disposition of (i) assets from the Borrower to any of its wholly-owned
Subsidiaries or from any wholly-owned Subsidiary of the Borrower to the
Borrower or any other wholly-owned Subsidiary thereof, (ii) accounts
receivable of the Borrower and its Subsidiaries in connection with the
consummation of a receivables financing permitted by Section
10.2(a)(xii) and (iii) Margin Stock which is sold, transferred or
otherwise disposed of for not less than its fair market value.
(e) Fiscal Year. Change its fiscal year.
(f) Interest Coverage. Permit the ratio of (i) Consolidated
EBITDA of the Borrower and its Subsidiaries for any period of four
consecutive fiscal quarters to (ii) Consolidated Interest Expense of
the Borrower and its Subsidiaries for such period, to be less than 4.0
to 1.0.
(g) Leverage Ratio. Permit the Test Ratio for any period of
four consecutive fiscal quarters to be greater than 3.25 to 1.0.
(h) ERISA Plans. Create, permit or suffer to exist any Plan or
Multiemployer Plan, or permit any ERISA Affiliate to do so; provided,
however, that the Borrower may permit an ERISA Affiliate to maintain a
Plan if, but only to the extent that, all of the following conditions
are satisfied: (i) such ERISA Affiliate became an ERISA Affiliate after
the date of this Agreement; (ii) such Plan was in existence on the date
the ERISA Affiliate maintaining or contributing to it became an ERISA
Affiliate; (iii) such Plan is terminated, and the Borrower shall have
applied for any necessary approvals to effect a distribution of all
assets of such Plan, within 180 days of the date upon which such ERISA
Affiliate became an ERISA Affiliate and all of the assets of such Plan
are distributed within 180 days after the Borrower receives all such
approvals; (iv) the aggregate liabilities under Subtitle D of Title IV
of ERISA of the Borrower and its ERISA Affiliates with respect to such
Plans does not, at any time after the date upon which such ERISA
Affiliate becomes an ERISA Affiliate, exceed $25,000,000; (v) no demand
by the Pension Benefit Guaranty Corporation under ERISA sections 4062,
4063, or 4064 is outstanding against such ERISA Affiliate on the date
it becomes an ERISA Affiliate; and (vi) no lien described in ERISA
section 4068 upon the assets of such ERISA Affiliate is in existence on
the date it becomes an ERISA Affiliate.
50
(i) Dividends. To the extent that any Event of Default (or
event which with the giving of notice or lapse of time, or both, would
constitute an Event of Default) has occurred and is continuing or would
result therefrom, declare or pay, or permit any Subsidiary which is not
wholly-owned by the Borrower (other than directors' and other nominees'
qualifying shares) to declare or pay, any dividend (other than
dividends payable solely in common stock of the Borrower) on, or make
any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of:
(x) any shares of any class of equity interests of
the Borrower;
(y) any warrants or options to purchase any such
equity interests; or
(z) any subordinated Debt of the Borrower or any of
its Subsidiaries;
whether now or hereafter outstanding, or make any other distribution in
respect thereof, either directly or indirectly, whether in cash or
property or in obligations of the Borrower or any Subsidiary.
ARTICLE 11. EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall
occur and be continuing:
(a) Payments. The Borrower shall fail to pay any principal of
any of the Loans when the same becomes due and payable, or the Borrower
shall fail to pay interest or other sum due under this Agreement or any
Note or any Reimbursement Obligation within five Banking Days of the
date when the same becomes due and payable; or
(b) Representations and Warranties. Any representation or
warranty made or stated to be deemed to be made by the Borrower under
any Credit Document or in any Compliance Certificate or Borrowing
Certificate shall prove to have been incorrect in any material respect
when made or deemed to be made; or
(c) Covenants. The Borrower or any of its Subsidiaries shall
fail to perform or observe (i) any term, covenant or agreement
contained in Section 10.2(f) or (g) of this Agreement or (ii) any other
term, covenant or agreement contained in this Agreement (other than any
failure to pay, which is subject to clause (a) above) and (in the case
of this clause (ii) only) any such failure shall remain unremedied for
30 days after written notice thereof shall have been given to the
Borrower by the Administrative Agent or Banks holding at least 10% of
the Total Revolving Commitments; or
(d) Other Debts. The Borrower or any of its Material
Subsidiaries shall, either singly or in combination, fail to pay Debt
in excess of $25,000,000 in the aggregate
51
(excluding Debt specified in clause (a) above) for the Borrower and all
such Material Subsidiaries or Debt owing under the Existing $3 Billion
Agreement, or any interest or premium thereon, when due (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt; or any other default under any agreement or instrument
relating to any such Debt, or any other event, shall occur and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such
Debt; or any such Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(e) Judgments and Orders. Any judgment or order for the
payment of money in excess of $25,000,000 shall be rendered by a court
of competent jurisdiction against the Borrower or any of its Material
Subsidiaries and such judgment shall not have been vacated, discharged,
stayed or bonded pending appeal within 60 days from the entry thereof;
or
(f) Insolvency or Voluntary Proceedings. The Borrower or any
of its Material Subsidiaries is generally not paying or admits in
writing its inability to pay its debts as such debts become due, or
files any petition or action for relief under any bankruptcy,
reorganization, insolvency, or moratorium Law or any other Law for the
relief of, or relating to, debtors, now or hereafter in effect, or
makes any general assignment for the benefit of creditors, or takes any
corporate action in furtherance of any of the foregoing; or
(g) Involuntary Proceedings. An involuntary petition is filed
against the Borrower or any Material Subsidiary under any bankruptcy
statute now or hereafter in effect, or a custodian, receiver, trustee,
assignee for the benefit of creditors (or other similar official) is
appointed to take possession, custody or control of any substantial
part of the property of the Borrower or any of its Material
Subsidiaries, and (i) such petition or appointment is not set aside or
withdrawn or otherwise ceases to be in effect within 60 days from the
date of said filing or appointment, or (ii) an order for relief is
entered against the Borrower or such Material Subsidiary with respect
thereto; or
(h) Change of Control. Any Person or "group" (within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended) (i) shall have acquired beneficial ownership of 20%
or more of any outstanding class of capital stock of the Borrower
having ordinary voting power in the election of directors of the
Borrower (other than any such Person or "group" which owns such amount
of capital stock on the date of this Agreement) or (ii) shall obtain
the power (whether or not exercised) to elect a majority of the
Borrower's directors, except for any Person that held such interest or
had such power (as the case may be) continuously from a date which was
prior to the date of this Agreement;
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then, and in any such event:
(A) if such event is an event specified in clause (f) or (g)
of this Article 11 with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this
Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of then outstanding
Letters of Credit shall have presented the documents required
thereunder) and the Notes shall immediately become due and payable;
(B) if such event is any other Event of Default, either or
both of the following actions may be taken: (i) with the consent of the
Majority Banks, the Administrative Agent may, or upon the request of
the Majority Banks, the Administrative Agent shall, by notice to the
Borrower declare the Commitments to be terminated forthwith, whereupon
the Commitments shall immediately terminate; and (ii) with the consent
of the Majority Banks, the Administrative Agent may, or upon the
request of the Majority Banks, the Administrative Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement
(including, without limitation, all amounts of L/C Obligations, whether
or not the beneficiaries of then outstanding Letters of Credit shall
have presented the documents required thereunder) and the Notes to be
due and payable forthwith, whereupon the same shall immediately become
due and payable; and
(C) in either such event, the Administrative Agent shall upon
the request, or may with the consent, of the Majority Banks take such
actions hereunder and exercise such rights and remedies pursuant hereto
as the Administrative Agent may deem appropriate.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Bank and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Credit Documents. Amounts held in such cash collateral account shall
be applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder and under the Notes. After all
such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the Notes shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrower. The Borrower shall execute and deliver to the Administrative Agent,
for the account of the Issuing Bank and the L/C Participants, such further
documents and instruments as the Administrative Agent may request to evidence
the creation and perfection of the within security interest in such cash
collateral account.
53
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
ARTICLE 12. RELATIONSHIP OF ADMINISTRATIVE AGENT AND BANKS
Section 12.1 Authorization and Action. (a) Each Bank hereby
appoints and authorizes the Administrative Agent, as administrative agent on
behalf of such Bank, to take such action and to exercise such powers hereunder
as are delegated to the Administrative Agent by the terms thereof, together with
such powers as are reasonably incidental thereto. As to any (x) matters
requiring or permitting an approval, consent, waiver, election or other action
by a specified portion of Banks, (y) matters as to which, notwithstanding any
delegation of authority to the Administrative Agent, the Administrative Agent
has requested and received instructions from the Majority Banks, and (z) matters
not expressly provided for hereby, the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting only (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Banks (or, in the
case of matters described in clause (x) above, the specified portion of the
Banks), and such instructions shall be binding upon all Banks; provided,
however, that the Administrative Agent shall not be required to take any action
which exposes the Administrative Agent to personal liability or which is
contrary to this Agreement or applicable Law. The Administrative Agent agrees to
give to each Bank prompt notice of each notice given to it by the Borrower
pursuant to the terms hereof.
(b) Each Bank hereby appoints (i) each Co-Agent as a co-agent
on behalf of such Bank (ii) each Co-Syndication Agent as a co-syndication agent
on behalf of such Bank and (iii) the Documentation Agent as a documentation
agent on behalf of such Bank. Notwithstanding anything to the contrary contained
in this Agreement, the parties hereto hereby agree that no Co-Agent,
Co-Syndication Agent or Documentation Agent shall have any rights, duties or
responsibilities in its capacity as Co-Agent, Co-Syndication Agent or
Documentation Agent, as the case may be, and that no Co-Agent, Co-Syndication
Agent or Documentation Agent shall have the authority to take any action
hereunder in its capacity as such.
Section 12.2 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents, attorneys or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement except for its or their own
gross negligence or willful misconduct. Without limiting the generality of the
foregoing, the Administrative Agent: (i) may treat each Bank as the holder of
the right to payment of its outstanding Loans until the Administrative Agent
receives and accepts (together with any required transfer fee) an Assignment and
Acceptance Agreement signed by such Bank and its Assignee in form satisfactory
to the Administrative Agent and otherwise in accordance with the provisions of
this Agreement; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts if such
counsel, accountants or other experts are selected without gross negligence or
willful misconduct on the part of the
54
Administrative Agent; (iii) makes no warranty or representation to any Bank and
shall not be responsible to any Bank for any statements, warranties or
representations made in or in connection with this Agreement; (iv) except to the
extent specifically required under this Agreement, shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of the Borrower or to
inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
cable or telex) believed by it in good faith to be genuine and signed or sent by
the proper party or parties unless such action by the Administrative Agent
constitutes gross negligence or willful misconduct on its part.
Section 12.3 Administrative Agent and Affiliates. With respect
to its Commitment, the Loans made by it and the obligations of the Borrower owed
to it under this Agreement and the Notes as a Bank and with respect to any
Letter of Credit issued or participated in by it, the Administrative Agent shall
have the same rights and powers under this Agreement as any other Bank and may
exercise the same as though it were not the Administrative Agent; and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated, include the
Administrative Agent in its individual capacity. The Administrative Agent and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower,
any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if the Administrative
Agent were not the Administrative Agent and without any duty to account therefor
to the Banks.
Section 12.4 Bank Credit Decision. Each Bank acknowledges that
(a) it has, independently and without reliance upon the Administrative Agent or
any other Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement, (b) it will, independently and without reliance upon the
Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and (c) the
Administrative Agent has no duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other information
(other than obtained under the provisions of this Agreement) with respect
thereto, whether coming into its possession before the date hereof or at any
time thereafter.
Section 12.5 Indemnification. Each Bank agrees to indemnify
the Administrative Agent, each Co-Syndication Agent and the Documentation Agent
(to the extent not reimbursed by the Borrower), ratably according to the ratio
of such Bank's Commitments to the Commitments of all Banks, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent, the Co-Syndication Agent or the Documentation Agent in any
way relating to or arising out of
55
this Agreement or any action taken or omitted by the Administrative Agent,
Co-Syndication Agent or the Documentation Agent, as the case may be, hereunder,
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent, Co-Syndication Agent or the
Documentation Agent, as the case may be. Without limiting the foregoing, each
Bank agrees to reimburse the Administrative Agent promptly upon demand for such
Bank's ratable share (based on the proportion of all Commitments held by such
Bank) of any out-of-pocket expenses (including reasonable counsel fees) incurred
by the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement to the extent that
the Administrative Agent is not reimbursed for such expenses by the Borrower.
The provisions of this Section 12.5 shall survive termination of this Agreement.
Section 12.6 Successor Administrative Agent. The
Administrative Agent may resign at any time as the Administrative Agent under
this Agreement by giving 30 days' prior written notice thereof to the Banks and
the Borrower. Upon any such resignation, the Majority Banks shall have the right
to appoint a successor Administrative Agent thereunder (which successor
Administrative Agent shall be reasonably acceptable to the Borrower). If no
successor Administrative Agent shall have been so appointed by the Majority
Banks, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall (a) be either (i) a commercial bank organized
under the laws of the United States of America or of a state thereof or (ii) an
office of a commercial bank organized under the laws of a jurisdiction outside
of the United States which is located within the United States and is regulated
by the bank regulatory authorities of the United States or of a state thereof
and (b) have a combined capital and surplus of at least $500,000,000. Unless and
until a successor Administrative Agent shall have been appointed as above
provided, the retiring Administrative Agent shall serve as a caretaker
Administrative Agent unless dismissed by the Majority Banks. Upon the acceptance
of any appointment as the Administrative Agent under this Agreement by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from all duties and obligations of the Administrative
Agent arising thereafter under this Agreement. After any retiring Administrative
Agent's resignation or removal as the Administrative Agent under this Agreement,
the provisions of this Article 12 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent
hereunder.
ARTICLE 13. MISCELLANEOUS
Section 13.1 Notices. Except as provided in Article 6 with
respect to the matters therein specified, all notices, demands, instructions,
requests, and other communications required
56
or permitted to be given to, or made upon, any party hereto shall be in writing
and (except for financial statements and other related informational documents
to be furnished pursuant hereto which may be sent by first-class mail, postage
prepaid) shall be personally delivered or sent by registered or certified mail,
postage prepaid, return receipt requested, or by overnight courier, or by
prepaid telex, telecopy, or telegram (with messenger delivery specified) and
shall be deemed to be given for purposes of this Agreement on the day that such
writing is received by the Person to whom it is to be sent pursuant to the
provisions of this Agreement. Unless otherwise specified in a notice sent or
delivered in accordance with the foregoing provisions of this Section, notices,
demands, requests, instructions, and other communications in writing shall be
given to or made upon each party hereto at the address (or its telex or
telecopier numbers, if any) set forth (x) in the case of any Bank on the date
hereof, (y) as its address for notices on Schedule 1 hereto, in the case of any
Assignee, set forth in the relevant Assignment and Acceptance Agreement and (z)
in the case of the Borrower, beneath its signature hereto.
Section 13.2 Successors and Assigns. This Agreement shall bind
and inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that (a) the Borrower shall not assign this
Agreement or any of the rights of the Borrower hereunder or under any Note
without the prior written consent of all Banks and the Administrative Agent (the
giving of such consent to be in each Bank's and the Administrative Agent's sole
and absolute discretion), and any such purported assignment without such consent
shall be absolutely void, and (b) no Bank shall assign this Agreement or any of
the rights or obligations of such Bank hereunder or under any Note except in
accordance with Section 13.11.
Section 13.3 Amendments and Related Matters. Neither this
Agreement or any other Credit Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the provisions of
this Section 13.3. The Majority Banks and the Borrower may, or (with the written
consent of the Majority Banks) the Administrative Agent and the Borrower may,
from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Credit Documents (including amendments and
restatements hereof or thereof) for the purpose of adding any provisions to this
Agreement or the other Credit Documents or changing in any manner the rights of
the Banks or of the Borrower hereunder or thereunder or (b) waive, on such terms
and conditions as may be specified in the instrument of waiver, any of the
requirements of this Agreement or the other Credit Documents or any Event of
Default (or event which, with the giving of notice or lapse of time or both,
would constitute an Event of Default) and its consequences; provided, however,
that no such waiver and no such amendment, supplement or modification shall:
(i) forgive all or any part of the principal amount or extend
the final scheduled date of maturity of any Loan or Reimbursement
Obligation, reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Commitment of
any Bank, in each case without the consent of each Bank directly
affected thereby;
(ii) amend, modify or waive any provision of this Section or
reduce any percentage specified in the definition of Majority Banks,
consent to the assignment or
57
transfer by the Borrower of any of its rights and obligations under
this Agreement and the other Credit Documents, in each case without the
consent of all Banks;
(iii) amend, modify or waive any provision of Article 3
without the written consent of the Swingline Bank;
(iv) amend, modify or waive any provision of Section 7.11
without the consent of each Bank directly affected thereby; or
(v) amend, modify or waive any provision of Article 4 without
the consent of the Issuing Bank.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Banks and shall be binding upon the Borrower, the Banks,
the Administrative Agent and all future holders of the Loans and other
extensions of credit hereunder. In the case of any waiver, the Borrower, the
Banks and the Administrative Agent shall be restored to their former position
and rights hereunder and under the other Credit Documents, and any Event of
Default (or event which, with the giving of notice or the lapse of time or both,
would constitute an Event of Default) waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Event of
Default (or event which, with the giving of notice or the lapse of time or both,
would constitute an Event of Default), or impair any right consequent thereon.
Any such waiver, amendment, supplement or modification shall be effected by a
written instrument signed by the parties required to sign pursuant to the
foregoing provisions of this Section; provided, that delivery of an executed
signature page of any such instrument by facsimile transmission shall be
effective as delivery of a manually executed counterpart thereof.
Section 13.4 Costs and Expenses; Indemnification. (a)
Expenses. The Borrower agrees to pay on demand (i) all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution, delivery, modification and amendment of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect thereto and (ii) all reasonable costs and expenses of the
Administrative Agent and the Banks, if any (including, without limitation,
reasonable fees and expenses of in-house or outside counsel), in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
and restructuring of this Agreement, the Notes and the other documents to be
delivered hereunder.
(b) Indemnification. The Borrower agrees to indemnify the
Administrative Agent, each Co-Syndication Agent, the Documentation Agent, each
Bank and each officer, director, Affiliate, employee, agent or representative of
the Administrative Agent, a Co-Syndication Agent, the Documentation Agent, or a
Bank ("Bank Indemnitees") and hold each Bank Indemnitee harmless from and
against any and all liabilities, losses, damages, costs, and expenses of any
kind (including the reasonable fees and disbursements of counsel for any Bank
Indemnitee) ("Losses") in connection with any investigative, administrative, or
judicial proceeding, whether or not such Bank Indemnitee shall be designated a
party thereto (but if not a
58
party thereto, then only with respect to such proceedings where such Bank
Indemnitee (i) is subject to legal process (whether by subpoena or otherwise) or
other compulsion of law, (ii) believes in good faith that it may be so subject,
or (iii) believes in good faith that it is necessary or appropriate for it to
resist any legal process or other compulsion of law which is purported to be
asserted against it), which may be incurred by any Bank Indemnitee, relating to
or arising out of this Agreement or any of the other Credit Documents, any of
the transactions contemplated hereby or thereby, or any actual or proposed use
of proceeds of Loans or other extensions of credit hereunder; provided, however,
that the foregoing will not apply to any Losses of a Bank Indemnitee to the
extent they are found by a final decision of a court of competent jurisdiction
to have resulted from the gross negligence or willful misconduct of such Bank
Indemnitee.
(c) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreement and obligations of the
Borrower contained in this Section 13.4 shall survive the payment in full of the
amounts owing hereunder and the termination of this Agreement; provided that,
from and after the date upon which this Agreement is terminated, any request for
indemnity must be provided to the Borrower within six months following the
occurrence of the event giving rise thereto (or, if the amount of such claim is
not then reasonably determinable, within six months after such amount becomes
reasonably determinable).
Section 13.5 Oral Communications. The Administrative Agent
may, but is not required to, accept and act upon oral communications which it
reasonably believes to be from a Responsible Officer of the Borrower (or any
other natural person designated by such a Responsible Officer). Any oral
communication from the Borrower to the Administrative Agent (including telephone
communications) hereunder shall be immediately confirmed in writing by the
Borrower, but in the event of any conflict between any such oral communication
and the written confirmation thereof, such oral communication shall control if
the Administrative Agent has acted thereon prior to actual receipt of written
confirmation. The Borrower shall indemnify the Administrative Agent and hold the
Administrative Agent harmless from and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever (including
attorneys' fees) which arise out of or are incurred in connection with the
making of Loans or taking other action in reliance upon oral communications,
except that the Administrative Agent shall not be indemnified against its own
gross negligence or willful misconduct.
Section 13.6 Entire Agreement. This Agreement and the other
Credit Documents are intended by the parties hereto to be a final and complete
expression of all terms and conditions of their agreement with respect to the
subject matter thereof and supersede all oral negotiations and prior writings in
respect to the subject matter hereof.
Section 13.7 Governing Law. THIS AGREEMENT AND EACH OTHER
CREDIT DOCUMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF
THE STATE OF NEW YORK.
59
Section 13.8 Severability. The illegality or unenforceability
of any provision of this Agreement or any other Credit Document shall not in any
way affect or impair the legality or enforceability of the remaining provisions
of this Agreement or such Credit Document.
Section 13.9 Counterparts. This Agreement may be executed in
as many counterparts as may be deemed necessary or convenient, and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed an original but all such counterparts shall constitute
but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Agreement or any other Credit Document (including,
without limitation, any amendment, waiver, supplement or other modification
hereto) by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 13.10 Confidentiality. Unless otherwise required by
any Directive, the Administrative Agent and each Bank agrees not to disclose to
unrelated third parties information clearly marked as "Confidential" provided to
it pursuant to this Agreement, the other Credit Documents or any Compliance
Certificate, except that there shall be no obligation of confidentiality in
respect of (i) any information which may be generally available to the public or
becomes available to the public through no fault of the Administrative Agent or
such Bank; (ii) communications with actual or prospective participants, or
Assignees which undertake in writing to be bound by this Section 13.10; (iii)
any communications with the Administrative Agent or any Bank; (iv) the
Administrative Agent's or any Bank's directors, officers, employees and other
representatives and agents, and directors, officers, employees and other
representatives and agents of its Affiliates, legal counsel, auditors, internal
bank examiners and regulatory authorities having jurisdiction over such Bank,
and to the extent necessary or advisable in its judgment other experts or
consultants retained by it, if in the case of a person or entity other than a
director, officer, employee, legal counsel, auditor or internal bank examiner,
the Administrative Agent or such Bank obtains from such person or entity an
undertaking in writing as to confidentiality substantially identical to this
undertaking and (v) information which is compelled to be disclosed pursuant to
legal process or court order (provided that, to the extent practicable and
permitted by applicable Laws, prompt notice of such compulsion shall be given to
the Borrower in order to permit the Borrower to defend against such disclosure).
The Administrative Agent and each Bank shall be further permitted to disclose
any such confidential information to the extent relevant (in the reasonable
judgment of the Administrative Agent or such Bank, as the case may be) in
connection with any litigation in which the Borrower is an opposing party
(provided that the Administrative Agent or such Bank, as the case may be, shall
request that the court or other relevant judicial authority take action to
maintain the confidentiality of such information).
60
Section 13.11 Assignments and Participations. (a) Assignments.
Each Bank may, upon at least five Banking Days' notice to the Administrative
Agent and the Borrower assign to one or more financial institutions (an
"Assignee") all or a portion of its rights and obligations under this Agreement
and its Note (including, without limitation, all or a portion of its Commitment,
and the Loans); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of the assigning Bank's rights and
obligations under the relevant Commitment and Note being assigned (it being
understood that any such assignment need not be of a ratable share of the
Commitments and Notes held by the assigning Bank), (ii) unless the
Administrative Agent and the Borrower otherwise consent, the aggregate amount of
the Commitments and (without duplication) Loans of the assigning Bank being
assigned pursuant to each such assignment to an assignee which is not then a
Bank hereunder or an affiliate thereof (determined as of the date of the
Assignment and Acceptance Agreement with respect to such assignment) shall not
be less than $5,000,000 and, unless such assigning Bank is assigning its entire
Revolving Credit Commitment, shall not reduce the aggregate amount of the
Commitments retained by such Bank to less than $5,000,000, (iii) each such
assignment shall be to a financial institution, (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
approval, acceptance and recording an Assignment and Acceptance Agreement,
together with (except in the case of any assignment made pursuant to Section
7.15, in which event no such fee shall be due) a processing and recordation fee
of $3,500, and (v) except in the case of an assignment to an assignee which is a
Bank or an affiliate thereof, or an assignment which is made when an Event of
Default is continuing, the Borrower shall consent to such assignment, which
consent shall not be unreasonably withheld. Upon such execution, delivery,
approval, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance Agreement, (x) the Assignee thereunder shall
be a party hereto as a Bank and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance
Agreement, have the rights and obligations of a Bank hereunder and (y) the Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance Agreement,
relinquish its rights and be released from its obligations under this Agreement
and its Note (and, in the case of an Assignment and Acceptance Agreement,
covering all or the remaining portion of an assigning Bank's rights and
obligations under this Agreement and its Note, such Bank shall cease to be a
party hereto). Notwithstanding anything to the contrary contained herein, no
Assignee shall be entitled to receive compensation under Section 7.12 or 7.13
hereof to the extent that circumstances giving rise to such payment were in
effect on the date of the relevant assignment.
(b) Effect of Assignment. By executing and delivering an
Assignment and Acceptance Agreement, a Bank assignor thereunder and the Assignee
thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as expressly provided in such Assignment and Acceptance
Agreement, such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or any other Credit Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other Credit Document or any other instrument or
document furnished pursuant hereto; (ii) such assigning Bank makes no
representation or warranty and assumes no
61
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations hereunder or
any other instrument or document furnished pursuant hereto or with respect to
the taxability of payments to be made hereunder; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 9.10 and Section 10.1(h) and such
other Credit Documents and other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance Agreement; (iv) such Assignee will, independently and
without reliance upon the Administrative Agent, such assigning Bank or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such Assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vi) such Assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
(c) Recording of Assignments. The Administrative Agent shall
maintain at its Agency Office a copy of each Assignment and Acceptance Agreement
delivered to and accepted by it. The records of the Administrative Agent as to
the names and addresses of the Banks and the Commitments of, and principal
amount of the Loans owing to, each Bank from time to time shall be conclusive
and binding for all purposes, absent manifest error. The Borrower and the
Administrative Agent and the Banks may treat each Person indicated by the
records of the Administrative Agent to be a Bank hereunder as such for all
purposes of this Agreement. Upon request of the Borrower or any Bank from time
to time, the Administrative Agent shall inform the Borrower or such Bank, as the
case may be, of the identities of the Banks hereunder.
(d) Assignments Recorded. Upon its receipt of an Assignment
and Acceptance Agreement executed by an assigning Bank and an Assignee, the
Administrative Agent shall, if such Assignment and Acceptance Agreement has been
properly completed, and subject to the Borrower's consent as above provided and
payment by the parties thereto of the requisite processing and recordation fee
(i) accept such Assignment and Acceptance Agreement and (ii) record the
information contained therein in its records.
(e) Participations. Each Bank may sell participations to one
or more Persons in or to all or a portion of its rights and obligations under
this Agreement and its Note (including, without limitation, all or a portion of
its Commitments and the Loans and other extensions of credit owing to it);
provided, however, that (i) such Bank's obligations under this Agreement and its
Note(s) (including, without limitation, its Commitments to the Borrower
hereunder) shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Bank shall remain the owner of such Loans and other extensions of
credit for all purposes of this Agreement and its Note(s), and (iv) the
Borrower, the Administrative Agent, and the Banks shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement and its Note(s), provided, further, to the
extent of any such participation (unless otherwise stated therein
62
and subject to the preceding and succeeding provisos), the assignee or purchaser
of such participation shall, to the fullest extent permitted by law, have the
same rights and benefits hereunder as it would have if it were a Bank hereunder;
and provided, further, that each such participation shall be granted pursuant to
an agreement providing that the purchaser thereof shall not have the right to
consent or object to any action by the selling Bank (who shall retain such
right) other than an action which would (i) reduce principal of or interest on
any Loan or fees payable hereunder in which such purchaser has an interest, or
(ii) postpone any date fixed for payment of principal of or interest on any such
Loan or such fees; and provided, further, that notwithstanding anything to the
contrary in this clause (e), the provisions of Sections 7.12 and 7.13 hereof
shall apply to the purchasers of participations only to the extent, if any, that
the Bank selling such participation would be entitled to request additional
amounts under such Sections if such Bank had not sold or assigned such
participation.
(f) Funding by Special Purpose Funding Vehicles. Anything
herein to the contrary notwithstanding, any Bank (a "Granting Bank") may grant
to a special purpose funding vehicle ("SPC") of such Granting Bank, identified
as such in writing from time to time by the Granting Bank to the Administrative
Agent and the Borrower, the option to provide to the Borrower all or any part of
any Loan that such Granting Bank otherwise would be obligated to make to the
Borrower, provided that (i) nothing herein shall constitute a commitment by any
SPC to make any Loan and (ii) if an SPC elects not to exercise such option to
make a Loan or otherwise fails to provide all or any part thereof, the Granting
Bank shall remain obligated to make such Loan pursuant to the terms hereof. The
making of a Loan by an SPC hereunder shall be deemed to constitute a utilization
of the Commitment of the Granting Bank to the same extent, and as if, such Loan
were made by the Granting Bank. Each party hereto hereby agrees that no SPC
shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the related Granting Bank).
In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar proceedings under
the laws of the United States or any State thereof with respect to obligations
arising hereunder or under any other Credit Document. In addition,
notwithstanding anything to the contrary contained in Section 13.10 or this
Section 13.11, any SPC may (i) with notice to, but without the prior written
consent of, the Borrower or the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to its Granting Bank and (ii) disclose (subject to a written agreement by the
recipient to maintain the confidentiality thereof) any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of a surety, guarantee or credit or liquidity enhancement to such SPC.
The provisions of Sections 7.12 and 7.13 hereof shall apply to an SPC only to
the extent, if any, that the relevant Granting Bank would be entitled to request
additional amounts under such Sections if the SPC had not undertaken the funding
obligation of such Granting Bank.
63
(g) Assignment to Federal Reserve Bank. Anything herein to the
contrary notwithstanding, each Bank shall have the right to assign or pledge
from time to time any or all of its Commitment, Loans or other rights hereunder
to any Federal Reserve Bank.
Section 13.12 Waiver of Trial by Jury. THE BORROWER, THE
BANKS, AND THE ADMINISTRATIVE AGENT, TO THE MAXIMUM EXTENT THEY MAY LEGALLY DO
SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION, CAUSE OF ACTION, OR PROCEEDING ARISING UNDER OR WITH RESPECT TO THIS
AGREEMENT, THE OTHER CREDIT DOCUMENTS, OR IN ANY WAY CONNECTED WITH, OR RELATED
TO, OR INCIDENTAL TO, THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS
AGREEMENT, OR THE OTHER CREDIT DOCUMENTS, THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE, OR ENFORCEMENT HEREOF OR THEREOF, OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE. TO THE EXTENT
THEY MAY LEGALLY DO SO, THE BORROWER, THE BANKS AND THE ADMINISTRATIVE AGENT
HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING
SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 13.12 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER
OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
Section 13.13 Choice of Forum and Service of Process. The
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth under its signature
hereto or at such other address of which the Administrative Agent shall
have been notified pursuant thereto;
(c) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
64
(d) consents that any action or proceeding described in
Section 13.13(a) may be brought in the Courts of the State of New York,
the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof, and waives any
objection that it may now or hereafter have to the venue of any such
action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead
or claim the same.
Section 13.14 Remedies. The remedies provided to the
Administrative Agent and the Banks herein are cumulative and are in addition to,
and not in lieu of, any remedies provided by law. To the maximum extent
permitted by law, remedies may be exercised by the Administrative Agent or any
Bank successively or concurrently, and the failure to exercise any remedy shall
not constitute a waiver thereof, nor shall the single or partial exercise of any
remedy preclude any other or further exercise of such remedy or any other right
or remedy.
Section 13.15 Right of Set-Off. Upon the occurrence and during
the continuance of any Event of Default, each Bank is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set-off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Bank
to or for the credit or the account of the Borrower against an equivalent amount
of the amounts owing to such Bank hereunder which are then due and payable,
irrespective of whether or not such Bank shall have made any demand under this
Agreement. Each Bank agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application is made by such
Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Bank under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Bank may have.
Section 13.16 Effectiveness. This Agreement shall become
effective on the date (which date shall occur on or before the Closing Date)
upon which the Administrative Agent shall have received counterparts of this
Agreement, duly executed by the Borrower and the Banks listed on the signature
pages hereof.
65
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
COMPUTER ASSOCIATES INTERNATIONAL,
INC., a Delaware corporation
By
-----------------------------------------------
Title:
Address for Notices:
One Computer Associates Plaza
Islandia, New York, 11788-7000
Attn: Treasurer
Telecopier: (631) 342-4854
with a copy (other than in the case of
administrative notices) to:
Attn: General Counsel
Telecopier: (631) 342-4866
CREDIT SUISSE FIRST BOSTON, as the
Administrative Agent
By
-----------------------------------------------
Title:
By
-----------------------------------------------
Title:
66
CREDIT SUISSE FIRST BOSTON, as the Lead
Arranger and a Bank
By
--------------------------------------------
Title:
By
--------------------------------------------
Title:
BANK OF AMERICA, N.A., as a Co-
Syndication Agent and a Bank
By
--------------------------------------------
Title:
THE CHASE MANHATTAN BANK, as a
Bank
By
--------------------------------------------
Title:
BANK OF NOVA SCOTIA, as the
Documentation Agent and a Bank
By
--------------------------------------------
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Managing Agent and a Bank
By
--------------------------------------------
Title:
BANQUE NATIONALE DE PARIS, NEW
YORK, as a Managing Agent and a Bank
By
-----------------------------------------------
Title:
By
-----------------------------------------------
Title:
FUJI BANK LIMITED, NEW YORK, as a
Managing Agent and a Bank
By
-----------------------------------------------
Title:
HSBC BANK USA, as a Managing Agent and a
Bank
By
-----------------------------------------------
Title:
HYPO VEREINSBANK, as a Managing Agent
and a Bank
By
-----------------------------------------------
Title:
By
-----------------------------------------------
Title:
MELLON BANK, N.A., as a Managing Agent
and a Bank
By
-----------------------------------------------
Title:
68
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, New York Branch, as a
Managing Agent and a Bank
By
-------------------------------------------------------
Title:
By
-------------------------------------------------------
Title:
BANCA COMMERCIALE ITALIANA, New
York Branch, as a Co-Agent and a Bank
By
-------------------------------------------------------
Title:
By
-------------------------------------------------------
Title:
CREDIT LYONNAIS, New York Branch, as a
Co-Agent and a Bank
By
-------------------------------------------------------
Title:
DAI-ICHI KANGYO BANK, as a Co-Agent
and a Bank
By
-------------------------------------------------------
Title:
ROYAL BANK OF CANADA, as a Co-Agent
and a Bank
By
-------------------------------------------------------
Title:
WACHOVIA BANK, N.A. as a Co-Agent and a
Bank
By
-------------------------------------------
Title:
COMMERZBANK AKTIENGESELLSCHAFT
By
-------------------------------------------
Title:
By
-------------------------------------------
Title:
BANCA NAZIONALE DEL LAVORO S.p.A.-
NEW YORK BRANCH
By
-------------------------------------------
Title:
By
-------------------------------------------
Title:
ABN-AMRO BANK N.V.
By
-------------------------------------------
Title:
By
-------------------------------------------
Title:
BB L INTERNATIONAL (U.K.) LIMITED
By
-------------------------------------------
Title:
70
BANK ONE, N.A.(Main Office Chicago)
By
-------------------------------------------
Title:
FIRST UNION NATIONAL BANK
By
-------------------------------------------
Title:
FLEET BOSTON FINANCIAL
By
-------------------------------------------
Title:
SUMITOMO BANK LIMITED
By
-------------------------------------------
Title:
LANDESBANK SACHSEN GIROZENTRALE
By
-------------------------------------------
Title:
SANPAOLO IMI S.p.A
By
--------------------------------------------
Title:
By
--------------------------------------------
Title:
COMMERICA BANK
By
--------------------------------------------
Title:
SUNTRUST BANK
By
--------------------------------------------
Title:
BANK HAPOALIM B.M.
By
--------------------------------------------
Title:
By
--------------------------------------------
Title:
MITSUBISHI TRUST AND BANKING CORPORATION
By
--------------------------------------------
Title:
ARAB BANK PLC
By
---------------------------------------------
Title:
72
BANCO COMERCIAL PORTUGES
By
------------------------------------------
Title:
BANK OF TAIWAN, NEW YORK AGENCY
By
------------------------------------------
Title:
CAISSE DES DEPOTS
By
------------------------------------------
Title:
FIRST COMMERCIAL BANK
By
------------------------------------------
Title:
HUA NAN COMMERCIAL BANK LIMITED
By
------------------------------------------
Title:
MALAYAN BANKING BERHAD
By
------------------------------------------
Title:
THE TOKAI BANK, LIMITED
NEW YORK BRANCH
By
------------------------------------------
Title:
KREDIETBANK
By
------------------------------------------
Title:
By
------------------------------------------
Title:
BANCA POPOLARE DI MILANO, NEW
YORK BRANCH
By
------------------------------------------
Title:
By
------------------------------------------
Title:
74
DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK
AG, NEW YORK BRANCH
By
-------------------------------------------
Title:
By
-------------------------------------------
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By
-------------------------------------------
Title:
BANK OF HAWAII
By
-------------------------------------------
Title:
CITIC KA WAH BANK LIMITED
By
-------------------------------------------
Title:
TAIPEIBANK
By
-------------------------------------------
Title:
SUMMIT BANK
By
------------------------------------------
Title:
INTERNATIONAL COMMERCIAL BANK
OF CHINA
By
------------------------------------------
Title:
BANCO ESPIRITO SANTO E COMERCIAL
DE LISBOA, NASSAU BRANCH
By
------------------------------------------
Title:
By
------------------------------------------
Title:
BW CAPITAL MARKETS, INC.
By
------------------------------------------
Title:
By
-------------------------------------------
Title:
CHIAO TUNG BANK CO., LTD., NEW
YORK AGENCY
By
-------------------------------------------
Title:
76
CHUGOKU BANK, LTD
By
-------------------------------------------
Title:
NORTH FORK BANK
By
-------------------------------------------------------
Title:
BANK PEKAO
By
-------------------------------------------------------
Title:
ALLIED IRISH BANK, PLC.
By
-------------------------------------------------------
Title:
RZB FINANCE LLC
By
-------------------------------------------------------
Title:
Schedule 1
Commitment Schedule
A. Agency Office: 11 Madison Avenue
New York, New York 10010
Attention: Syndications Agency
Telecopier: (212) 325-8304
B. Banks: (Listed Below)
Bank Revolving Commitment Address for Notices
---- -------------------- -------------------
Credit Suisse First Boston $85,000,000 11 Madison Avenue
New York, NY 10010
Attn: Chris Hogan
Telecopier: 212-325-8309
Bank of America, N.A. $85,000,000 901 Main Street
Dallas, TX 75202
Attn: Sharon Ellis
Telecopier: 214-209-0980
The Chase Manhattan Bank $85,000,000 395 N. Service Road
Melville, NY 11747
Attn: Phyllis Sawyer
Telecopier: 631-755-0141
Bank of Nova Scotia $85,000,000 One Liberty Plaza
New York, NY 10006
Attn: Roger Chu
Telecopier: 212-225-5090
Bank of Tokyo-Mitsubishi $60,000,000 1251 Avenue of the Americas
Trust Company New York, NY 10020
Attn: Tom Fennessey
Telecopier: 212-782-6440
Banque Nationale de Paris, $60,000,000 499 Park Avenue
New York New York, NY 10022
Attn: Rick Pace
Telecopier: 212-415-9606
2
Fuji Bank Limited, New York $60,000,000 Two World Trade Center
79th Floor
New York, NY 10048
Attn: Thomas Esposito
Telecopier: 212-321-9407
HSBC Bank USA $60,000,000 140 Broadway, 4th Floor
New York, NY 10005
Attn: Diane Zieske
Telecopier: 212-658-5109
Hypo Vereinsbank $60,000,000 150 East 42nd Street
New York, NY 10017
Attn: Marianne Weinzinger
Telecopier: 212-672-5530
Mellon Bank N.A. $60,000,000 1735 Market Street
7th Floor
Philadelphia, NY 19103
Attn: Kristen Bells
Telecopier: 215-553-4899
West LB $60,000,000 1211 Avenue of the Americas
23rd Floor
New York, NY 10019
Attn: Walter Duffy, III
Telecopier: 212-852-6148
Banca Commerciale Italiana $40,000,000 One William Street
New York Branch New York, NY 10004
Attn: John Michalisin
Telecopier: 212-809-9780
Credit Lyonnais $40,000,000 1301 Avenue of the Americas
New York, NY 10019
Attn: Judy Domkowski
Telecopier: 212-459-3179
Dai-Ichi Kangyo Bank $40,000,000 One World Trade Center
Suite 4911
New York, NY 10048
Attn: Nelson Chang
Telecopier: 212-524-0579
3
Royal Bank of Canada $40,000,000 One Liberty Plaza
New York, NY 10006-1404
Attn: Stephanie Babich
Telecopier: 212-428-6460
Wachovia Bank, N.A. $40,000,000 191 Peachtree Street NE
Atlanta, GA 30303
Attn: William Christie
Telecopier: 404-332-6898
Commerzbank $27,000,000 Two World Financial Center
Aktiengesellschaft New York, NY 10281-1050
Attn: Andrew Lusk
Telecopier: 212-266-7530
Banca Nazionale del Lavoro, $26,000,000 555 West Monroe Street
S.P.A. - New York Branch Suite 3490
Chicago, IL 60603
Attn: Anthony Betti
Telecopier: 312-444-9410
ABN-AMRO Bank N.V. $25,000,000 One Post Office Square
39th Floor
Bell Atlantic Tower
Boston, MA 02109-4000
Attn: Natalie Smith
Telecopier: 617-988-7910
BBL International (U.K.) $17,000,000 630 Fifth Avenue, 6th Floor
Limited New York, NY 10111
Attn: Kathy Moss
Telecopier: 212-333-5786
Bank One N.A. $17,000,000 153 West 51st Street, 6th Floor
(Main Office Chicago) New York, NY 10019
Attn: Andrea Kantor
Telecopier: 212-373-1180
First Union National Bank $17,000,000 50 Main Street
White Plains, NY 10606
Attn: Joe Markey
Telecopier: 914-286-5001
Fleet Boston Financial $17,000,000 300 Broad Hollow Road
Melville, NY 11747-4850
Attn: Jed Pomerantz
Telecopier: 516-547-7815
4
Sumitomo Bank limited $17,000,000 277 Park Avenue
New York, NY 10172
Attn: Ed McColly
Telecopier: 212-224-4384
Landesbank Sachsen Girozentrale $15,000,000 Humboldtstrasse 25
Leipzig, Germany 04105
Attn: Suzanna Englehart
Telecopier: 011-49-341-979-3309
SanPaolo IMI S.p.A $10,000,000 245 Park Avenue, 35th Floor
New York, NY 10167
Attn: Robert Wurster
Telecopier: 212-692-3178
Comerica Bank, Detroit $10,000,000 One Detroit Center
500 Woodward Avenue
Mail Code 3328
Detroit, MI 48226-3280
Attn: Joel Gordon
Telecopier: 313-222-3330
SunTrust Bank $10,000,000 711 Fifth Avenue, 16th Floor
New York, NY 10022
Attn: Eric Skillins
Telecopier: 212-371-9386
Bank Hapoalim B.M. $10,000,000 1177 Avenue of the Americas
12th Floor
New York, NY 10036-2790
Attn: Marc Bosc
Telecopier: 212-782-2187
Mitsubishi Trust and Banking $10,000,000 520 Madison Avenue
Corporation 26th Floor
New York, NY 10022
Attn: Tara Van Tassell
Telecopier: 212-644-6825
Arab Bank PLC $7,500,000 520 Madison Avenue
2nd Floor
New York, NY 10022
Attn: Samer Tamimi
Telecopier: 212-593-4632
5
Banco Comercial Portuges $7,500,000 International Division
RUA Alexandre Herculano 50
1100 Lisbon Port
Lisbon, Portugal 1269-055
Attn: Shekar Chatterjee
Telecopier: 011-35-121-3125-966
Bank of Taiwan, New York Agency $7,500,000 1 World Trade Center
Suite 5323
New York, NY 10048
Attn: Kurt Shih
Telecopier: 212-775-9026
Caisse Des Depots $7,500,000 Nine West 57th Street
16th Floor
New York, NY 10019
Attn: Celine Scemama
Telecopier: 212-891-6123
First Commercial Bank. $7,500,000 Two World Trade Center
Suite 7868
New York, NY 10048
Attn: May Lu
Telecopier: 212-432-6590
Hua Nan Commercial Bank Ltd. $7,500,000 Two World Trade Center
Suite 2846
New York, NY 10048
Attn: Cindy Yang
Telecopier: 212-912-1050
Malayan Banking Berhad $7,500,000 1295 State Street
Springfield, MA 01111
Attn: Akmar Wallace
Telecopier: 212-302-0109
The Tokai Bank, Limited $7,500,000 55 East 52nd Street
New York Branch New York, NY 10055
Attn: Sam Rosen
Telecopier: 212-832-1428
Kredietbank $5,500,000 125 West 55th Street
New York, NY 10019
Attn: Robert Surdam, Jr.
Telecopier: 212-541-0793
6
Banca Popolare di Milano, $5,500,000 375 Park Avenue, 9th Floor
New York Branch New York, NY 10152
Attn: James Chatman
Telecopier: 212-387-0177
DG Bank $5,000,000 609 Fifth Avenue
Deutsche Genossenshaftsbank AG New York, NY 10017
Attn: Sabina Wendt
Telecopier: 212-745-1556
Erste Bank Der Oesterreichischen $4,500,000 280 Park Avenue
Sparkassen AG West Building
New York, NY 10017
Attn: Arcinee Hovanessian
Telecopier: 212-984-5627
Bank of Hawaii $4,000,000 1850 North Central Avenue
Phoenix, AZ 85004
Attn: Donna Parker
Telecopier: 602-257-2444
Citic Ka Wah Bank Limited $4,000,000 11 East Broadway
New York, NY 10038
Attn: Aaron Fong
Telecopier: 212-791-3776
TaipeiBank $4,000,000 One World Trade Center
New York, NY 10048
Attn: Terence Cheng
Telecopier: 212-775-1866
Summit Bank $3,000,000 301 Carnegie Center
Princeton, NJ 08543
Attn: William Holland
Telecopier: 609-734-9125
International Commercial Bank of China $2,000,000 2 North LaSalle St.
Suite 1803
Chicago, IL 60602
Attn: Shihming Huang
Telecopier: 312-278-2402
Banco Espirito Santo e Comercial $2,000,000 320 Park Avenue, 29th Floor
de Lisboa New York, NY 10022
Attn: Andrew Orsen
Telecopier: 212-750-3999
7
BW Capital Markets, Inc. $2,000,000 630 Fifth Avenue
Suite 1919
New York, NY 10111
Attn: Adele Savoretti
Telecopier: 212-218-1816
Chiao Tung Bank Co., Ltd. $2,000,000 One World Financial Center
New York Agency 200 Liberty Street
New York, NY 10281
Attn: Ifen Lee
Telecopier: 212-285-2922
Chugoku Bank, LTD $2,000,000 One World Trade Center
New York, NY 10048
Attn: Masakazu Oki
Telecopier: 212-321-3367
North Fork Bank $2,000,000 275 Broad Hollow Road
Melville, NY 11747
Attn: Robert Dunwoody
Telecopier: 631-844-9776
Bank Pekao $2,000,000 470 Park Avenue South
15th Floor
New York, NY 10016
Attn: Barry Henry
Telecopier: 212-679-5910
Allied Irish Bank, Plc. $1,500,000 AIB International Centre
IFSC
Dublin, Ireland
Attn: Michael Doyle
Telecopier: 0113531-668-2508
RZB Finance LLC $1,000,000 1133 Avenue of the Americas
16th Floor
New York, NY 10036
Attn: Klaus Hein
Telecopier: 212-944-2093
$1,300,000,000
--------------
Schedule 2
----------
Material Subsidiaries
---------------------
Name Jurisdiction
---- ------------
CA Computer Associates Holding GmbH Germany
Computer Associates Plc United Kingdom
CA Foreign, Inc. Delaware
Computer Associates Holding 1 BV The Netherlands
Computer Associates Holding 2 BV The Netherlands
Computer Associates Properties Holding Limited United Kingdom
Computer Associates Holding Limited United Kingdom
Computer Associates Canada Company Nova Scotia
Computer Associates Japan Ltd Japan
CA Computer Associates Limited United Kingdom
Exhibit A
FORM OF
ASSIGNMENT AND ACCEPTANCE AGREEMENT
-----------------------------------
Reference is made to the Amended and Restated Credit
Agreement, dated as of May 24, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), by and between Computer
Associates International, Inc., a Delaware corporation ("Borrower"), the banks
and other financial institutions parties thereto (the "Banks"), the Co-Agents
named therein, the Co-Syndication Agents named therein, the Documentation Agent
named therein and Credit Suisse First Boston, as administrative agent for the
Banks (in such capacity, "the Administrative Agent"). Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to those credit facilities contained in
the Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Credit Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Subsidiaries or
any other obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Credit Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Facilities and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the attached Notes
for a new Note or Notes payable to the Assignee and (ii) if the Assignor has
retained any interest in the Assigned Facility, requests that the Administrative
Agent exchange the attached Notes for a new Note or Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made hereby
(and after giving effect to any other assignments which have become effective on
the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 9.10 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agent to take
such action as administrative agent on its behalf and to exercise such powers
and discretion under the Credit Agreement, the other Credit Documents or any
other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Bank
2
including, if it is organized under the laws of a jurisdiction outside the
United States, its obligations pursuant to Section 7.13 of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall
be the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance by it and recording
by the Administrative Agent pursuant to the Credit Agreement, effective as of
the Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Banking Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Bank thereunder
and under the other Credit Documents and shall be bound by the provisions
thereof and (b) the Assignor shall, to the extent provided in this Assignment
and Acceptance, relinquish its rights and be released from its obligations under
the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
- ------------------------ ------------------ ----------------------------------
Credit Principal
Facility Assigned Amount Assigned Commitment Percentage Assigned 1/
$ . %
--- ---------
- -------------------------------------- --------------------------------------
[Name of Assignee] [Name of Assignor]
By: By:
Title: Title:
Address for Notices:
- -------------------------------------- --------------------------------------
Accepted: [Consented To:
CREDIT SUISSE FIRST BOSTON, as COMPUTER ASSOCIATES INTERNATIONAL,
Administrative Agent INC.
By: By:
Title: Title:]
- ----------------------
1/Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all Banks.
Exhibit B
---------
FORM OF
COMPLIANCE CERTIFICATE
----------------------
To the Banks and the Administrative Agent
Referenced Below
The undersigned hereby certifies that:
1. This Compliance Certificate is being delivered pursuant to
Section 10.1(h) of that certain Amended and Restated Credit Agreement, dated as
of May 24, 2000 (as the same may have been amended to the date hereof, the
"Credit Agreement"), by and between Computer Associates International, Inc., a
Delaware corporation ("Borrower"), the banks and other financial institutions
parties thereto (the "Banks"), the Co-Agents named therein, the Co-Syndication
Agents named therein, the Documentation Agent named therein and Credit Suisse
First Boston, as administrative agent for the Banks (in such capacity, "the
Administrative Agent"). Any and all initially capitalized terms used herein have
the meanings ascribed thereto in the Credit Agreement unless otherwise
specifically defined herein.
2. The undersigned is a Responsible Officer of the Borrower
with the title set forth below his signature hereon.
3. The undersigned has reviewed the terms of the Credit
Agreement and the other Credit Documents with a view toward determining whether
the Borrower has complied with the terms thereof in all material respects, has
made, or has caused to be made under his supervision, a review in reasonable
detail of the transactions and condition of the Borrower and its Subsidiaries as
of _______, ____, and such review has disclosed that, as of such date, no event
has occurred and is continuing which constitutes an Event of Default or would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
4. The ratio of (i) Consolidated EBITDA of the Borrower and
its Subsidiaries to (ii) Consolidated Interest Expense of the Borrower and its
Subsidiaries for purposes of the calculation of compliance with the covenant set
forth in Section 10.2(f) is ________ to 1.0, as demonstrated in reasonable
detail by the calculations set forth on Schedule I hereto.
5. The Test Ratio for purposes of the calculation of
compliance with the covenant set forth in Section 10.2(g) is ________ to 1.0, as
demonstrated in reasonable detail by the calculations set forth on Schedule I
hereto.
I hereby certify the foregoing information to be true and
correct in all material respects and execute this Compliance Certificate this
____ day of _________, ____.
Name:
Title:
Exhibit C-1
-----------
FORM OF
NOTICE OF BORROWING (DRAWINGS)
------------------------------
Credit Suisse First Boston, as
administrative agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 2.2 or
Section 3.2, as applicable, of that certain Amended and Restated Credit
Agreement, dated as of May 24, 2000 (as the same may have been amended to the
date hereof, the "Credit Agreement"), by and between Computer Associates
International, Inc., a Delaware corporation, the banks and other financial
institutions parties thereto (the "Banks"), the Co-Agents named therein, the
Co-Syndication Agents named therein, the Documentation Agent named therein and
Credit Suisse First Boston, as administrative agent (in such capacity, the "the
Administrative Agent") for the Banks. Any and all initially capitalized terms
used herein have the meanings ascribed thereto in the Credit Agreement unless
otherwise specifically defined herein.
The undersigned hereby (one checked as applicable) :
[ ] gives the Administrative Agent irrevocable
notice
[ ] confirms its irrevocable telephonic notice
to the Administrative Agent
that it requests the making of a (one checked as applicable):
[ ] Revolving Loan
[ ] Swingline Loan
under the Credit Agreement as follows:
1. Date of Loan. The requested date of the proposed Loan is
, .
- ---------- ----------
2. Amount of Loan. The requested aggregate amount of the
proposed Loan is: $ .
----------
3. Rate Option and Interest Period. The requested rate
option and (if applicable) Interest Period for the proposed Loan is ((a) or (b)
checked as applicable):
[ ] (a) The Eurodollar Rate 1/, as described
below:
Tranche A Tranche B Tranche C
- ----------------------- ----------------------- -----------------------
Principal Amount: $ Principal Amount: $ Principal Amount: $
------- ------- -------
Interest Period (one checked as Interest Period (one checked as Interest Period (one checked as
applicable): applicable): applicable):
[ ] 1 month [ ] 1 month [ ] 1 month
[ ] 2 months [ ] 2 months [ ] 2 months
[ ] 3 months [ ] 3 months [ ] 3 months
[ ] 6 months [ ] 6 months [ ] 6 months
[ ] 9 months [ ] 9 months [ ] 9 months
[ ] 12 months [ ] 12 months [ ] 12 months
[ ] (b) The Base Rate, with respect to
$ of the proposed Loan.
----------
- --------------------
1/ Not available for Swingline Loans
COMPUTER ASSOCIATES INTERNATIONAL, INC.
By
Its
Dated:
-----------------------
Exhibit C-2
-----------
FORM OF
NOTICE OF BORROWING (CONTINUATIONS)
-----------------------------------
Credit Suisse First Boston, as
administrative agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 7.6 of
that certain Amended and Restated Credit Agreement, dated as of May 24, 2000 (as
the same may have been amended to the date hereof, the "Credit Agreement"), by
and between Computer Associates International, Inc., a Delaware corporation, the
banks and other financial institutions parties thereto (the "Banks"), the
Co-Agents named therein, the Co-Syndication Agents named therein, the
Documentation Agent named therein and Credit Suisse First Boston, as
administrative agent (in such capacity, the "the Administrative Agent") for the
Banks. Any and all initially capitalized terms used herein have the meanings
ascribed thereto in the Credit Agreement unless otherwise specifically defined
herein.
The undersigned hereby (one checked as applicable):
[ ] gives the Administrative Agent irrevocable notice
[ ] confirms its irrevocable telephonic notice to the
Administrative Agent
that it requests the continuation of a Eurodollar Rate Loan under the Credit
Agreement as follows:
1. Maturity Date. The last day of the Interest Period
presently applicable to such Eurodollar Rate Loan is , .
---------- ----
2. Amount to be Continued. The requested aggregate
amount of such Eurodollar Rate Loan to be continued is: $ .
--------
3. Interest Period. The Interest Period for the
proposed continuation is:
Tranche A Tranche B Tranche C
- ----------------------- ----------------------- -----------------------
Principal Amount: $_______ Principal Amount: $_______ Principal Amount: $_______
Interest Period (one checked as Interest Period (one checked as Interest Period (one checked as
applicable): applicable): applicable):
[ ] 1 month [ ] 1 month [ ] 1 month
[ ] 2 months [ ] 2 months [ ] 2 months
[ ] 3 months [ ] 3 months [ ] 3 months
[ ] 6 months [ ] 6 months [ ] 6 months
[ ] 9 months [ ] 9 months [ ] 9 months
[ ] 12 months [ ] 12 months [ ] 12 months
Dated: , . COMPUTER ASSOCIATES INTERNATIONAL,
---------- ------ INC.
By
Its
Exhibit C-3
-----------
FORM OF
NOTICE OF BORROWING (CONVERSIONS)
---------------------------------
Credit Suisse First Boston, as
administrative agent under the Credit
Agreement referenced below
This Notice of Borrowing is given pursuant to Section 7.6 of
that certain Amended and Restated Credit Agreement, dated as of May 24, 2000 (as
the same may have been amended to the date hereof, the "Credit Agreement"), by
and between Computer Associates International, Inc., a Delaware corporation, the
banks and other financial institutions parties thereto (the "Banks"), the
Co-Agents named therein, the Co-Syndication Agents named therein, the
Documentation Agent named therein and Credit Suisse First Boston, as
administrative agent (in such capacity, the "the Administrative Agent") for the
Banks. Any and all initially capitalized terms used herein have the meanings
ascribed thereto in the Credit Agreement unless otherwise specifically defined
herein.
The undersigned hereby (one checked as applicable):
[ ] gives the Administrative Agent
irrevocable notice
[ ] confirms its irrevocable telephonic
notice to the Administrative Agent
that it requests the continuation of a Eurodollar Rate Loan under the Credit
Agreement as follows: 2/
A. Conversion from Base Rate Loan to Eurodollar Rate Loan.
1. Date of Conversion. The date upon which such
conversion is to occur is , .
---------- ------
2. Amount to be Converted. The requested aggregate
amount of such Base Rate Loan to be converted into a Eurodollar Rate Loan is:
$ .
----------
3. Interest Period. The Interest Period for the
proposed conversion to a Eurodollar Rate Loan is:
Tranche A Tranche B Tranche C
- ----------------------- ----------------------- -----------------------
Principal Amount: $_______ Principal Amount: $_______ Principal Amount: $_______
Interest Period (one checked as Interest Period (one checked as Interest Period (one checked as
applicable): applicable): applicable):
[ ] 1 month [ ] 1 month [ ] 1 month
[ ] 2 months [ ] 2 months [ ] 2 months
[ ] 3 months [ ] 3 months [ ] 3 months
[ ] 6 months [ ] 6 months [ ] 6 months
[ ] 9 months [ ] 9 months [ ] 9 months
[ ] 12 months [ ] 12 months [ ] 12 months
B. Conversion from Eurodollar Rate Loan to Base Rate Loan.
1. Date of Conversion. The date upon which such
conversion is to occur is , .
---------- --------
2. Maturity Date. The last day of the Interest Period
presently applicable to such Eurodollar Rate Loan is _________, ____, and the
Interest Period presently applicable thereto is _____ months.
- --------------------
2/Insert Part A and/or B, as applicable.
3. Amount to be Converted. The requested aggregate
amount of such Eurodollar Rate Loan to be converted into a Base Rate Loan
is: $ .
----------
Dated: , .
---------- -------
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By
Its
EXHIBIT E-1
-----------
FORM OF REVOLVING LOAN
PROMISSORY NOTE
---------------
$ New York, New York
--------------------------- May 24, 2000
FOR VALUE RECEIVED, the undersigned, COMPUTER ASSOCIATES INTERNATIONAL,
INC., a Delaware corporation (the "Borrower"), hereby unconditionally promises
to pay to the order of (the "Bank") at the office of Credit Suisse First Boston,
located at 11 Madison Avenue, New York, New York 10010, in lawful money of the
United States of America and in immediately available funds, on the Termination
Date (or such earlier date upon which such amounts may become due and payable
pursuant to the terms of the Credit Agreement described below) the principal
amount of (a) DOLLARS ($ ), or, if less, (b) the aggregate unpaid principal
amount of all Revolving Loans made by the Bank to the Borrower pursuant to
Section 2.1 of the Credit Agreement, as hereinafter defined. The Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in the Credit Agreement, together with all fees and costs
payable by the Borrower under the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Revolving Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Rate Loans, the length of each Interest Period with respect thereto.
The failure to make any such endorsement shall not affect the obligations of the
Borrower in respect of such Revolving Loan.
This Note (a) is one of the promissory notes referred to in the Amended
and Restated Credit Agreement dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, the Bank, the other banks and financial institutions from
time to time parties thereto, the Co-Agents named therein, the Co-Syndication
Agents named therein, the Documentation Agent named therein and Credit Suisse
First Boston, as administrative agent, (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory prepayment in
whole or in part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind, except for those
expressly provided for in the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
COMPUTER ASSOCIATES INTERNATIONAL, INC.
By:
Title:
SCHEDULE A
to Promissory Note
------------------
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
- -----------------------------------------------------------------------------------------------------------------------
Amount Amount of Base Rate
Converted to Amount of Principal of Loans Converted to
Date Amount of Base Rate Loans Base Rate Loans Base Rate Loans Repaid Eurodollar Rate Loans
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------
- ------------------------------------------ ------------------
Unpaid Principal
Balance of Base Rate
Date Loans Notation Made By
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
SCHEDULE B
to Promissory Note
------------------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR RATE LOANS
- ------------------------------------------------------------------------------------------------------------------------
Amount of Amount Converted Interest Period and Amount of Principal Amount of Eurodollar
Eurodollar Rate to Eurodollar Rate Eurodollar Rate with of Eurodollar Rate Rate Loans Converted
Date Loans Loans Respect Thereto Loans Repaid to Base Rate Loans
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------
Unpaid Principal
Balance of Notation
Date Eurodollar Rate Loans Made By
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
EXHIBIT E-2
FORM OF SWINGLINE LOAN
PROMISSORY NOTE
$200,000,000.00 New York, New York
May 24, 2000
FOR VALUE RECEIVED, the undersigned, COMPUTER ASSOCIATES
INTERNATIONAL, INC., a Delaware corporation (the "Borrower"), hereby
unconditionally promises to pay to the order of CREDIT SUISSE FIRST BOSTON (the
"Bank"), at its office located at 11 Madison Avenue, New York, New York 10010,
in lawful money of the United States of America and in immediately available
funds, on the Termination Date (or such earlier date upon which such amounts may
become due and payable pursuant to the terms of the Credit Agreement described
below) the principal amount of (a) TWO HUNDRED MILLION DOLLARS
($200,000,000.00), or, if less, (b) the aggregate unpaid principal amount of all
Swingline Loans made by the Bank to the undersigned pursuant to Section 3.1 of
the Credit Agreement. The Borrower further agrees to pay interest in like money
at such office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in the Credit Agreement,
together with all fees and costs payable by the Borrower under the Credit
Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each Swingline
Loan made pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof. The failure to make any such
endorsement shall not affect the obligations of the Borrower in respect of such
Swingline Loan.
This Note (a) is one of the promissory notes referred to in the
Amended and Restated Credit Agreement dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, the Bank, the other banks and financial institutions from
time to time parties thereto, the Co-Agents named therein, the Co-Syndication
Agents named therein, the Documentation Agent named therein and Credit Suisse
First Boston, as administrative agent, (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory prepayment in
whole or in part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default,
all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind, except for those
expressly provided for in the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By:
Title:
Schedule A to
Swingline Note
LOANS AND REPAYMENT OF SWINGLINE LOANS
- ------------------------------------------------------------------------------------------------------------
Date Amount of Loans Amount of Principal Unpaid Principal Notation Made
Repaid Balance of Loans By
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
EXHIBIT F-1
FORM OF
CAF ADVANCE REQUEST
----------, ----
Credit Suisse First Boston, as Administrative Agent
11 Madison Avenue
New York, New York 10010
Reference is made to the Amended and Restated Credit
Agreement, dated as of May 24, 2000, among the undersigned, the Banks named
therein, the Co-Agents named therein, the Co-Syndication Agents named therein,
the Documentation Agent named therein and Credit Suisse First Boston, as
Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
This is a [Fixed Rate] [LIBO Rate] CAF Advance Request
pursuant to Article 5 of the Credit Agreement requesting offers for the
following CAF Advances:
[NOTE: Pursuant to the Credit Agreement, a CAF Advance Request
may be transmitted in writing, by telecopy, or by telephone,
immediately confirmed by telecopy. In any case, a CAF Advance
Request shall contain the information specified in the second
paragraph of this form.]
=================================================================================================================
Loan 1 Loan 2 Loan 3
- -----------------------------------------------------------------------------------------------------------------
Aggregate Principal Amount $__________ $__________ $_________
- -----------------------------------------------------------------------------------------------------------------
Borrowing Date
- -----------------------------------------------------------------------------------------------------------------
CAF Advance Maturity Date
- -----------------------------------------------------------------------------------------------------------------
CAF Advance Interest Payment Dates
=================================================================================================================
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL, INC.
By
Title:
EXHIBIT E-2
FORM OF
CAF ADVANCE OFFER
,
----------- ----
Credit Suisse First Boston, as Administrative Agent
11 Madison Avenue
New York, New York 10010
Reference is made to the Amended and Restated Credit
Agreement, dated as of May 24, 2000, among the undersigned, the Banks named
therein, the Co-Agents named therein, the Co-Syndication Agents named therein,
the Documentation Agent named therein and Credit Suisse First Boston, as
Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
In accordance with Article 5 of the Credit Agreement, the
undersigned Banks offers to make CAF Advances thereunder in the following
amounts with the following maturity dates:
===============================================================================================
-
Borrowing Date: __________, 199__ Aggregate Maximum Amount: $_________
===============================================================================================
Maturity Date 1: Maximum Amount: $__________
__________, 199__ $________ offered at _______*
$________ offered at _______*
===============================================================================================
Maturity Date 2: Maximum Amount: $__________
__________, 199__ $________ offered at _______*
$________ offered at _______*
===============================================================================================
Maturity Date 3: Maximum Amount: $__________
__________, 199__ $________ offered at _______*
$________ offered at _______*
===============================================================================================
[NOTE: Insert the interest rate offered for the specified CAF Advance
where indicated by an asterisk (*). In the case of LIBO Rate CAF
Advances, insert a margin bid. In the case of Fixed Rate CAF Advances,
insert a fixed rate bid.]
Very truly yours,
[NAME OF BANK]
By
Title:
Telephone No.:
Telecopy No.:
EXHIBIT E-3
FORM OF
CAF ADVANCE CONFIRMATION
--------- --, ----
Credit Suisse First Boston, as Administrative Agent
11 Madison Avenue
New York, New York 10010
Reference is made to the Amended and Restated Credit Agreement,
dated as of May 24, 2000, among the undersigned, the Banks named therein, the
Co-Agents named therein, the Co-Syndication Agents named therein, the
Documentation Agent named therein and Credit Suisse First Boston, as
Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
In accordance with Article 5 of the Credit Agreement, the
undersigned accepts and confirms the offers by the CAF Advance Bank(s) to make
CAF Advances to the undersigned on , under Article 5 in the (respective)
amount(s) set forth on the attached list of CAF Advances offered.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL, INC.
By
Title:
[NOTE: The Borrower must attach CAF Advance offer list prepared by the
Administrative Agent with accepted amount entered by the Borrower to the right
of each CAF Advance offer].