Exhibit 4.2
Execution Copy
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CIT GROUP INC.
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$2,100,000,000
364-DAY CREDIT AGREEMENT
Dated as of April 14, 2004
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J.P. MORGAN SECURITIES INC., as Joint Lead Arranger and Bookrunner
BANC OF AMERICA SECURITIES LLC, as Joint Lead Arranger and Bookrunner
JPMORGAN CHASE BANK,
as Administrative Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
CITIBANK, N.A.,
as Syndication Agent
and
BARCLAYS BANK PLC,
as Documentation Agent
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.........................................................1
1.1. Defined Terms......................................................1
1.2. Other Definitional Provisions.....................................12
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS....................................12
2.1. Commitments.......................................................12
2.2. Revolving Credit Borrowing Procedure..............................14
2.3. Competitive Bid Borrowing Procedure...............................15
2.4. Repayment of Loans; Evidence of Debt..............................17
2.5. Facility Fee; Administrative Agent's Fee..........................18
2.6. Utilization Fee...................................................18
2.7. Extension of Termination Date.....................................18
2.8. Termination or Reduction of Commitments...........................20
2.9. Optional Prepayments of Revolving Credit Loans....................20
2.10. Conversion and Continuation Options...............................21
2.11. Applicable Interest Rate Margins, Facility Fee Rate and
Utilization Fee................................................21
2.12. Minimum Amounts of Tranches.......................................22
2.13. Interest Rates and Payment Dates..................................22
2.14. Computation of Interest and Fees..................................23
2.15. Inability to Determine Interest Rate..............................23
2.16. Pro Rata Treatment and Payments...................................24
2.17. Illegality........................................................25
2.18. Requirements of Law...............................................25
2.19. Taxes.............................................................27
2.20. Indemnity.........................................................29
2.21. Actions of Banks..................................................30
2.22. Lending Installations.............................................30
2.23. Removal of Banks..................................................30
2.24. Replacement of Banks..............................................30
SECTION 3. REPRESENTATIONS AND WARRANTIES.....................................31
3.1. Financial Condition...............................................31
3.2. No Change.........................................................31
3.3. Corporate Existence; Compliance with Law;
Significant Subsidiaries.......................................31
3.4. Corporate Power; Authorization; Enforceable Obligations...........31
3.5. No Legal Bar......................................................32
3.6. No Material Litigation............................................32
3.7. No Default........................................................32
3.8. Aggregation of the Representations and Warranties
Relating to Net Worth..........................................32
3.9. Federal Regulations...............................................32
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3.10. ERISA.............................................................33
3.11. Investment Company Act............................................33
3.12. Purpose of Loans..................................................33
SECTION 4. CONDITIONS PRECEDENT...............................................33
4.1. Conditions to Initial Loans.......................................33
4.2. Conditions to Each Loan...........................................34
SECTION 5. AFFIRMATIVE COVENANTS..............................................35
5.1. Financial Statements..............................................35
5.2. Payment of Obligations............................................36
5.3. Conduct of Business and Maintenance of Existence..................36
5.4. Notices...........................................................37
5.5. Status of Obligations.............................................37
5.6. Maintenance of Property...........................................37
5.7. Payment of Taxes..................................................38
5.8. Use of Proceeds...................................................38
SECTION 6. NEGATIVE COVENANTS.................................................38
6.1. Negative Pledge...................................................38
6.2. Consolidations, Mergers and Sales of Assets.......................41
6.3. Net Worth.........................................................41
SECTION 7. EVENTS OF DEFAULT..................................................41
SECTION 8. THE AGENTS.........................................................43
8.1. Appointment.......................................................43
8.2. Delegation of Duties..............................................44
8.3. Exculpatory Provisions............................................44
8.4. Reliance by Administrative Agent..................................44
8.5. Notice of Default.................................................44
8.6. Non-Reliance on Administrative Agent and Other Banks..............45
8.7. Indemnification...................................................45
8.8. Administrative Agent in Its Individual Capacity...................46
8.9. Successor Administrative Agent....................................46
SECTION 9. MISCELLANEOUS......................................................46
9.1. Amendments and Waivers............................................46
9.2. Notices...........................................................47
9.3. No Waiver; Cumulative Remedies....................................48
9.4. Survival of Representations and Warranties........................48
9.5. Payment of Expenses and Taxes.....................................48
9.6. Successors and Assigns; Participations; Purchasing Banks..........49
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9.7. Dissemination of Information; Confidentiality.....................51
9.8. Adjustments.......................................................52
9.9. Counterparts......................................................53
9.10. Severability......................................................53
9.11. Integration.......................................................53
9.12. GOVERNING LAW.....................................................53
9.13. Submission To Jurisdiction; Waivers...............................53
9.14. WAIVERS OF JURY TRIAL.............................................54
9.15. USA PATRIOT Act...................................................54
SCHEDULES
I. Commitments and Bank Information
II. List of Significant Subsidiaries
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Competitive Bid Note
B-1 Form of Opinion of Counsel to the Company
B-2 Form of Opinion of Simpson Thacher & Bartlett LLP
C Form of Commitment Transfer Supplement
D-1 Form of Officer's Certificate
D-2 Form of Secretary's Certificate
E Form of Incumbency Certificate
F Form of Borrowing Notice
G Form of Competitive Bid Request
H Form of Notice of Competitive Bid Request
I Form of Competitive Bid
J Form of Competitive Bid Accept/Reject Letter
K Form of Exemption Certificate
364-DAY CREDIT AGREEMENT, dated as of April 14, 2004, among CIT
GROUP INC., a Delaware corporation (the "Company"), the several banks and other
financial institutions from time to time on Schedule I to this Agreement (the
"Banks"), J.P. MORGAN SECURITIES INC. and BANC OF AMERICA SECURITIES LLC, as
joint lead arrangers and bookrunners, (in such capacity, the "Joint Lead
Arrangers"), CITIBANK, N.A. and BANK OF AMERICA, N.A., as syndication agents (in
such capacity, the "Syndication Agents"), BARCLAYS BANK PLC, as documentation
agent (in such capacity, the "Documentation Agent") and JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company has requested $2,100,000,000 in senior
unsecured revolving credit facilities from the Banks for general corporate
purposes; and
WHEREAS, the Banks are willing to provide the requested senior
unsecured revolving credit facilities on the terms and conditions set forth
herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms.
As used in this Agreement, the following terms shall have the following
meanings:
"Additional Bank": as defined in subsection 2.1(c)(ii).
"Additional Bank Agreement": as defined in subsection 2.1(c)(ii).
"Administrative Agent": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by,
or is under common control with, such Person.
"Agents": the collective reference to the Administrative Agent, the
Syndication Agents, the Documentation Agent and the Joint Lead Arrangers.
"Aggregate Available Commitment": at any time, the excess, if any,
of (a) the Aggregate Commitment over (b) the aggregate principal amount of
all Loans then outstanding.
"Aggregate Commitment": the aggregate amount of the Banks'
Commitments.
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"Agreement": this 364-Day Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Agreement Accounting Principles": GAAP applied in a manner
consistent with those principles used in the preparation of the financial
statements referred to in subsection 3.1.
"Applicable Eurodollar Margin": as defined in subsection 2.11.
"Applicable Facility Fee Rate": as defined in subsection 2.11.
"Applicable Margin": as defined in subsection 2.11.
"Applicable Rate": as defined in subsection 2.11.
"Applicable Utilization Fee Rate": as defined in subsection 2.11.
"Banks": as defined in the preamble hereto and any Person becoming
party hereto as a lender pursuant to Section 9.6(c).
"Barclays": Barclays Bank PLC.
"Base Rate": a rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the greater of (a) the Corporate Base Rate in
effect on such day, and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. If for any reason the Administrative Agent shall
have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for
any reason, including the inability of the Administrative Agent to obtain
sufficient quotations in accordance with the terms hereof, the Base Rate
shall be determined without regard to clause (b) of the first sentence of
this definition until the circumstances giving rise to such inability no
longer exist. Any change in the Base Rate due to a change in the Corporate
Base Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Corporate Base Rate or the Federal
Funds Effective Rate, respectively. The Administrative Agent will give
notice promptly to the Company and the Banks of changes in the Base Rate.
"Base Rate Loan": any Revolving Credit Loan bearing interest at a
rate determined by reference to the Base Rate in accordance with Section
2.
"BofA": Bank of America, N.A.
"Borrowing": a group of Loans of a single type made by the Banks
(or, in the case of a Competitive Bid Borrowing, by the Bank or Banks
whose Competitive Bids have been accepted pursuant to subsection 2.3) on a
single date and as to which a single Interest Period is in effect.
"Borrowing Date": a date on which a Borrowing is made hereunder.
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"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close.
"Citibank": Citibank, N.A.
"Closing Date": the date on which the conditions precedent set forth
in subsection 4.1 is satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Bank, the obligation of such Bank to make
Revolving Credit Loans to the Company in an aggregate principal amount at
any one time outstanding not to exceed the amount set forth opposite such
Bank's name on Schedule I or in any assignment and acceptance to which any
Bank may be a party, as the same may be increased from time to time in
accordance with subsection 2.1(c) or decreased or terminated from time to
time in accordance with subsection 2.8.
"Commitment Increase Supplement": as defined in subsection
2.1(c)(ii).
"Commitment Percentage": as to any Bank, (a) at any time prior to
the expiration or termination of the Commitments (expressed as a
percentage), the ratio of such Bank's Commitment to the Aggregate
Commitment, and (b) at any time after the expiration or termination of the
Commitments (expressed as a percentage), the ratio of (x) the aggregate
principal amount of such Bank's Loans then outstanding to (y) the
aggregate principal amount of the Loans then outstanding.
"Commitment Period": the period from and including the last to occur
of (i) the Closing Date and (ii) April 15, 2004, to but not including the
Termination Date or such earlier date on which the Aggregate Commitment
shall terminate as provided herein.
"Commitment Transfer Supplement": as defined in subsection 9.6(c)
hereto.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Company and which is treated as a single employer under Section 414 of the
Code.
"Competitive Bid": an offer by a Bank to make a Competitive Bid Loan
pursuant to subsection 2.3.
"Competitive Bid Accept/Reject Letter": a notification made by the
Company pursuant to subsection 2.3(d) in the form of Exhibit J.
"Competitive Bid Borrowing": a Borrowing consisting of a Competitive
Bid Loan or concurrent Competitive Bid Loans from the Bank or Banks whose
Competitive Bids for such Borrowing have been accepted by the Company
under the bidding procedure described in subsection 2.3.
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"Competitive Bid Loan": a Loan made by a Bank to the Company
pursuant to the bidding procedure described in subsection 2.3. Each
Competitive Bid Loan shall be a Eurodollar Competitive Bid Loan or a Fixed
Rate Loan.
"Competitive Bid Maturity Date": as to each Competitive Bid Loan,
the maturity date specified by the Company for such Competitive Bid Loan
in the related Competitive Bid Request.
"Competitive Bid Rate": as to any Competitive Bid made by a Bank
pursuant to subsection 2.3(b), (i) in the case of a Eurodollar Competitive
Bid Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed
rate of interest offered by the Bank making such Competitive Bid.
"Competitive Bid Request": a request made pursuant to subsection 2.3
in the form of Exhibit G.
"Continuing Banks": as defined in subsection 2.7(a).
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Corporate Base Rate": the rate of interest from time to time
announced by JPMorgan Chase Bank at its principal office as its prime
commercial lending rate.
"Debt Ratings": the collective reference to LT Ratings and ST
Ratings. The Debt Ratings shall be determined from the most recent public
announcement of any changes in the Debt Ratings. If the rating system of
S&P or Moody's shall change, the Company and the Administrative Agent
shall negotiate in good faith to amend this definition to reflect such
changed rating system and, pending the effectiveness of such amendment
(which shall require the approval of Required Banks), the Debt Rating
shall be determined by reference to the rating most recently in effect
prior to such change.
"Default": any of the events specified in Section 7, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Borrowing": a Borrowing comprised of Eurodollar Loans.
"Eurodollar Competitive Bid Borrowing": a Borrowing comprised of
Eurodollar Competitive Bid Loans.
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"Eurodollar Competitive Bid Loan": any Competitive Bid Loan bearing
interest at a rate determined by reference to the Eurodollar Rate in
accordance with the provisions of Section 2.
"Eurodollar Loan": any Eurodollar Competitive Bid Loan or Eurodollar
Revolving Credit Loan.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate of interest determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Working Days prior to the beginning of such Interest Period. In
the event that such rate does not appear on Page 3750 of the Telerate
screen (or otherwise on such screen), the "Eurodollar Rate" shall be
determined by reference to such other publicly available service for
displaying eurodollar rates as may be agreed upon by the Administrative
Agent and the Company or, in the absence of such agreement, the
"Eurodollar Rate" shall instead be the rate per annum equal to the average
(rounded to the nearest 1/100th of 1%) of the respective rates notified to
the Administrative Agent by each of the Reference Banks as the rate at
which such Reference Bank is offered Dollar deposits at or about 10:00
A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar
and foreign currency and exchange operations in respect of its Eurodollar
Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during
such Interest Period.
"Eurodollar Revolving Credit Borrowing": a Borrowing comprised of
Eurodollar Revolving Credit Loans.
"Eurodollar Revolving Credit Loan": any Revolving Credit Loan
bearing interest at a rate determined by reference to the Eurodollar Rate
in accordance with the provisions of Section 2.
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Existing 364-Day Credit Agreement": the 364-Day Credit Agreement,
dated as of October 10, 2003, among the Company, the banks parties
thereto, Citibank and BofA, as syndication agents, Barclays, as
documentation agent and JPMorgan Chase Bank, as administrative agent, as
amended, supplemented or otherwise modified from time to time.
"Existing 5-Year Credit Agreement": the 5-Year Credit Agreement,
dated as of March 28, 2000, as amended, among the Company, the banks
parties thereto, Barclays Bank PLC, BofA, Citibank and MIZUHO Corporate
Bank, Ltd. (f/k/a The Dai-Ichi Kangyo Bank, Limited), as syndication
agents and JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank), as
administrative agent.
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"Extension Notice": as defined in subsection 2.7(a).
"Federal Funds Effective Rate": for any day, a rate per annum equal
to (i) 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 for such day (or, if such day is not a
Business Day, for the preceding Business Day) by the Federal Reserve Bank
of New York; or (ii) if such rate is not so published for any day which is
a Business Day, the average of the quotations for such day at
approximately 10:00 A.M., New York City time, on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Fee Payment Date": the last day of each calendar quarter,
commencing June 30, 2004, the Termination Date and the Maturity Date.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Rate Borrowing": a Borrowing comprised of Fixed Rate Loans.
"Fixed Rate Loan": any Competitive Bid Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no
more than four decimal places) specified by the Bank making such Loan in
its Competitive Bid.
"GAAP": generally accepted accounting principles in the United
States in effect from time to time.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Hedging Agreement": any swap, cap, collar, floor or other hedging
agreement in respect of interest rates or currency exchange rates. For
purposes of this Agreement, the amount of any obligations or liabilities
in respect of any Hedging Agreement shall be the amounts, including any
termination payments, that would be required to be paid to a counterparty
upon early termination (in accordance with customary industry standards)
rather than any notional amount with regard to which payments may be
calculated.
"Increasing Bank": as defined in subsection 2.1(c)(ii).
"Indebtedness": of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price
of property or services other than accounts payable arising in the
ordinary course of such Person's business, (iii) obligations, whether or
not assumed, secured by Liens on property now or hereafter owned or
acquired by such Person (other than carriers', warehousemen's, mechanics',
repairmen's or other like nonconsensual statutory Liens arising in the
ordinary course of business), (iv) obligations which are evidenced by
notes, acceptances, or other similar instruments, (v) capitalized lease
obligations, (vi) contingent obligations with respect to
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the Indebtedness of another Person, including but not limited to the
obligation or liability of another which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment
of, or otherwise becomes contingently liable upon; provided that any
Indebtedness owing by the Company to any of its Subsidiaries or by any
Subsidiary of the Company to the Company or by any Subsidiary of the
Company to any other Subsidiary of the Company or any contingent
obligation in respect thereof shall not constitute Indebtedness for
purposes of this Agreement, and (vii) obligations for which such Person is
obligated in respect of a letter of credit. For purposes of this
Agreement, Indebtedness shall not include (A) any indebtedness of such
Person to the extent (I) such indebtedness does not appear on the
financial statement of such Person, (II) such indebtedness is recourse
only to certain assets of such Person, and (III) the assets to which such
indebtedness is recourse only appear on the financial statements of such
Person net of such indebtedness, or (B) any indebtedness or other
obligations issued by any Person (or by a trust or other entity
established by such Person or any of its affiliates) which are primarily
serviced by the cash flows of a discrete pool of receivables, leases or
other financial assets which have been sold or transferred by the Company
or any Subsidiary in securitization transactions which, in accordance with
GAAP, are accounted for as sales for financial reporting purposes. It is
understood and agreed that (1) the amount of any Indebtedness described in
clause (iii) for which recourse is limited to certain property of such
Person shall be the lower of (x) the amount of the obligation and (y) the
fair market value of the property of such Person securing such obligation,
and (2) the amount of any obligation described in clause (vi) shall be the
lower of (x) the stated or determinable amount of the primary obligation
in respect of which such contingent obligation is made, and (y) the
maximum amount for which such Person may be liable pursuant to the terms
of the agreement embodying such contingent obligation unless such primary
obligation and the maximum amount for which such Person may be liable are
not stated or determinable, in which case the amount of such contingent
obligation shall be such Person's maximum, reasonably anticipated
liability in respect thereof as determined by such Person in good faith.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day
of each calendar quarter during which such Loan is outstanding and the
Termination Date, and (b) as to any Loan other than a Base Rate Loan, the
last day of the Interest Period applicable thereto and, in the case of a
Eurodollar Loan with an Interest Period of more than three months, each
day that would have been an Interest Payment Date for such Loan had
successive Interest Periods of three months been applicable to such Loan
and, in addition, the date the Company converts any Loan into a Loan of a
different Type or having a different Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan, (i)
initially, the period commencing on the borrowing or conversion date, as
the case may be, with respect to such Eurodollar Loan and ending one, two,
three or six months thereafter, as selected by the Company in its notice
of borrowing or notice of conversion, as the case may be, given with
respect thereto; and (ii) thereafter in the case of a Eurodollar Revolving
Credit Loan,
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each period commencing on the last day of the next preceding Interest
Period applicable to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the Company by irrevocable notice to
the Administrative Agent not less than three Working Days prior to the
last day of the then current Interest Period with respect thereto; and
(b) with respect to any Fixed Rate Loan, the period commencing on
the date of such Loan and ending on the date specified in the Competitive
Bids in which the offer to make the Fixed Rate Loans comprising such
Borrowing were extended, which shall not be earlier than fifteen days
after the date of such Loan;
provided that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Working Day, such Interest Period
shall be extended to the next succeeding Working 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 Working Day;
(B) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date; and
(C) any Interest Period pertaining to a Eurodollar Loan that begins
on the last Working 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 Working Day of a calendar
month.
"Joint Lead Arrangers": as defined in the preamble hereto.
"JPMorgan Chase Bank": as defined in the preamble hereto.
"Lending Installation": any branch or office of any Bank selected by
such Bank to be a Lending Installation in accordance with subsection 2.22.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement and any Financing Lease having
substantially the same economic effect as any of the foregoing).
"Loan": a Competitive Bid Loan, or a Revolving Credit Loan, whether
made as a Eurodollar Loan, a Fixed Rate
Loan or a Base Rate Loan, as permitted hereby.
"LT Rating": as of any date of determination, the rating as
determined by either S&P or Moody's (collectively, the "LT Ratings") of
senior, unsecured long-term indebtedness for borrowed money of the
Company, without third-party credit enhancement.
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"Margin": as to any Eurodollar Competitive Bid Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no
more than four decimal places) to be added to or subtracted from the
Eurodollar Rate to determine the interest rate applicable to such Loan, as
specified in the Competitive Bid relating to such Loan.
"Material Adverse Effect": (a) a material adverse effect on the
ability of the Company to perform its obligations under this Agreement
(other than any such material adverse effect arising as a result of a
general disruption in capital markets), or (b) a material adverse effect
on the validity or enforceability against the Company of this Agreement or
the material rights or remedies of the Administrative Agent or the Banks
hereunder.
"Maturity Date": the first anniversary of the Termination Date (as
extended from time to time).
"Moody's": Moody's Investors Service, Inc. and its successors.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Worth": at any date of determination, total shareholders'
equity of the Company and its Subsidiaries on a consolidated basis
determined in accordance with Agreement Accounting Principles.
"New 5-Year Credit Agreement": the 5-Year Credit Agreement, dated as
of April 14, 2004, among the Company, the several banks and other
financial institutions parties thereto, J.P. Morgan Securities Inc. and
Citigroup Global Markets Inc., as joint lead arrangers, BofA and Citibank,
as syndication agents, Barclays, as documentation agent and JPMorgan Chase
Bank, as administrative agent, as amended, supplemented or otherwise
modified from time to time.
"Non-Extending Banks": as defined in subsection 2.7(a).
"Non-U.S. Lender": as defined in subsection 2.19(b).
"Other Bank": as defined in subsection 2.1(c)(i).
"Participant": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if
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such plan were terminated at such time, would under Section 4069 of ERISA
be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Reference Banks": JPMorgan Chase Bank, Barclays, BofA and Citibank.
"Register": as defined in subsection 9.6(d).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period
is waived under subsection .23, .24, .26, .28 or .30 of PBGC Reg.ss.4043.
"Required Banks": at a particular time, Banks whose Commitment
Percentages aggregate at least 51% or, if the Aggregate Commitment has
been terminated or for purposes of any decision to accelerate the Loans
pursuant to Section 7, Banks in the aggregate holding at least 51% of the
aggregate unpaid principal amount of the outstanding Loans.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or final
determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or any material
portion of its property or to which such Person or any material portion of
its property is subject.
"Responsible Officer": the chief executive officer, the vice
chairman, the president, any vice president of the Company or, with
respect to financial matters, (a) the chief financial officer of the
Company, (b) the treasurer of the Company, or (c) the controller of the
Company.
"Revolving Credit Borrowing": a Borrowing consisting of simultaneous
Revolving Credit Loans from each of the Banks.
"Revolving Credit Loan": a revolving credit loan made by a Bank to
the Company pursuant to subsection 2.1. Each Revolving Credit Loan shall
be a Eurodollar Revolving Credit Loan or a Base Rate Loan.
"SEC": the Securities and Exchange Commission and any succeeding or
analogous governmental body or agency.
"S&P": Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc., and its successors.
11
"Significant Subsidiaries": (i) any Subsidiary listed on Schedule II
attached hereto, and (ii) any other Subsidiary which fits the definition
of Significant Subsidiary contained in Rule 1-02 of Regulation S-X
promulgated by the SEC, other than a Subsidiary that is a special purpose
entity formed for the purpose of securitizing, selling for securitization
or otherwise facilitating the securitization of assets of the Company or
any other Subsidiary.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"ST Rating": as of any date of determination, the rating as
determined by either S&P or Moody's (collectively, the "ST Ratings") of
senior, unsecured short-term indebtedness for borrowed money of the
Company, without third-party credit enhancement.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Company.
"Syndication Agents": as defined in the preamble hereto.
"Termination Date": April 13, 2005, as such date may be extended
from time to time in accordance with subsection 2.7.
"Tranche": the collective reference to Loans or portions thereof the
Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"Transfer Effective Date": as defined in subsection 9.6(c) hereto.
"Transferee": as defined in subsection 9.6(f).
"Type": when used in respect of any Loan or Borrowing, means the
Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the Eurodollar Rate, the Base Rate and any fixed rate.
"United States": the United States of America.
"Utilization Fee": as defined in subsection 2.6.
"Working Day": any Business Day on which dealings in U.S. dollars
and
12
exchange between banks may be carried on in London, England.
1.2. Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Company and
its Subsidiaries not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and
Section, subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1. Commitments. (a). Subject to the terms and conditions hereof,
each Bank severally agrees to make Revolving Credit Loans to the Company from
time to time during the Commitment Period in an aggregate principal amount at
any one time outstanding not exceeding the amount of such Bank's Commitment.
Notwithstanding anything to the contrary contained in this subsection 2.1, at no
time shall the sum of (A) the outstanding aggregate principal amount of all
Revolving Credit Loans made by all Banks, plus (B) the outstanding aggregate
principal amount of all Competitive Bid Loans made by all Banks, exceed the
Aggregate Commitment. During the Commitment Period the Company may borrow, pay
or prepay and reborrow hereunder, all in accordance with the terms and
conditions set forth in this Agreement.
(b) The Revolving Credit Loans may from time to time be Eurodollar
Revolving Credit Loans and/or Base Rate Loans, as determined by the
Company and notified to the Administrative Agent in accordance with
subsections 2.2 and 2.10, provided that no Loan shall be made as a
Eurodollar Revolving Credit Loan after the day that is one month prior to
the Termination Date.
(c) (i) Notwithstanding anything to the contrary contained in this
Agreement, the Company may request from time to time that the Aggregate
Commitment be increased by an amount not less than $25,000,000 or a whole
multiple of $10,000,000 in excess thereof, provided that the Company may
only request such an increase once in any six-month period and in no event
shall the Aggregate Commitment exceed $3,000,000,000. Such increase in the
Aggregate Commitment shall be effected as follows: the Company may (I)
request one or more of the Banks to increase the amount of its Commitment
(which request shall be in writing and sent to the Administrative Agent to
forward to such
13
Bank or Banks) and/or (II) arrange for one or more banks or financial
institutions not a party hereto (an "Other Bank") to become parties to and
lenders under this Agreement, provided that (w) the Administrative Agent
shall have approved such Other Bank, which approval shall not be
unreasonably withheld, (x) the minimum Commitment of such Other Bank
equals or exceeds $15,000,000 and (y) after giving effect to such
increase, no Bank shall have a Commitment hereunder which exceeds an
amount equal to 20% of the Aggregate Commitment. In no event may any
Bank's Commitment be increased without the prior written consent of such
Bank, and the failure of any Bank to respond to the Company's request for
an increase shall be deemed a rejection by such Bank of the Company's
request. The Aggregate Commitment may not be increased if, at the time of
any proposed increase hereunder, a Default or Event of Default has
occurred and is continuing, or either of the Company's LT Ratings from
Moody's or S&P is less than A3 or A-, respectively. Upon any request by
the Company to increase the Aggregate Commitment hereunder, the Company
shall be deemed to have represented and warranted on and as of the date of
such request that no Default or Event of Default has occurred and is
continuing. Notwithstanding anything contained in this Agreement to the
contrary, no Bank shall have any obligation whatsoever to increase the
amount of its Commitment, and each Bank may at its option, unconditionally
and without cause, decline to increase its Commitment.
(ii) If any Bank is willing, in its sole and absolute
discretion, to increase the amount of its Commitment hereunder (such a Bank
hereinafter referred to as an "Increasing Bank"), it shall enter into a written
agreement to that effect with the Company and the Administrative Agent, in form
and substance reasonably satisfactory to the Administrative Agent (a "Commitment
Increase Supplement"), which agreement shall specify, among other things, the
amount of the increased Commitment of such Increasing Bank. Upon the
effectiveness of such Increasing Bank's increase in Commitment, Schedule I
hereto shall, without further action, be deemed to have been amended as
appropriate to reflect the increased Commitment of such Increasing Bank. Any
Other Bank which is willing to become a party hereto and a lender hereunder and
that has been approved by the Agent (which approval shall not be unreasonably
withheld) shall enter into a written agreement with the Company and the
Administrative Agent, in form and substance reasonably satisfactory to the
Administrative Agent (an "Additional Bank Agreement"), which agreement shall
specify, among other things, its Commitment hereunder. When such Other Bank
becomes a Bank hereunder as set forth in the Additional Bank Agreement, Schedule
I shall, without further action, be deemed to have been amended as appropriate
to reflect the Commitment of such Other Bank. Upon the execution by the
Administrative Agent, the Company and such Other Bank of such Additional Bank
Agreement, such Other Bank shall become and be deemed a party hereto and a
"Bank" hereunder for all purposes hereof and shall enjoy all rights and assume
all obligations on the part of the Banks set forth in this Agreement, and its
Commitment shall be the amount specified in its Additional Bank Agreement. Each
Other Bank which executes and delivers an Additional Bank Agreement and becomes
a party hereto and a "Bank" hereunder pursuant to such Additional Bank Agreement
is hereinafter referred to as an "Additional Bank."
(iii) In no event shall an increase in a Bank's Commitment or
the Commitment of an Other Bank pursuant to this subsection 2.1(c) become
effective until the Administrative Agent shall have received a favorable written
opinion of counsel for the
14
Company, addressed to the Banks, with respect to the matters set forth in
paragraphs 2 and 3 of Exhibit B-1 as they relate to this Agreement and the
borrowings hereunder after giving effect to the increase in the Aggregate
Commitment resulting from the increase in such Bank's Commitment or the
extension of a Commitment by such Other Bank. In no event shall an increase in a
Bank's Commitment or the Commitment of an Other Bank which results in the
Aggregate Commitment exceeding the amount which is authorized at such time in
resolutions previously delivered to the Administrative Agent become effective
until the Administrative Agent shall have received a copy of the resolutions, in
form and substance satisfactory to the Administrative Agent, of the Board of
Directors of the Company authorizing the borrowings contemplated pursuant to
such increase, certified by the Secretary or an Assistant Secretary of the
Company. Concurrently with the execution by an Increasing Bank of a Commitment
Increase Supplement or by an Additional Bank of an Additional Bank Agreement,
the Company shall make such borrowing from such Increasing Bank or Additional
Bank, and/or shall make such prepayment of outstanding Revolving Credit Loans,
as shall be required to cause the aggregate outstanding principal amount of
Revolving Credit Loans owing to each Bank (including each such Increasing Bank
and Additional Bank) to be proportional to such Bank's share of the Aggregate
Commitment after giving effect to any increase thereof. The Company agrees to
indemnify each Bank and to hold each Bank harmless from any loss or expense
incurred as a result of any such prepayment in accordance with subsection 2.20,
as applicable.
(iv) No Other Bank may become an Additional Bank unless the
Administrative Agent and the Company consent (which consent of the
Administrative Agent shall not be unreasonably withheld) thereto by executing
the Additional Bank Agreement signed by such bank or financial institution (or
counterparts thereof), but no consent of any of the other Banks hereunder shall
be required therefor. In no event shall the Commitment of any Bank be increased
by reason of any bank or financial institution becoming an Additional Bank, or
otherwise, but the Aggregate Commitment shall be increased by the amount of each
Additional Bank's Commitment. Upon any Bank entering into a Commitment Increase
Supplement or any Additional Bank becoming a party hereto, the Administrative
Agent shall notify each other Bank thereof and shall deliver to each Bank a copy
of the Additional Bank Agreement executed by such Additional Bank and the
Commitment Increase Supplement executed by such Increasing Bank.
2.2. Revolving Credit Borrowing Procedure. Subject to the terms and
conditions hereof, the Company may request Revolving Credit Loans during the
Commitment Period on any Working Day, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans, or on any Business
Day, otherwise, provided that the Company shall give the Administrative Agent
irrevocable notice, substantially in the form of Exhibit F, (which notice must
be received by the Administrative Agent prior to 10:00 A.M., New York City time,
(a) three Working Days prior to the requested Borrowing Date, if all or any part
of the requested Loans are to be initially Eurodollar Revolving Credit Loans or
(b) on the Borrowing Date, otherwise), specifying (i) the amount to be borrowed,
(ii) the requested Borrowing Date, (iii) whether the Borrowing is to be of
Eurodollar Revolving Credit Loans, Base Rate Loans or a combination thereof and
(iv) if the Borrowing is to be entirely or partly of Eurodollar Revolving Credit
Loans, the amount of such Type of Loan and the length of the initial Interest
Period therefor. Each Borrowing of Revolving Credit Loans shall be in an amount
equal to (x) in the case of Base Rate Loans, $25,000,000 or a whole multiple of
$5,000,000 in excess thereof (or, if
15
the then Aggregate Available Commitment is less than $25,000,000, such lesser
amount) and (y) in the case of Eurodollar Revolving Credit Loans, $25,000,000 or
a whole multiple of $5,000,000 in excess thereof. Upon receipt of any such
notice from the Company, the Administrative Agent shall promptly notify the
Lending Installation of each Bank thereof. Each Bank will make the amount of its
pro rata share of each Borrowing of Revolving Credit Loans available to the
Administrative Agent at the office of the Administrative Agent specified in
subsection 9.2 prior to 11:00 A.M., New York City time, on the Borrowing Date
requested by the Company in funds immediately available to the Administrative
Agent. The Administrative Agent shall make the funds so received from the Banks
immediately available to the Company at the Administrative Agent's aforesaid
address or to an account designated by the Company.
2.3. Competitive Bid Borrowing Procedure. (a) To request Competitive
Bids, the Company shall deliver to the Administrative Agent a Competitive Bid
Request, substantially in the form of Exhibit G, to be received by the
Administrative Agent (i) in the case of a Eurodollar Competitive Bid Borrowing,
not later than 10:00 a.m, New York City time, four Working Days before a
proposed Competitive Bid Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m, New York City time, one Business Day before
a proposed Competitive Bid Borrowing. No Base Rate Loan shall be requested in,
or made pursuant to, a Competitive Bid Request. A Competitive Bid Request that
does not conform substantially to the format of Exhibit G may be rejected in the
Administrative Agent's sole discretion, and the Administrative Agent shall
promptly notify the Company of such rejection by telecopier. Such request shall
in each case refer to this Agreement and specify (x) whether the Borrowing then
being requested is to be a Eurodollar Borrowing or a Fixed Rate Borrowing, (y)
the date of such Borrowing (which shall be a Business Day and, in the case of a
Eurodollar Competitive Bid Loan, a Working Day) and the aggregate principal
amount thereof, which shall be a minimum principal amount of $25,000,000 and in
an integral multiple of $5,000,000 (or an aggregate principal amount equal to
the remaining balance of the available Commitments) and which will not cause the
aggregate principal of all outstanding Loans to exceed the Aggregate Commitment,
and (z) the Interest Period with respect thereto (which may not end after the
Termination Date). The Competitive Bid Maturity Date for each Competitive Bid
Loan shall be the date set forth therefor in the relevant Competitive Bid
Request, which date shall be not less than fifteen days after the date of the
Competitive Bid Borrowing and, in any event, shall not be later than the
Termination Date. Promptly after its receipt of a Competitive Bid Request that
is not rejected as aforesaid, the Administrative Agent shall invite by
telecopier (in the form set forth in Exhibit H) the Banks to bid, on the terms
and conditions of this Agreement, to make Competitive Bid Loans pursuant to the
Competitive Bid Request.
(b) Each Bank may, in its sole and absolute discretion, make one or
more Competitive Bids to the Company responsive to a Competitive Bid
Request. Each Competitive Bid by a Bank must be received by the
Administrative Agent via telecopier, in the form of Exhibit I, (i) in the
case of a Eurodollar Competitive Bid Borrowing, not later than 9:30 a.m.,
New York City time, three Working Days before a proposed Competitive Bid
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the Business Day of a proposed
Competitive Bid Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially
to the format of Exhibit I may be rejected by the Administrative Agent
after conferring with, and upon the instruction of, the Company,
16
and the Administrative Agent shall notify the Bank making such
nonconforming bid of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and specify (x) the
principal amount (which shall be in a minimum principal amount of
$5,000,000 and in integral multiples of $1,000,000, which may exceed such
Bank's Commitment and which may equal the entire principal amount of the
Competitive Bid Borrowing requested by the Company) of the Competitive Bid
Loan or Loans that the applicable Bank is willing to make to the Company,
(y) the Competitive Bid Rate or Rates at which such Bank is prepared to
make the Competitive Bid Loan or Loans and (z) the Interest Period and the
last day thereof. A Competitive Bid submitted by a Bank pursuant to this
paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the Company by
telecopier of all the Competitive Bids made, the Competitive Bid Rate and
the principal amount of each Competitive Bid Loan in respect of which a
Competitive Bid was made and the identity of the Bank that made each bid.
The Administrative Agent shall send a copy of all Competitive Bids (or a
summary of such bids) to the Company for its records as soon as
practicable after completion of the bidding process set forth in this
subsection 2.3.
(d) The Company may in its sole and absolute discretion, subject
only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Company shall
notify the Administrative Agent by telephone, confirmed by telecopier in
the form of a Competitive Bid Accept/Reject Letter, whether and to what
extent it has decided to accept or reject any or all of the bids referred
to in paragraph (c) above, (x) in the case of a Eurodollar Competitive Bid
Borrowing, not later than 10:30 a.m., New York City time, three Business
Days before a proposed Competitive Bid Borrowing and (y) in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on
the day of a proposed Competitive Bid Borrowing; provided, however, that
(i) the failure by the Company to give such notice shall be deemed to be a
rejection of all the bids referred to in paragraph (c) above, (ii) the
Company shall not accept a bid made at a particular Competitive Bid Rate
if the Company has decided to reject a bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Company shall not exceed the principal amount specified in the Competitive
Bid Request, (iv) if the Company shall accept a bid or bids made at a
particular Competitive Bid Rate and such bid or bids would cause the total
amount of accepted bids to exceed the amount specified in the Competitive
Bid Request, then the aggregate amount of the bids made at such
Competitive Bid Rates shall be reduced ratably as necessary to eliminate
such excess, and (v) except pursuant to clause (iv) above, no bid shall be
accepted for a Competitive Bid Loan unless such Competitive Bid Loan is in
a minimum principal amount of $5,000,000 and an integral multiple of
$1,000,000; provided further, however, that if a Competitive Bid Loan must
be in an amount less than $5,000,000 because of the provisions of clause
(iv) above, such Competitive Bid Loan may be for a minimum of $1,000,000
or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amount shall be rounded
to integral multiples of $1,000,000 in a manner which shall be in the
discretion of the Company. A notice given by the Company pursuant to this
paragraph (d) shall be irrevocable.
17
(e) The Administrative Agent shall promptly notify each bidding Bank
whether or not its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the
Administrative Agent, and each successful bidder will thereupon become
bound, subject to the other applicable conditions hereof, to make the
Competitive Bid Loan in respect of which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within two Business
Days after the date of any previous Competitive Bid Request.
(g) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Bank, it shall submit such bid directly to the
Company one quarter of an hour earlier than the latest time at which the
other Banks are required to submit their bids to the Administrative Agent
pursuant to paragraph (b) above.
(h) All notices required by this subsection 2.3 shall be given in
accordance with subsection 9.2.
2.4. Repayment of Loans; Evidence of Debt. (a) The Company
unconditionally promises to pay to the Administrative Agent for the account of
the relevant Bank (i) on the Maturity Date (or such earlier date on which the
Loans become due and payable pursuant to subsection 2.9 or Section 7), the
unpaid principal amount of each Revolving Credit Loan made to it by such Bank;
provided, that, on or before the Termination Date, the Company shall give the
Administrative Agent written notice stating whether it intends or does not
intend to repay, on the Termination Date, the unpaid principal amount of all
Revolving Credit Loans, and (ii) on the last day of the Interest Period thereof,
the unpaid principal amount of each Competitive Bid Loan made to it by such
Bank. The Company shall have no right to prepay any principal of any Competitive
Bid Loan. The Company further agrees to pay interest in immediately available
funds at the office of the Administrative Agent on the unpaid principal amount
of the Loans from time to time from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in subsection 2.13.
(b) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the Indebtedness of the Company to such
Bank resulting from the Loans made by such Bank to the Company, including
the amounts of principal and interest payable and paid to such Bank from
time to time hereunder.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 9.6(d), and a subaccount for each Bank, in which Register and
subaccounts (taken together) shall be recorded (i) the amount of each Loan
made hereunder, whether such Loan is a Revolving Credit Loan or a
Competitive Bid Loan, the Type of each Loan made and the Interest Period
or maturity date (if any) applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from
the Company to each Bank hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from the Company and each
Bank's share thereof.
(d) The entries made in the Register and the accounts maintained
pursuant to paragraphs (b) and (c) of this subsection shall be prima facie
evidence of the items
18
contained therein; provided, however, that the failure of any Bank or the
Administrative Agent to maintain such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner
affect the obligation of the Company to repay (with applicable interest)
the Loan made to the Company by such Bank in accordance with the terms of
this Agreement.
(e) If requested by any Bank for purposes of subsection 9.6(g), the
Company shall execute and deliver, at the Company's expense, to such Bank
(and deliver a copy thereof to the Administrative Agent) one or more
promissory notes evidencing the Loans owing to such Bank pursuant to this
Agreement. Any such note shall be substantially in the form of Exhibit
A-1, or A-2, as applicable, and shall be entitled to all of the rights and
benefits of this Agreement.
2.5. Facility Fee; Administrative Agent's Fee. (a) The Company
agrees to pay to the Administrative Agent for the account of each Bank a
non-refundable facility fee at the Applicable Facility Fee Rate per annum (i) on
the daily average amount of such Bank's Commitment (whether borrowed or
unborrowed) from and including the date hereof to and excluding the Termination
Date and (ii) on the daily average amount of each Bank's outstanding Loans from
and including the Termination Date to and excluding the earlier of (A) the
Maturity Date and (B) the first date upon which no Loans are outstanding, in
each case payable quarterly in arrears and on each Fee Payment Date.
(b) The Company will pay to the Administrative Agent, for its own
account, an agent's fee equal to the amount agreed upon in writing between
the Company and the Administrative Agent, payable to the Administrative
Agent in such manner as the Company and the Administrative Agent may
agree. Each Bank acknowledges that the Administrative Agent is being paid
certain other fees for its own account in connection with the financing
pursuant to this Agreement in addition to the fees described in this
Agreement.
2.6. Utilization Fee. If the average daily aggregate principal
amount of the Loans outstanding for the calendar quarter preceding a Fee Payment
Date (or such shorter period beginning with the date hereof or ending with the
earlier of (A) the Maturity Date and (B) the first date after the Termination
Date upon which no Loans are outstanding) is (i) in excess of 33.3% but less
than 66.7% or (ii) equal to or greater than 66.7%, as the case may be, of the
average daily Aggregate Commitment for such calendar quarter or period (or in
any case for any period after the Termination Date), the Company agrees to pay
to the Administrative Agent for the account of the Banks a non-refundable
utilization fee (the "Utilization Fee") at the Applicable Utilization Fee Rate
on such average daily aggregate principal amount of the Loans outstanding during
such calendar quarter (or shorter period), payable in arrears on each Fee
Payment Date.
2.7. Extension of Termination Date. (a) The Company may, by written
notice to the Administrative Agent (such notice being an "Extension Notice")
given no earlier than sixty days and no later than forty-five days prior to the
Termination Date, request the Banks to consider an extension of the then
applicable Termination Date to a date 364 days after the then applicable
Termination Date. The Administrative Agent shall promptly transmit any Extension
19
Notice to each Bank. Each Bank shall notify the Administrative Agent whether it
wishes to extend the then applicable Termination Date no earlier than thirty
days, and no later than twenty days, prior to such Termination Date, and any
such notice given by a Bank to the Administrative Agent, once given, shall be
irrevocable as to such Bank. Any Bank which does not expressly notify the
Administrative Agent prior to such twenty day period that it wishes to so extend
the then applicable Termination Date shall be deemed to have rejected the
Company's request for extension of such Termination Date. Banks consenting to
extend the then applicable Termination Date are hereinafter referred to as
"Continuing Banks", and Banks declining to consent to extend such Termination
Date (or Banks deemed to have so declined) are hereinafter referred to as
"Non-Extending Banks". If the Required Banks have elected (in their sole and
absolute discretion) to so extend the Termination Date, the Administrative Agent
shall notify the Company of such election by such Required Banks no later than
fifteen days prior to such Termination Date, and effective on the date of such
notice by the Administrative Agent to the Company, the Termination Date shall be
automatically and immediately so extended. No extension will be permitted
hereunder without the consent of the Required Banks and in no event shall the
Termination Date be extended beyond three years minus three days following the
Closing Date. Upon the delivery of an Extension Notice and upon the extension of
the Termination Date pursuant to this subsection 2.7, the Company shall be
deemed to have represented and warranted on and as of the date of such Extension
Notice and the effective date of such extension, as the case may be, that no
Default or Event of Default has occurred and is continuing. Notwithstanding
anything contained in this Agreement to the contrary, no Bank shall have any
obligation to extend the Termination Date, and each Bank may, in its sole and
absolute discretion, unconditionally and without cause, decline to extend the
Termination Date.
(b) If the Termination Date shall have been extended in accordance
with subsection 2.7(a), all references herein to the "Termination Date"
shall refer to the Termination Date as so extended.
(c) If any Bank shall determine not to extend the Termination Date
as requested by any Extension Notice given by the Company pursuant to
subsection 2.7(a), the Commitment of such Bank shall terminate on the
Termination Date without giving any effect to such proposed extension, and
the Company shall on such date pay to the Administrative Agent, for the
account of such Bank, the principal amount of, and accrued interest on,
such Bank's Loans, together with any amounts payable to such Bank pursuant
to subsection 2.20 and any fees or other amounts owing to such Bank under
this Agreement; provided that if the Company has replaced such
Non-Extending Bank pursuant to subsection 2.7(d) below then the provisions
of such subsection shall apply. The Aggregate Commitment shall be reduced
by the amount of the Commitment of such Non-Extending Bank to the extent
the Commitment of such Non-Extending Bank has not been transferred to one
or more Continuing Banks pursuant to subsection 2.7(d) below.
(d) A Non-Extending Bank shall be obligated, at the request of the
Company and subject to payment by the Company to the Administrative Agent
for the account of such Non-Extending Bank the principal amount of, and
accrued interest on, such Bank's Loans, together with any amounts payable
to such Bank pursuant to subsection 2.20 and any fees or other amounts
owing to such Bank under this Agreement, to transfer without recourse,
representation, warranty (other than good title to its Loans) or expense
to such
20
Non-Extending Bank, at any time prior to the Termination Date applicable
to such Non-Extending Bank, all of its rights and obligations hereunder to
another financial institution or group of financial institutions nominated
by the Company and willing to participate in the facility in the place of
such Non-Extending Bank; provided that, if such transferee is not a Bank,
such transferee(s) satisfies all the requirements of this Agreement and
the Administrative Agent shall have consented to such transfer, which
consent shall not be unreasonably withheld. Each such transferee shall
become a Continuing Bank hereunder in replacement of the Non-Extending
Bank and shall enjoy all rights and assume all obligations on the part of
the Banks set forth in this Agreement. Simultaneously with such transfer,
each such transferee shall execute and deliver to the Administrative Agent
a written agreement assuming all obligations of the Non-Extending Bank it
is replacing set forth in this Agreement, which agreement shall be
reasonably satisfactory in form and substance to the Administrative Agent.
(e) If the Termination Date shall have been extended in respect of
Continuing Banks in accordance with subsection 2.7(a), any notice of
borrowing pursuant to subsection 2.2 or 2.3 specifying a Borrowing Date
occurring after the Termination Date applicable to a Non-Extending Bank or
requesting an Interest Period extending beyond such date shall (a) have no
effect in respect of such Non-Extending Bank and (b) not specify a
requested aggregate principal amount exceeding the Aggregate Available
Commitment (calculated on the basis of the Commitments of the Continuing
Banks).
2.8. Termination or Reduction of Commitments. The Company shall have
the right, upon not less than three Business Days' notice to the Administrative
Agent, to terminate the Aggregate Commitment or, from time to time, to reduce
the amount of the Aggregate Commitment, provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments made in respect of the Loans on the effective date of such
termination or reduction, the aggregate principal amount of the Loans would
exceed the Aggregate Commitment then in effect. 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 Commitments then in effect.
2.9. Optional Prepayments of Revolving Credit Loans. The Company may
at any time and from time to time prepay the Revolving Credit Loans, in whole or
in part, without premium or penalty, upon irrevocable notice to the
Administrative Agent given not less that three Business Days prior to the
prepayment date, in the case of prepayments of Eurodollar Revolving Credit
Loans, or on the prepayment date, in the case of prepayments of Base Rate Loans,
specifying the date and amount of prepayment and whether the prepayment is of
Base Rate Loans, Eurodollar Revolving Credit Loans or a combination thereof,
and, if of a combination thereof, the amount allocable to each. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with accrued interest to such date on the
amount prepaid. Partial prepayments shall be in an aggregate principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. Prepayments made
in respect of any Eurodollar Loans on any day other than the last day of the
applicable Interest Period shall be accompanied by amounts, if any, payable
pursuant to subsection 2.20(d). The Company shall not have the right to prepay
any Competitive Bid Loan without consent of the Bank that made such Competitive
Bid Loan.
21
2.10. Conversion and Continuation Options. (a) The Company may elect
from time to time to convert Eurodollar Revolving Credit Loans to Base Rate
Loans by giving the Administrative Agent at least one Business Day's prior
irrevocable notice of such election, provided that any such conversion of
Eurodollar Revolving Credit Loans may only be made on the last day of an
Interest Period with respect thereto. The Company may elect from time to time to
convert Base Rate Loans to Eurodollar Revolving Credit Loans by giving the
Administrative Agent at least three Working Days' prior irrevocable notice of
such election. Any such notice of conversion to Eurodollar Revolving Credit
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of such notice the Administrative Agent shall
promptly notify each Bank thereof. All or any part of outstanding Eurodollar
Revolving Credit Loans and Base Rate Loans may be converted as provided herein,
provided that (i) no Loan may be converted into a Eurodollar Revolving Credit
Loan when any Event of Default has occurred and is continuing unless the
Administrative Agent or the Required Banks have determined that such a
conversion is appropriate, (ii) any such conversion may only be made if, after
giving effect thereto, subsection 2.12 shall not have been contravened and (iii)
no Revolving Credit Loan may be converted into a Eurodollar Revolving Credit
Loan after the date that is one month prior to the Maturity Date.
(b) Any Eurodollar Revolving Credit Loans may be continued as such
upon the expiration of the then current Interest Period with respect
thereto by the Company giving notice to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period"
set forth in subsection 1.1, of the length of the next Interest Period to
be applicable to such Loans, provided that no Eurodollar Revolving Credit
Loan may be continued as such (i) when any Event of Default has occurred
and is continuing and the Administrative Agent or the Required Banks have
determined that such a continuation is not appropriate, (ii) if, after
giving effect thereto, subsection 2.12 would be contravened or (iii) after
the date that is one month prior to the Maturity Date. If the Company
shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to Base Rate
Loans on the last day of such then expiring Interest Period.
2.11. Applicable Interest Rate Margins, Facility Fee Rate and
Utilization Fee. The Applicable Eurodollar Margin, the Applicable Facility Fee
Rate and the Applicable Utilization Fee Rate (the Applicable Eurodollar Margin,
the Applicable Facility Fee Rate and the Applicable Utilization Fee Rate,
individually or collectively, the "Applicable Margin" or "Applicable Rate")
shall be equal to the percentage per annum set forth below (in basis points).
- -----------------------------------------------------------------------------------------------------
Eurodollar Utilization Utilization
Pricing LT Ratings ST Ratings Facility Rate Loan Fee (> Fee (>
Level S&P/Moody's S&P/Moody's Fee Margin 33.3%) 66.7%)
- -----------------------------------------------------------------------------------------------------
1 AA-/Aa3 and A-1/P-1 5.0 20.0 7.5 15.0
2 A+/A1 and A-1/P-1 6.0 24.0 7.5 15.0
3 A/A2 and A-1/P-1 7.0 28.0 7.5 15.0
4 A-/A3 N/A 8.0 32.0 12.5 25.0
- -----------------------------------------------------------------------------------------------------
22
- -----------------------------------------------------------------------------------------------------
Eurodollar Utilization Utilization
Pricing LT Ratings ST Ratings Facility Rate Loan Fee (> Fee (>
Level S&P/Moody's S&P/Moody's Fee Margin 33.3%) 66.7%)
- -----------------------------------------------------------------------------------------------------
5 BBB+/Baa1 N/A 10.0 40.0 12.5 25.0
6 BBB/Baa2 N/A 15.0 60.0 12.5 25.0
7 BBB-/Baa3 N/A 25.0 80.0 12.5 25.0
- -----------------------------------------------------------------------------------------------------
For purposes of the foregoing, if the Debt Ratings fall within different
pricing levels, then the highest of such pricing levels (i.e., the pricing level
having the lowest numerical designation above) shall apply.
Notwithstanding the foregoing, following the Termination Date the
Applicable Margin for Eurodollar Loans shall be increased by 25 basis points at
each Debt Rating level and the Utilization Fee shall be equal to 25 basis points
at each Debt Rating level.
2.12. Minimum Amounts of Tranches. All borrowings, conversions and
continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of the Loans
comprising each Tranche shall be equal to $25,000,000 or a whole multiple of
$5,000,000 in excess thereof.
2.13. Interest Rates and Payment Dates. (a) The Loans comprising
each Eurodollar Borrowing shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to (i) in the case of each
Eurodollar Revolving Credit Loan, the Eurodollar Rate for the Interest Period in
effect for such Borrowing plus the Applicable Margin and (ii) in the case of
each Eurodollar Competitive Bid Loan, the Eurodollar Rate for the Interest
Period in effect for such Borrowing plus the Margin offered by the Bank making
such Loan and accepted by the Company pursuant to subsection 2.3.
(b) Each Base Rate Loan shall bear interest for each day during
which such Base Rate Loan is outstanding at a rate per annum equal to the
Base Rate.
(c) Each Fixed Rate Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
fixed rate of interest offered by the Bank making such Loan and accepted
by the Company pursuant to subsection 2.3.
(d) If all or a portion of (i) the principal amount of any Loan or
(ii) any interest payable thereon, any fee or any other amount payable
pursuant to the terms of this Agreement (other than attorneys' fees
incurred in connection with the enforcement of the terms hereof) 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
which is (x) in the case of overdue principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of
this subsection plus 2% or (y) in the case of any overdue interest, fee or
other amount, the rate described in paragraph (b) of this subsection plus
2%, in each case from the date of such non-payment until such amount is
paid in full (after as well as before judgment).
23
(e) Interest on each Loan shall be payable in arrears on each
Interest Payment Date applicable to such Loan, the Maturity Date and upon
any prepayment of such Loan, provided that interest accruing pursuant to
paragraph (d) of this subsection shall be payable on demand.
2.14. Computation of Interest and Fees. (a) Interest on Base Rate
Loans shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. Interest on Eurodollar Loans, Fixed Rate
Loans and all fees shall be calculated on the basis of a 360-day year for the
actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Company and the 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
shall become effective as of the opening of business on the day on which such
change in the Base Rate is announced. The Administrative Agent shall as soon as
practicable notify the Company and the Banks of the effective date and the
amount of each such change in interest rate. Notwithstanding anything to the
contrary in this Agreement, interest paid or becoming due hereunder shall in no
event exceed the maximum rate permitted by applicable law.
(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 Company and the Banks in the absence of manifest error. The
Administrative Agent shall, at the request of the Company, deliver to the
Company a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to subsection 2.13.
(c) If any Reference Bank's Commitment shall terminate or all its
Loans shall be assigned for any reason whatsoever, such Reference Bank
shall thereupon cease to be a Reference Bank, and if, as a result of the
foregoing, there shall only be one Reference Bank remaining, the
Administrative Agent (after consultation with the Company and the Banks)
shall, by notice to the Company and the Banks, designate another Bank
acceptable to the Company, as a Reference Bank so that there shall at all
times be at least two Reference Banks.
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If
any of the Reference Banks shall be unable or shall otherwise fail to
supply such rates to the Administrative Agent upon its request, the rate
of interest shall, subject to the provisions of subsection 2.15, be
determined on the basis of the quotations of the remaining Reference Banks
or Reference Bank.
2.15. Inability to Determine Interest Rate. In the event that prior
to the first day of any Interest Period the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Company) 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, the Administrative Agent shall give telex, telecopy or
telephonic notice thereof to the Company and the Banks as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans (including any
Eurodollar Competitive Bid Loan) requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (y) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
24
shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans
shall be converted on the first day of such Interest Period to Base Rate Loans.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Company have
the right to convert Loans to Eurodollar Loans.
2.16. Pro Rata Treatment and Payments. (a) Each Revolving Credit
Borrowing by the Company from the Banks hereunder, each payment by the Company
on account of any fee hereunder and, except as contemplated by subsections
2.1(c)(iii), 2.7(c), 2.21, 2.23 and 2.24 any reduction of the Commitments of the
Banks shall be made pro rata according to the respective Commitment Percentages
of the Banks. Except as contemplated by subsections 2.1(c)(iii), 2.7(c), 2.21,
2.23 and 2.24, each payment (including each prepayment) by the Company on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Banks. Each payment of principal of any
Competitive Bid Borrowing shall be allocated pro rata among the Banks
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Competitive Bid Loans comprising such Borrowing.
Each payment of interest on any Competitive Bid Borrowing shall be allocated pro
rata among the Banks participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Bid Loans comprising such Borrowing. Each Bank agrees that in
computing such Bank's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Bank's percentage of
such Borrowing to the next higher or lower whole dollar amount. All payments
(including prepayments) to be made by the Company hereunder, whether on account
of principal, interest, fees or otherwise, shall be made without set off 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 Banks, at
the Administrative Agent's office specified in subsection 9.2, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lending Installation of the Banks promptly upon receipt in like
funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Working Day, the maturity thereof
shall be extended to the next succeeding Working 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 Working Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Bank prior to a Borrowing Date that such Bank will not make
the amount that would constitute its Commitment Percentage of the
Borrowing on such date available to the Administrative Agent, the
Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such Borrowing Date, and the
Administrative Agent may, in reliance upon such assumption, make available
to the Company a corresponding amount. If such amount is made available to
the Administrative Agent on a date after such Borrowing Date, such Bank
shall pay to the Administrative Agent on demand an amount equal to the
product of (i) the daily average Federal funds rate during such period as
quoted by the Administrative Agent, times (ii)
25
the amount of such Bank's Commitment Percentage of such Borrowing, times
(iii) a fraction the numerator of which is the number of days that elapse
from and including such Borrowing Date to the date on which such Bank's
Commitment Percentage of such Borrowing shall have become immediately
available to the Administrative Agent and the denominator of which is 360.
A certificate of the Administrative Agent submitted to any Bank with
respect to any amounts owing under this subsection shall be conclusive in
the absence of manifest error. If such Bank's Commitment Percentage of
such Borrowing is not in fact made available to the Administrative Agent
by such Bank within three Business Days of such Borrowing Date, the
Administrative Agent shall notify the Company of such Bank's failure to
fund, and shall be entitled to recover such amount with interest thereon
at the rate per annum applicable to Base Rate Loans hereunder, on demand,
from the Company.
2.17. Illegality. Notwithstanding any other provision herein, if any
change in any Requirement of Law or in the interpretation or application thereof
shall make it unlawful for any Bank to make or maintain Eurodollar Loans as
contemplated by this Agreement, (a) the commitment of such Bank hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert Base Rate
Loans to Eurodollar Loans shall forthwith be canceled, (b) the Loans of such
Bank then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law and (c) such Bank shall promptly notify the Administrative Agent
of any such cancellation and conversion pursuant to this subsection 2.17.
2.18. Requirements of Law. (a) In the event that after the date
hereof any change in any Requirement of Law or in the interpretation or
application thereof by any Governmental Authority charged with the
administration or interpretation thereof or compliance by any Bank or the
Lending Installation of any Bank with any request or directive (whether or not
having the force of law) from any such Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Bank or the Lending Installation of any Bank
to any tax of any kind whatsoever with respect to this Agreement or any
Eurodollar Loan or Fixed Rate Loan made by it, or change the basis of
taxation of payments to such Bank or the Lending Installation of such Bank
in respect thereof (except for taxes covered by subsection 2.19 and
changes in the rate of tax on the net income of such Bank or the Lending
Installation of such Bank);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Bank or the Lending Installation of such Bank which is not
otherwise included in the determination of interest on the Eurodollar Rate
Loans or Fixed Rate Loans hereunder; or
(iii) shall impose on such Bank or the Lending Installation of such
Bank any other condition;
26
and the result of any of the foregoing is to increase the cost to such Bank or
the Lending Installation of such Bank, by an amount which such Bank deems to be
material, of making, converting into, continuing or maintaining any Eurodollar
Loan or Fixed Rate Loan or to reduce any amount receivable hereunder in respect
thereof then, in any such case, the Company shall pay such Bank, within 30 days
after its demand, any additional amounts necessary to compensate such Bank for
such increased cost or reduced amount receivable. If any Bank becomes entitled
to claim any additional amounts pursuant to this subsection, it shall promptly
notify the Company, through the Administrative Agent, of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this subsection submitted by such Bank, through the
Administrative Agent, to the Company shall set forth, in reasonable detail, the
basis for such claim and the method of computation thereof and be conclusive in
the absence of manifest error. This covenant shall survive the termination of
this Agreement and the payment of all other amounts payable hereunder.
Notwithstanding the foregoing, no Bank shall be entitled to request compensation
under this Section with respect to any Competitive Bid Loan if it shall have
been aware of the change giving rise to such request at the time of submission
of such Bank's Competitive Bid pursuant to which such Competitive Loan shall
have been made.
(b) In the event that any Bank shall have determined that any change
in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Bank or the
Lending Installation of such Bank or any corporation controlling such Bank
with any request or directive regarding capital adequacy (whether or not
having the force of law) from any Governmental Authority, in each case,
made subsequent to the date hereof, does or shall have the effect of
reducing the rate of return on such Bank's, such Lending Installation's or
such corporation's capital as a consequence of its obligations hereunder
to a level below that which such Bank, such Lending Installation or such
corporation could have achieved but for such change or compliance (taking
into consideration such Bank's, such Lending Installation's or such
corporation's policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, after
submission by such Bank to the Company of a written request therefor, the
Company shall pay to such Bank within 90 days after demand such additional
amount or amounts as will compensate such Bank for such reduction. Each
such request shall be accompanied by such information in respect of the
basis for the claim made thereby and the method of computation thereof as
such Bank shall at the time customarily provide to other borrowers deemed
by it to be similarly situated. This covenant shall survive the
termination of this Agreement and the payment of all other amounts payable
hereunder.
(c) Each Bank, through the Administrative Agent, will promptly
notify the Company of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Bank to compensation pursuant to
this subsection. Notwithstanding the foregoing, no Bank shall be entitled
to any compensation described in this Section unless, at the time it
requests such compensation, it is the policy or general practice of such
Bank to request compensation for comparable costs in similar circumstances
under comparable provisions of other credit agreements for comparable
customers (as determined by such Bank) unless specific facts or
circumstances applicable to the Company or the transactions contemplated
by this Agreement would alter such policy or general practice. If any Bank
fails to give the notice described in subsection 2.18(c) within 90 days
after it
27
obtains such actual knowledge of the event required to be described in
such notice, such Bank shall, with respect to any compensation that would
otherwise be owing to such Bank under this subsection 2.18, only be
entitled to payment for increased costs incurred from and after the date
that such Bank does give such notice. If the Company shall reimburse any
Bank pursuant to this Section for any cost and such Bank shall
subsequently receive a refund in respect thereof, such Bank shall so
notify the Company and, upon its request, will pay to the Company the
portion of such refund that such Bank shall determine in good faith to be
allocable to the costs so reimbursed.
2.19. Taxes. (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding, in the case of the Administrative Agent and each Bank,
taxes based on or measured by net income imposed on the Administrative Agent or
such Bank, as the case may be, as a result of a present or former connection
between the jurisdiction of the government or taxing authority imposing such tax
and the Administrative Agent or such Bank (excluding a connection arising solely
from the Administrative Agent or such Bank having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement) or any political subdivision or taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
and withholdings being hereinafter called "Taxes"). If any Taxes are required to
be withheld from any amounts payable to the Administrative Agent or any Bank
hereunder, the amounts so payable to the Administrative Agent or such Bank shall
be increased to the extent necessary to yield to the Administrative Agent or
such Bank (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement;
provided, however, that the Company shall not be required to increase any
amounts payable to any Non-U.S. Lender (as defined in subsection 2.19(b)) with
respect to any Taxes that would not have been imposed but for such Non-U.S.
Lender's failure to provide to the Company the Internal Revenue Service Forms
required to be provided to the Company pursuant to subsection 2.19(b). Whenever
any Taxes are payable by the Company, promptly thereafter the Company shall send
to the Administrative Agent for its own account or for the account of such Bank,
as the case may be, a certified copy of an original official receipt received by
the Company showing payment thereof. If such evidence of payment is unavailable,
other evidence of such payment, satisfactory to the Administrative Agent, shall
be provided by the Company. If the Company fails to pay any Taxes when due to
the appropriate taxing authority or fails to remit to the Administrative Agent
the required receipts or other required documentary evidence, the Company shall
indemnify the Administrative Agent and the Banks for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Bank as a result of any such failure.
(b) Each Bank represents and warrants to the Company that under
currently applicable law and treaties no Taxes will be required to be
withheld by the Company with respect to any payments to be made to such
Bank hereunder. Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes (each, a "Non-U.S. Lender") agrees to deliver to the Company and
the Administrative Agent on or prior to the Closing Date or, in the case
of
28
a Non-U.S. Lender that is an assignee or transferee of, or purchaser of a
participation in, an interest under this Agreement pursuant to subsection
9.6 (unless such Non-U.S. Lender was already a Bank hereunder immediately
prior to such assignment or transfer), on the date of such assignment or
transfer to such Non-U.S. Lender, (i) two (2) accurate and complete
original signed copies of Internal Revenue Service Form W-8ECI or Form
W-8BEN (or successor forms) certifying that such Non-U.S. Lender is
entitled as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement,
or (ii) if such Non-U.S. Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete
exemption under an income tax treaty) (or any successor forms) pursuant to
clause (i) above, (x) a certificate substantially in the form of Exhibit K
(any such certificate, an "Exemption Certificate"), and (y) two (2)
accurate and complete original signed copies of Internal Revenue Service
Form W-8BEN (with respect to the portfolio interest exemption) (or
successor form) certifying that such Non-U.S. Lender is entitled as of
such date to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement. In
addition, each Non-U.S. Lender agrees that from time to time after the
Closing Date, when the passage of time or a change in facts or
circumstances renders the previous certification obsolete or inaccurate in
any material respect, such Non-U.S. Lender will deliver to the Company and
the Administrative Agent two (2) new accurate and complete original signed
copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect
to a complete exemption under an income tax treaty), or Form W-8BEN (with
respect to the portfolio interest exemption) and an Exemption Certificate,
as the case may be, and such other forms as may be required in order to
confirm or establish that such Non-U.S. Lender is entitled to a continued
exemption from United States withholding tax with respect to payments
under this Agreement, or such Non-U.S. Lender shall immediately notify the
Company and the Administrative Agent of its inability to deliver any such
form or Exemption Certificate, in which case such Non-U.S. Lender shall
not be required to deliver any such form or Exemption Certificate.
Notwithstanding anything to the contrary contained in this subsection
2.19, the Company agrees to pay any additional amounts and to indemnify
each Non-U.S. Lender in the manner set forth in subsection 2.19(a) in
respect of any United States Taxes deducted or withheld by them if such
Taxes would not have been deducted or withheld but for any change after
the Closing Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof.
(c) If any Bank (or Transferee) or the Administrative Agent shall
become aware that it is entitled to receive a refund or credit (such
credit to include any increase in any foreign tax credit) as a result of
Taxes (including any penalties or interest with respect thereto) as to
which it has been indemnified by the Company pursuant to this subsection
2.19, it shall promptly notify the Company of the availability of such
refund or credit and shall, within 30 days after receipt of a request by
the Company, apply for such refund or credit at the Company's expense, and
in the case of any application for such refund or credit by the Company,
shall, if legally able to do so, deliver to the Company such certificates,
forms or other documentation as may be reasonably necessary to assist the
Company in such application. If any Bank (or Transferee) or the
Administrative Agent
29
receives a refund or credit (such credit to include any increase in any
foreign tax credit) in respect to any Taxes as to which it has been
indemnified by the Company pursuant to this subsection 2.19, it shall
promptly notify the Company of such refund or credit and shall, within 60
days after receipt of such refund or the benefit of such credit (such
benefit to include any reduction of the taxes for which any Bank (or
Transferee) or the Administrative Agent would otherwise be liable due to
any increase in any foreign tax credit available to such Bank (or
Transferee) or the Administrative Agent), repay the amount of such refund
or benefit of such credit (with respect to the credit, as determined by
the Bank, Transferee or Administrative Agent in its sole, reasonable
judgment) to the Company (to the extent of amounts that have been paid by
the Company under this subsection 2.19 with respect to Taxes giving rise
to such refund or credit), plus any interest received with respect
thereto, net of all reasonable out-of-pocket expenses of such Bank (or
Transferee) or the Administrative Agent and without interest (other than
interest actually received from the relevant taxing authority or other
Governmental Authority with respect to such refund or credit); provided,
however, that the Company, upon the request of such Bank (or Transferee)
or the Administrative Agent, agrees to return the amount of such refund or
benefit of such credit (plus interest) to such Bank (or Transferee) or the
Administrative Agent in the event such Bank (or Transferee) or the
Administrative Agent is required to repay the amount of such refund or
benefit of such credit to the relevant taxing authority or other
Governmental Authority.
(d) The agreements in this subsection shall survive the termination
of this Agreement and the payment of all other amounts payable hereunder.
2.20. Indemnity. The Company agrees to indemnify each Bank and to
hold each Bank harmless from any loss or expense which such Bank may sustain or
incur as a consequence of (a) default by the Company in payment when due of the
principal amount of or interest on any Eurodollar Loan or Fixed Rate Loan, (b)
default by the Company in making a borrowing of, conversion into or continuation
of any Eurodollar Loan, or any borrowing of a Fixed Rate Loan, after the Company
has given a notice requesting the same in accordance with the provisions of this
Agreement, (c) default by the Company in making any prepayment after the Company
has given a notice thereof in accordance with the provisions of this Agreement
or (d) the making of a prepayment of a Eurodollar Loan or Fixed Rate Loan on a
day which is not the last day of an Interest Period with respect thereto,
including, in each case, any such loss or expense arising from the reemployment
of funds obtained by it (or which it has arranged to obtain) or from fees
payable to terminate the deposits from which such funds were obtained (or which
it has arranged to obtain). Such indemnification shall exclude any loss of
margin hereunder, but shall include an amount equal to the excess, if any, as
reasonably determined by such Bank, of (i) its cost of obtaining the funds for
the Loan being paid, prepaid, converted or not borrowed, converted or continued
or transferred or assigned (assumed to be the Eurodollar Rate or, in the case of
a Fixed Rate Loan, the fixed rate of interest applicable thereto) for the period
from the date of such payment, prepayment or conversion or failure to borrow,
convert, or continue or transfer or assignment to the last day of the current or
anticipated Interest Period for such Loan) over (ii) the amount of interest (as
reasonably determined by such Bank) that would be realized by such Bank in
reemploying the funds so paid, prepaid, converted or not borrowed, converted or
continued or transferred or assigned for such period or Interest Period, as the
case may be. Nothing in this Section shall be deemed to give the Company any
right to prepay any
30
Competitive Bid Loan or other Loan the prepayment of which is otherwise
prohibited pursuant to the terms of this Credit Agreement. This covenant shall
survive the termination of this Agreement and the payment of all other amounts
payable hereunder.
2.21. Actions of Banks. Each Bank agrees to use reasonable efforts
(including reasonable efforts to change the Lending Installation for its Loans)
to avoid or minimize any illegality pursuant to subsection 2.17 or any amounts
which might otherwise be payable pursuant to subsection 2.18 or 2.19; provided,
however, that such efforts shall not cause the imposition on such Bank of any
additional costs or legal or regulatory burdens deemed by such Bank to be
material. In the event that such reasonable efforts are insufficient to avoid
all such illegality, all such events or circumstances or all amounts that might
be payable pursuant to subsection 2.18 or 2.19, then the Company may remove any
such Bank pursuant to subsection 2.23 or replace any such Bank pursuant to
subsection 2.24.
2.22. Lending Installations. Each Bank may hold its Loans at any
Lending Installation selected by it and may change its Lending Installation from
time to time, provided that no such Bank shall be entitled to receive any
greater amount under subsections 2.18, 2.19, 2.20 or 9.5 as a result of a
transfer of any such Loans to a different office of such Bank than it would be
entitled to immediately prior thereto unless such claim would have arisen even
if such transfer had not occurred. All provisions of this Agreement shall apply
to any such Lending Installation. Each Bank may, by written or telex notice to
the Company and the Administrative Agent, designate a Lending Installation
through which the Loans will be made by it and for whose account payments are to
be made.
2.23. Removal of Banks. The Company shall be permitted, from time to
time in its discretion, to remove Banks from this Agreement and to reduce the
Aggregate Commitment; provided, that (a) the Aggregate Commitment may not be
reduced below $1,000,000,000 as a result of removal of one or more Banks from
this Agreement pursuant to this Section, (b) after giving effect to such
removal, no Bank shall have a Commitment hereunder which exceeds an amount equal
to 20% of the Aggregate Commitment and (c) a Bank may not be removed from this
Agreement at any time a Default or an Event of Default exists and remains
uncured or unwaived under this Agreement. If the Company elects to terminate the
Commitment of a Bank, it shall give not less than 30 days written notice to the
Administrative Agent and such Bank. On the effective date of such termination,
the Company shall pay to the Administrative Agent, for the account of such Bank,
in immediately available funds, an amount equal to all Loans and other amounts
(including accrued interest and fees) owing to such Bank plus the amounts, if
any, owing to such Bank under subsections 2.18, 2.19, 2.20 and 9.5.
Notwithstanding the removal of any Bank pursuant to this subsection, such Bank
shall continue to have all such rights as would survive the termination of this
Agreement under subsections 2.18, 2.19, 2.20 and 9.5.
2.24. Replacement of Banks. In the event that any Bank (a "Notifying
Bank") (a) shall demand payment by the Company of any amount pursuant to
subsection 2.18 or 2.19, (b) shall cause the suspension of the availability of
any Type pursuant to subsection 2.17, (c) shall have excused itself from funding
a Loan pursuant to subsection 2.17, (d) shall have failed to make available a
Loan on the date on which it was obligated to do so or (e) shall have failed to
consent to any waiver, amendment or modification of this Agreement that has been
consented to by the Required Banks, the Company may, upon notice to such
Notifying Bank and the
31
Administrative Agent, nominate a new financial institution or group of financial
institutions willing to participate in the facility in the place of such
Notifying Bank ("Replacement Bank"). Upon receipt of such notice from the
Company and upon the consent of the Administrative Agent as to the Replacement
Bank, which consent shall not be unreasonably withheld, such Notifying Bank
shall be obligated to transfer without recourse, representation, warranty (other
than that it has not in any way transferred, assigned, encumbered, sold or
conveyed its rights under its Loans) or expense to such Notifying Bank, all of
its rights (other than rights that would survive the termination of this
Agreement pursuant to subsections 2.18, 2.19, 2.20 and 9.5) and obligations
hereunder to the Replacement Bank; provided that the Replacement Bank satisfies
all of the requirements of this Agreement and pays such Notifying Bank all
amounts owing to such Notifying Bank under this Agreement and the Company pays
such Notifying Bank any funding losses incurred pursuant to subsection 2.20, if
any, as a result of such replacement. This subsection 2.24 shall in no way
affect the right of the Company to replace, remove or add a Bank pursuant to any
other provision of this Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make the
Loans hereunder, the Company hereby represents and warrants to the
Administrative Agent and each Bank that:
3.1. Financial Condition. The consolidated balance sheet of the
Company and its consolidated Subsidiaries as of December 31, 2003, and the
related consolidated statements of income and of cash flows for the period ended
on such date, reported on by PricewaterhouseCoopers LLP, copies of which have
heretofore been furnished to each Bank, present fairly the consolidated
financial condition of the Company and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their consolidated
cash flows for the fiscal year then ended. All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by such accountants or Responsible Officer, as the case may
be, and as disclosed therein).
3.2. No Change. Since December 31, 2003 and until the date of this
Agreement, except to the extent publicly disclosed on or prior to December 31,
2003 through filings made by the Company with the SEC or press releases issued
by the Company there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
3.3. Corporate Existence; Compliance with Law; Significant
Subsidiaries. Each of the Company and its Significant Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and (b) has the power and authority to conduct
the business in which it is currently engaged. Each Significant Subsidiary as of
December 31, 2003 is listed on Schedule II hereto.
3.4. Corporate Power; Authorization; Enforceable Obligations. The
Company has the corporate power and authority to make, deliver and perform this
Agreement and to borrow hereunder and has taken all necessary corporate action
to authorize the borrowings on the
32
terms and conditions of this Agreement and to authorize the execution, delivery
and performance of this Agreement. No consent or authorization of, filing with
or other act by or in respect of, any Governmental Authority or any other Person
is required on the part of the Company in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement. This Agreement has been duly executed and
delivered on behalf of the Company. This Agreement constitutes a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
3.5. No Legal Bar. The execution, delivery and performance of this
Agreement, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or material Contractual Obligation of the Company
or of any of its Significant Subsidiaries and will not result in, or require,
the creation or imposition of any Lien on any of its or their material
respective properties or revenues pursuant to any such Requirement of Law or
material Contractual Obligation.
3.6. No Material Litigation. (a) No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or any of
its Significant Subsidiaries or against any of its or their respective
properties or revenues, in any case that involves this Agreement, the execution,
delivery and performance of this Agreement or the Borrowings hereunder.
(b) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of
the Company, threatened by or against the Company or any of its
Significant Subsidiaries or against any of its or their respective
properties or revenues which could reasonably be expected to result in a
violation of subsection 6.3, except to the extent publicly disclosed prior
to the date of this Agreement through filings made by the Company with the
SEC or press releases issued by the Company.
3.7. No Default. (a) Neither the Company nor any of its Significant
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to result in a
violation of subsection 6.3.
(b) No Default or Event of Default has occurred and is continuing.
3.8. Aggregation of the Representations and Warranties Relating to
Net Worth. The total effect of each event or circumstance referred to in
subsections 3.6(b) and 3.7(a) is not, when taken together in the aggregate,
reasonably expected to result in a violation of subsection 6.3.
3.9. Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as
33
now and from time to time hereafter in effect in violation of the provisions of
Regulations T, U and X of the Board of Governors of the Federal Reserve System.
3.10. ERISA. Each Plan complies in all material respects with all
applicable provisions of ERISA and the Code, no Reportable Event has occurred
with respect to any Plan, neither the Company nor any other members of any
Commonly Controlled Entity has withdrawn from any Plan or initiated steps to do
so, and no steps have been taken to terminate any Plan, except in any case to
the extent that such failures could not, in the aggregate, reasonably be
expected to result in a violation of subsection 6.3.
3.11. Investment Company Act. The Company is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
3.12. Purpose of Loans. The proceeds of the Loans shall be used by
the Company for general corporate purposes and to repay outstanding
Indebtedness.
SECTION 4. CONDITIONS PRECEDENT
4.1. Conditions to Initial Loans. The agreement of each Bank to make
the initial Loan requested to be made by it is subject to the satisfaction of
the following conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Bank.
(b) Corporate Proceedings of the Company. The Administrative Agent
shall have received, with a counterpart for each Bank, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of the Company authorizing (i) the
execution, delivery and performance of this Agreement, and (ii) the
borrowings contemplated hereunder, certified by the Secretary or an
Assistant Secretary of the Company as of the Closing Date pursuant to a
certificate substantially in the form of Exhibit D-2, which certificate
shall state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(c) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Bank, true and complete copies of
the certificate of incorporation and by-laws of the Company, certified as
of the Closing Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of the Company.
(d) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Bank, (i) the executed legal opinion of the
general counsel of the Company, substantially in the form of Exhibit B-1,
and (ii) the executed legal opinion of Simpson Thacher & Bartlett LLP,
counsel to the Administrative Agent, substantially in the form of Exhibit
B-2.
34
(e) Certificates. The Administrative Agent shall have received, with
a counterpart for each Bank, an officer's certificate of the chief
financial officer, treasurer or controller of the Company, substantially
in the form of Exhibit D-1, and a certificate of incumbency of the
Company, substantially in the form of Exhibit E.
(f) Existing 364-Day Credit Agreement. The Existing 364-Day Credit
Agreement shall have been terminated and all amounts, if any, owing by the
Company thereunder shall have been paid in full.
(g) Existing 5-Year Credit Agreement. The Existing 5-Year Credit
Agreement shall have been terminated and all amounts, if any, owing by the
Company thereunder shall have been paid in full.
(h) Transfer Instructions. The Administrative Agent shall have
received written money transfer instructions addressed to the
Administrative Agent and signed by a duly authorized officer, together
with such other related money transfer authorizations as the
Administrative Agent may have reasonably requested.
(i) New 5-Year Credit Agreement. The New 5-Year Credit Agreement
shall have been duly executed and delivered to JPMorgan Chase Bank, as
administrative agent of the New 5-Year Credit Agreement.
4.2. Conditions to Each Loan. The agreement of each Bank to make any
Loan requested to it on any date (including, without limitation, its initial
Loan) is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Company in Section 3 of this Agreement shall be
true and correct in all material respects on and as of such date as if
made on and as of such date except (i) to the extent such representations
and warranties expressly relate to an earlier date, (ii) for changes in
the Schedules hereto reflecting transactions permitted by this Agreement
and (iii) subsequent to the Closing Date, for the representations and
warranties contained in subsection 3.2.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
(c) Borrowing Notice. The Administrative Agent shall have received a
notice of borrowing from the Company, substantially in the form of Exhibit
F.
Each Borrowing by the Company hereunder shall constitute a representation and
warranty by the Company as of the date of such Loan that the conditions
contained in this subsection 4.2 have been satisfied. It is understood and
agreed that conversions and continuations of Revolving Credit Loans pursuant to
subsection 2.10 shall not be subject to the conditions set forth in this
subsection 4.2.
35
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as any Commitment shall
remain in effect or any principal of or interest on any Loan or any other amount
shall be unpaid hereunder, the Company shall:
5.1. Financial Statements. Furnish to:
(a) each Bank, promptly after becoming available, each annual and
quarterly report which the Company files with the SEC;
(b) each Bank, promptly after becoming available and in any event
within 120 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and its consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the SEC by
PricewaterhouseCoopers LLP or other independent public accountants of
nationally recognized standing (provided that no such financial statements
of the Company need be so delivered if the Company shall have delivered to
such Bank its annual report for the relevant year containing such
financial statements pursuant to subsection 5.1(a));
(c) each Bank, promptly after becoming available and in any event
within 60 days after the end of each of the first three quarters of each
fiscal year of the Company, (i) a consolidated balance sheet of the
Company and its consolidated Subsidiaries as of the end of such quarter
and (ii) the related consolidated statements of income and cash flows for
such quarter and for the portion of the Company's fiscal year ended at the
end of such quarter, setting forth in comparative form (i) in the case of
clause (i) above, the figures for the previous fiscal year end, and (ii)
in the case of clause (ii) above, the figures for the corresponding
quarter and the corresponding portion of the Company's previous fiscal
year, all certified (subject to the absence of footnotes and normal
year-end adjustments) as to fairness of presentation, generally accepted
accounting principles and consistency by the chief financial officer or
the chief accounting officer of the Company (the "Certificate") (provided
that no such financial statements of the Company or the Certificate need
be so delivered if the Company shall have delivered to such Bank its
quarterly report for the relevant quarter containing such financial
statements pursuant to subsection 5.1(a);
all such financial statements to fairly present in all material respects the
financial condition and results of operations of the Company and to be prepared
in reasonable detail and in accordance with Agreement Accounting Principles
(except as approved by such accountants or officer, as the case may be, and
disclosed therein);
(d) the Administrative Agent (for distribution to each Bank), each
Report on Form 8-K (if any) which the Company files with the SEC;
36
(e) the Administrative Agent (for distribution to each Bank), upon
specific request, copies of all financial statements and reports which the
Company has sent to holders of its publicly issued debt securities, and
after the same are filed, copies of all financial statements and reports
which the Company may make to, or file with, the SEC; and
(f) the Administrative Agent (for distribution to each Bank
requesting such information), promptly, such other information regarding
the operations, business affairs and financial condition of the Company as
any Bank may from time to time reasonably request through the
Administrative Agent.
Any financial statement required to be furnished pursuant to this Section 5.1
shall be deemed to have been furnished on the date on which the Company gives
notice to the Administrative Agent (who shall then give notice to the Banks)
that the Company has posted such financial statement, or provided a link
thereto, on the Company's website or on the Company's behalf on the Intralinks
website on the Internet at www.intralinks.com or another relevant website, if
any, to which each Bank and the Administrative Agent have access.
Notwithstanding the foregoing, the Company shall deliver paper copies of any
financial statement referred to in this Section 5.1 to any Bank if the
Administrative Agent, on behalf of such Bank, requests the Company to furnish
such paper copies. Except as provided in the preceding sentence, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to in Section 5.1, and in any event
shall have no responsibility to monitor compliance by the Company with any such
request for delivery, and each Bank shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.
5.2. Payment of Obligations. Pay, discharge or otherwise satisfy,
and cause each of its Significant Subsidiaries to pay, discharge or otherwise
satisfy, at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Company or its Significant Subsidiaries, as the case may be, or
except to the extent that the failure to pay, discharge or otherwise satisfy the
same could not, in the aggregate, reasonably be expected to result in a
violation of subsection 6.3.
5.3. Conduct of Business and Maintenance of Existence. Preserve,
renew and keep in full force and effect, and cause each of its Significant
Subsidiaries to preserve, renew and keep in full force and effect, its corporate
existence and take, and cause each of its Significant Subsidiaries to take, all
reasonable action to maintain all rights, privileges and franchises material to
the normal conduct of its significant businesses, provided, however, that
notwithstanding this subsection 5.3, the Company or any Significant Subsidiary
may (a) discontinue any of its businesses that are no longer deemed advantageous
to it (such determination to be in the sole and absolute discretion of the
Company or such Significant Subsidiary) and (b) sell or dispose of any assets,
subsidiaries or the capital stock thereof, or consolidate with, accept a merger
of, or permit the merger of such Person into any other Person in a transaction
permitted pursuant to subsection 6.2; and comply, and cause each of its
Significant Subsidiaries to comply, in all material respects with all
Requirements of Law
37
(including, but not limited to, ERISA), except to the extent that failure to
comply therewith could not, in the aggregate, reasonably be expected to result
in a violation of subsection 6.3.
5.4. Notices. Promptly give notice (or in the case of subsection
5.4(d), a copy) to the Administrative Agent of:
(a) the occurrence of any Default or Event of Default;
(b) any litigation, investigation or proceeding affecting the
Company or any of its Significant Subsidiaries which could reasonably be
expected to result in a violation of subsection 6.3;
(c) the following events, as soon as possible and in any event
within 30 days after the Company knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect
to any Plan, or any withdrawal from, or the termination, Reorganization or
Insolvency of any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the Company
or any Commonly Controlled Entity or any Multiemployer Plan with respect
to the withdrawal from, or the termination, Reorganization or Insolvency
of, any Plan, in any event which could reasonably be expected to result in
a Material Adverse Effect; and
(d) as soon as possible and in any event within 30 days after
receipt by the Company, a copy of (i) any notice or claim to the effect
that the Company or any Subsidiary is or may be liable to any Person as a
result of the release by the Company, any of its Subsidiaries, or any
other Person of any toxic or hazardous waste or substance into the
environment, and (ii) any notice alleging any violation of any federal,
state or local environmental, health or safety law or regulation by the
Company or any Subsidiary, which could reasonably be expected to result in
a claim, liability or loss that will, in the case of clauses (i) or (ii),
when aggregated with the effect of any failure by the Company to (x)
maintain and preserve all property material to the conduct of its
business, (y) keep such property in good repair, working order and
condition and (z) from time to time make, or cause to be made, all needful
and proper repairs, renewals, additions, improvements and replacements
thereto, result in a violation of subsection 6.3.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company proposes to take with respect thereto.
5.5. Status of Obligations. Ensure that its obligations under this
Agreement shall at all times be direct and general obligations of the Company
and shall at all times rank at least pari passu in all respects with all other
outstanding unsecured and unsubordinated indebtedness of the Company.
5.6. Maintenance of Property. At all times maintain and preserve,
and cause each of its Significant Subsidiaries to maintain and preserve, all
property material to the conduct of its business and keep such property in good
repair, working order and condition and from time to time make, or cause to be
made, all needful and proper repairs, renewals, additions, improvements and
replacements thereto except where the failure to do so would not result in a
38
violation of subsection 6.3; provided, however, that nothing in this subsection
5.6 shall prevent the Company or any Subsidiary from (a) discontinuing the
operation and maintenance of any of its properties no longer deemed useful in
the conduct of its business or (b) selling or disposing of any assets,
subsidiaries or the capital stock thereof in a transaction permitted pursuant to
subsection 6.2.
5.7. Payment of Taxes. Pay and discharge promptly when due, and
cause each of its Significant Subsidiaries to pay and discharge promptly when
due, all taxes, assessments and governmental charges or levies the amounts of
which are material to the business, assets, operations, prospects or condition,
financial or otherwise, of the Company and the Subsidiaries taken as a whole,
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default; provided, however, that
such payment and discharge shall not be required with respect to any such tax,
assessment, charge, or levy so long as the validity or amount thereof shall be
contested in good faith by appropriate actions or proceedings and the Company
shall have set aside on its books appropriate reserves with respect thereto.
5.8. Use of Proceeds. Use the proceeds of the Loans for general
corporate purposes and to repay outstanding Indebtedness. The Company will not,
nor will it permit any Subsidiary to, use any of the proceeds of the Loans to
purchase or carry any "margin stock" (as defined in Regulation U) in violation
of the provisions of Regulations T, U and X of the Board of Governors of the
Federal Reserve System.
SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as any Commitment remains in
effect or any principal of or interest on any Loan or any other amount shall be
unpaid hereunder, the Company shall not:
6.1. Negative Pledge. (a) (1) Create, incur or suffer to exist any
Lien upon any of its property or assets to secure indebtedness for money
borrowed, incurred, issued, assumed or guaranteed by the Company or (2) create
any Lien upon any of its property or assets to secure any indebtedness or other
obligations of any Person if such Lien is a Lien created by any action of the
Company (including any grant by the Company of any Lien pursuant to a written
instrument or by the pledge by the Company of property, but excluding Liens
arising by operation of law), without, in the case of any Lien described in the
foregoing clauses (1) and (2), thereby expressly securing the due and punctual
payment of the principal of and interest on the Loans and all other amounts
payable by the Company hereunder equally and ratably with any and all other
obligations and indebtedness secured by such Lien, so long as any such other
obligations and indebtedness shall be so secured; provided, however, that this
restriction shall not prohibit or otherwise restrict:
(i) the Company from creating, incurring or suffering to exist
upon any of its property or assets any Lien in favor of any subsidiary of
the Company;
39
(ii) the Company (A) from creating, incurring or suffering to
exist a purchase money Lien upon any such property, assets, capital stock
or indebtedness acquired by the Company prior to, at the time of, or
within one year after (1) in the case of physical property or assets, the
later of the acquisition, completion of construction (including any
improvements on existing property) or commencement of commercial operation
of such property or (2) in the case of shares of capital stock,
indebtedness or other property or assets, the acquisition of such shares
of capital stock, indebtedness, property or assets, (B) from acquiring
property or assets subject to Liens existing thereon at the date of
acquisition thereof, whether or not the indebtedness secured by any such
Lien is assumed or guaranteed by the Company, or (C) from creating,
incurring or suffering to exist Liens upon any property of any Person,
which Liens exist at the time any such Person is merged with or into or
consolidated with the Company (or becomes a subsidiary of the Company) or
which Liens exist at the time of a sale or transfer of the properties of
any such Person as an entirety or substantially as an entirety to the
Company;
(iii) the Company from creating, incurring or suffering to
exist upon any of its property or assets Liens in favor of the United
States of America or any State thereof or the District of Columbia, or any
agency, department or other instrumentality thereof, to secure progress,
advance or other payments pursuant to any contract or provision of any
statute (including maintaining self-insurance or participating in any fund
in connection with worker's compensation, disability benefits,
unemployment insurance, old age pensions or other types of social
benefits, or joining in any other provisions or benefits available to
companies participating in any such arrangements);
(iv) the Company from creating, incurring or suffering to
exist upon any of its property or assets Liens securing the performance of
letters of credit, bids, tenders, sales contracts, purchase agreements,
repurchase agreements, reverse repurchase agreements, bankers'
acceptances, leases, surety and performance bonds, and other similar
obligations incurred in the ordinary course of business;
(v) the Company from creating, incurring or suffering to exist
Liens upon any real property acquired or constructed by the Company
primarily for use in the conduct of its business;
(vi) the Company from entering into any arrangement with any
Person providing for the leasing by the Company of any property or assets,
which property or assets have been or will be sold or transferred by the
Company to such Person with the intention that such property or assets
will be leased back to the Company, if the obligations in respect of such
lease would not be included as liabilities on a consolidated balance sheet
of the Company;
(vii) the Company from creating, incurring or suffering to
exist upon any of its property or assets Liens to secure non-recourse debt
in connection with the Company engaging in any leveraged or
single-investor or other lease transactions, whether (in the case of Liens
on or relating to leases or groups of leases or the particular properties
subject thereto) such Liens are on the particular properties subject to
any leases
40
involved in any of such transactions and/or the rental or other payments
or rights under such leases or, in the case of any group of related or
unrelated leases, on the properties subject to the leases comprising such
group and/or on the rental or other payments or rights under such leases,
or on any direct or indirect interest therein, and whether (in any case)
(A) such Liens are created prior to, at the time of, or at any time after
the entering into of such lease transactions and/or (B) such leases are in
existence prior to, or are entered into by the Company at the time of or
at any time after, the purchase or other acquisition by the Company of the
properties subject to such leases;
(viii) the Company from creating, incurring or suffering to
exist (A) other consensual Liens in the ordinary course of business of the
Company that secure indebtedness that, in accordance with generally
accepted accounting principles, would not be included in total liabilities
as shown on the Company's consolidated balance sheet, or (B) Liens created
by the Company in connection with any transaction intended by the Company
to be a sale of property or assets of the Company, provided that such
Liens are upon any or all of the property or assets intended to be sold,
the income from such property or assets and/or the proceeds of such
property or assets;
(ix) the Company from creating, incurring or suffering to
exist Liens on property or assets financed through tax-exempt municipal
obligations, provided that such Liens are only on the property or assets
so financed;
(x) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any of the
foregoing; provided, however, that any such extension, renewal or
replacement shall be limited to all or a part of the property or assets
(or substitutions therefor) which secured the Lien so extended, renewed or
replaced (plus improvements on such property); and
(xi) the Company from creating, incurring or suffering to
exist any other Lien not otherwise permitted by any of the foregoing
clauses (i) through (ix) above if the aggregate amount of all secured debt
of the Company secured by such Liens would not exceed 10% of the excess of
the Company's consolidated assets over the consolidated liabilities as
shown on the Company's most recent audited consolidated financial
statements in accordance with generally accepted accounting principles.
(b) For the purposes of this subsection 6.1, any contract by which
title is retained as security (whether by lease, purchase, title retention
agreement or otherwise) for the payment of a purchase price shall be
deemed to be a purchase money Lien. Nothing in this subsection 6.1 shall
apply to any Lien of any kind upon any of the properties of any character
of the Company existing on the date of execution and delivery of this
Agreement.
(c) Subject to subsection 6.3, nothing contained in this subsection
6.1 or elsewhere in this Agreement shall prevent or be deemed to prohibit
the creation, assumption or guaranty by the Company of any indebtedness
not secured by a Lien or the issuance by the Company of any debentures,
notes or other evidences of indebtedness not secured by a Lien, whether in
the ordinary course of business or otherwise.
41
6.2. Consolidations, Mergers and Sales of Assets. Consolidate with
any other corporation or limited liability company or accept a merger of any
other corporation or limited liability company into the Company or permit the
Company to be merged into any other corporation or limited liability company, or
sell its properties and assets as, or substantially as, an entirety; provided,
however, that subject to the provisions of subsection 6.1, nothing contained in
this Agreement shall be deemed to prevent (i) the merger into the Company of
another corporation or limited liability company, (ii) the consolidation of the
Company and another corporation or limited liability company, (iii) the merger
of the Company into another corporation or limited liability company or (iv) the
sale of the property or assets of the Company to another corporation or limited
liability company, so long as (a) no Default or Event or Default shall have
occurred and be continuing and (b) with respect to clauses (ii), (iii) and (iv)
above, the surviving corporation or limited liability company of the merger or
the purchaser of the Company's assets, as the case may be, shall expressly
assume the obligations of the Company under this Agreement and expressly agree
to be bound by all other provisions applicable to the Company under this
Agreement.
6.3. Net Worth. Permit Net Worth at any time to be less than
$4,000,000,000.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Company shall (i) fail to pay any principal of any Loan when
due in accordance with the terms hereof; (ii) fail to pay any interest on
any Loan, any Utilization Fee or any Facility Fee within five Business
Days after any such interest or fee becomes due in accordance with the
terms hereof; or (iii) fail to pay any expenses or other amounts payable
under this Agreement to the Administrative Agent or any Bank within
fifteen days after such expenses or other amounts become due in accordance
with the terms hereof; or
(b) Any representation or warranty made or deemed made by the
Company herein or which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection
with this Agreement shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Company shall default in the observance or performance of
any agreement contained in Section 6; or
(d) The Company shall default in the observance or performance of
any other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days after notice shall have been
given to the Company by the Administrative Agent; or
(e) Any event or condition shall occur which results in the
acceleration of the maturity of any Indebtedness of the Company or any of
its Significant Subsidiaries in an aggregate principal amount equal to or
greater than $100,000,000; or the Company or any
42
of its Significant Subsidiaries shall not make any liquidation or
termination payment or payments in an aggregate amount equal to or greater
than $100,000,000 when it becomes due (any applicable grace period having
expired) under one or more Hedging Agreements; or the Company or any of
its Significant Subsidiaries shall not pay the principal of or interest on
any Indebtedness with respect to Indebtedness in an aggregate principal
amount in excess of $100,000,000 when it becomes due and beyond any period
of grace with respect thereto; or
(f) (i) The Company or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or the Company or
any of its Significant Subsidiaries shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced against the
Company or any of its Significant Subsidiaries any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against the Company
or any of its Significant Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) the Company or any of its Significant
Subsidiaries shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the Company or any of its
Significant Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due;
or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan,
(iii) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is likely
to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title
IV of ERISA, (v) the Company or any Commonly Controlled Entity shall incur
any liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist, with respect to a Plan; and in each case
in clauses (i) through (vi) above, such event or condition, together with
all other such events or conditions, if any, could reasonably be expected
to result in a violation of subsection 6.3; or
43
(h) One or more judgments or decrees shall be entered against the
Company or any of its Significant Subsidiaries involving in the aggregate
a liability (not paid or fully covered by insurance) of $100,000,000 or
more and such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 90 days from the entry
thereof; or
(i) If at any time the Company and its Significant Subsidiaries
shall become liable for remediation and/or environmental compliance
expenses and/or fines, penalties or other charges which, in the aggregate,
could reasonably be expected to result in a violation of subsection 6.3;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Company,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement shall immediately become due and payable, and (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 Required Banks, the Administrative Agent may, or
upon the request of the Required Banks the Administrative Agent shall, by notice
to the Company declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Banks, the Administrative Agent may, or upon the request of the
Required Banks the Administrative Agent shall, by notice of default to the
Company, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement to be due and payable forthwith,
whereupon the same shall immediately become due and payable. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
SECTION 8. THE AGENTS
8.1. Appointment. Each Bank hereby designates and appoints JPMorgan
Chase Bank as the Administrative Agent of such Bank under this Agreement, and
each such Bank authorizes JPMorgan Chase Bank as the Administrative Agent to
take such action on its behalf under the provisions of this Agreement and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent. The Joint Lead
Arrangers, the Syndication Agents and the Documentation Agent, in their
respective capacities as such, shall not have any duties or responsibilities
hereunder nor any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Joint Lead Arrangers,
the Syndication Agents or the Documentation Agent in their respective capacities
as such.
44
8.2. Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
8.3. Exculpatory Provisions. Neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement (except
for its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
for any failure of the Company to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Company.
8.4. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
the Bank specified in the Register with respect to any amount owing hereunder as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement unless it shall first receive such
advice or concurrence of the Required Banks as it deems appropriate and it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
in accordance with a request of the Required Banks, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Banks and all future holders of the obligations owing by the Company hereunder.
8.5. Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Bank or the
Company referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Banks. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Banks; provided that unless and until the Administrative Agent
shall have received such
45
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Banks.
8.6. Non-Reliance on Administrative Agent and Other Banks. Each Bank
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Company,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Bank. Each Bank represents to the Administrative
Agent that 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 appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also represents that 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 analysis, appraisals and decisions
in taking or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Company. Except for notices, reports and other documents expressly required to
be furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Company which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
8.7. Indemnification. The Banks agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Company and without limiting the obligation of the Company to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitment shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with their Commitment Percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans and all other amounts owing hereunder) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any documents contemplated by or
referred to herein or the transactions contemplated hereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; provided that no Bank shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
46
8.8. Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Company as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to its Loans made or renewed by it, the Administrative Agent shall have the same
rights and powers under this Agreement as any Bank and may exercise the same as
though it were not the Administrative Agent, and the terms "Bank" and "Banks"
shall include the Administrative Agent in its individual capacity.
8.9. Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon thirty days' notice to the Banks, and may be
removed at any time with or without cause by the Required Banks. Upon any
resignation or removal of the Administrative Agent, the Required Banks shall
appoint from among the Banks a successor Administrative Agent for the Banks,
which successor Administrative Agent shall be approved by the Company. If no
successor Administrative Agent shall have been so approved by the Company and
shall have accepted such appointment within thirty days after the resignation of
the Administrative Agent, then in place or the Required Banks' removal of the
retiring Administrative Agent, such retiring Administrative Agent may, on behalf
of the Banks, appoint a successor Administrative Agent (which shall be a
commercial bank or trust company organized or licensed under the laws of the
United States or any state thereof) which appointment shall be subject to the
approval of the Company such approval not to be unreasonably withheld. Upon the
acceptance of any appointment as Administrative Agent hereunder, such successor
Administrative Agent shall succeed to the rights, powers and duties of the
Administrative Agent and the term "Administrative Agent" shall mean such
successor agent effective upon its appointment, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of
the obligations owing hereunder. After any retiring Administrative Agent's
resignation or removal as Administrative Agent, the provisions of this
subsection shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
SECTION 9. MISCELLANEOUS
9.1. Amendments and Waivers. Neither this Agreement, nor any terms
hereof or thereof may be amended, supplemented or modified except in accordance
with the provisions of this subsection. With the written consent of the Required
Banks, the Administrative Agent and the Company may, from time to time, enter
into written amendments, supplements or modifications hereto for the purpose of
adding any provisions to this Agreement or adding any financial institution
(other than as provided for herein) as a Bank hereunder (thereby increasing the
Aggregate Commitment) or changing in any manner the rights of the Banks or of
the Company hereunder or thereunder or waiving, on such terms and conditions as
the Administrative Agent may specify in such instrument, any of the requirements
of this Agreement or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (a) reduce the amount or extend the maturity of any Loan or
any installment thereof, or reduce the rate of interest (other than default
interest rates) thereon or extend the time of payment of interest or fees
thereon, or reduce any fee
47
payable to any Bank hereunder, or change the amount of any Bank's Commitment, in
each case without the written consent of the Bank affected thereby, or (b)
amend, modify or waive any provision of subsection 2.7, subsection 2.1(c) or
this subsection 9.1, amend the definition of Required Banks or consent to the
assignment or transfer by the Company of any of its rights and obligations under
this Agreement (other than as set forth in subsection 6.2), in each case without
the written consent of all the Banks or (c) amend, modify or waive any provision
of Section 8 or any reference to the Administrative Agent, the Syndication
Agents or the Documentation Agent in any other provision of this Agreement which
alters the duties or obligations of the Administrative Agent, the Syndication
Agents or the Documentation Agent without the written consent of the then
Administrative Agent, the Syndication Agents or the Documentation Agent, as the
case may be. Nothing in this subsection 9.1 shall prevent or prohibit the
Administrative Agent, the Company or any Bank from taking any action in
accordance with subsection 2.1(c), 2.7, 2.21, 2.23 or 2.24 notwithstanding
anything contained in this subsection 9.1 to the contrary, including, without
limitation (i) allowing the Administrative Agent to increase the Aggregate
Commitment, (ii) allowing any Bank to increase its Commitment and allowing the
execution and delivery of any Commitment Increase Supplement, (iii) allowing an
Other Bank to become an Additional Bank and allowing the execution and delivery
of an Additional Bank Agreement, (iv) allowing a Non-Extending Bank to transfer
its rights and obligations hereunder to a Continuing Bank, (v) allowing a
Notifying Bank to transfer its rights and obligations to a Replacement Bank, or
(vi) the modification, amendment or supplement of this Agreement (including,
without limitation, Schedule I), in each case solely in accordance with, or upon
a transfer by a Bank of its rights and obligations hereunder pursuant to, the
applicable provisions of subsection 2.1(c), 2.7, 2.21, 2.23 or 2.24. Any such
waiver and any such amendment, supplement or modification shall apply equally to
each of the Banks and shall be binding upon the Company, the Banks, the Agents
and all future holders of the obligations owing hereunder. In the case of any
waiver, the Company, the Banks and the Agents shall be restored to their former
position and rights hereunder, and any Default or Event of Default waived shall
be deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
9.2. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy, telegraph or telex), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or three
days after being deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, or, in the case of telegraphic notice, when
delivered to the telegraph company, or, in the case of telex notice, when sent,
answerback received, addressed, in the case of the Company and the
Administrative Agent, as follows, and as set forth on Schedule I in the case of
the other parties hereto, or to such other address as may be hereafter notified
by the respective parties hereto and any future holders of the obligations owing
hereunder:
The Administrative Agent: JPMorgan Chase Bank Agency Services Group
1111 Fannin - 10th Floor
Houston, Texas 77002
Attention: Eleanor Fiore
Telecopy: (713) 750-2223
48
The Company: CIT Group Inc.
1 CIT Drive
Livingston, New Jersey 07039
Attention: Executive Vice President and Treasurer
Telecopy: (973) 535-3761
with a copy to:
CIT Group Inc.
1 CIT Drive
Livingston, New Jersey 07039
Attention: General Counsel
Telecopy: (973) 740-5148
Notices and other communications to the Banks hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Section 2 or subsection 8.5 unless otherwise agreed
by the Administrative Agent and the applicable Bank. The Administrative Agent or
the Company may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
9.3. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4. Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans hereunder.
9.5. Payment of Expenses and Taxes. The Company agrees (a) to pay or
reimburse the Administrative Agent for all of its reasonable out-of-pocket costs
and expenses incurred in connection with the preparation and execution of, and
any amendment, supplement or modification to, this Agreement and any other
documents prepared in connection herewith (including, without limitation, any
Commitment Increase Supplement or Additional Bank Agreement pursuant to
subsection 2.1), including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay or reimburse
each Bank and the Agents for all its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement and any such other documents prepared in connection herewith,
including, without limitation, reasonable fees and disbursements (including the
allocated costs and expenses of in-house counsel) of counsel to the
Administrative Agent and
49
to the several Banks, (c) to pay, indemnify, and hold each Bank and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this Agreement
and any such other documents prepared in connection herewith, and (d) to pay,
indemnify, and hold each Bank and the Administrative Agent, and each of their
respective Affiliates, officers, directors and employees, harmless from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including reasonable legal fees and expenses), with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, any Loan (including the use of proceeds thereof) and any such other
documents prepared in connection herewith (all the foregoing, collectively, the
"indemnified liabilities"), provided, that the Company shall have no obligation
hereunder to any Administrative Agent or any Bank with respect to indemnified
liabilities arising from (i) the gross negligence or willful misconduct of such
Administrative Agent or such Bank, (ii) legal proceedings commenced against any
Administrative Agent or any Bank by any security holder or creditor thereof
arising out of and based upon rights afforded any such security holder or
creditor solely in its capacity as such, or (iii) legal proceedings commenced
against any Agent or any Bank by any other Bank or by any Transferee. The
agreements in this subsection shall survive repayment of the Loans and all other
amounts payable hereunder.
9.6. Successors and Assigns; Participations; Purchasing Banks. (a)
This Agreement shall be binding upon and inure to the benefit of the Company,
the Administrative Agent, the Banks, all future holders of the obligations owing
hereunder and their respective successors and assigns, except that the Company
may not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Bank (except as provided in subsection
6.2).
(b) Any Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in any Loan owing
to such Bank, any Commitment of such Bank or any other interest of such
Bank hereunder. In the event of any such sale by a Bank of participating
interests to the Participant, such Bank's obligations under this Agreement
to the other parties to this Agreement shall remain unchanged, such Bank
shall remain solely responsible for the performance thereof, such Bank
shall remain the holder of any obligation owing to it hereunder for all
purposes under this Agreement, and the Company and the Administrative
Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement;
provided, that such Bank shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver of
any provision of the Credit Agreement other than, as may be agreed to by
such Bank and Participant, any amendment, modification or waiver with
respect to any Loan or Commitment in which such Participant has an
interest which forgives principal, interest or fees or reduces the
interest rate or fees payable with respect to any such Loan or Commitment
or postpones any date fixed for any regularly-scheduled payment of
principal of, or interest or fees on, any such Loan or Commitment.
50
The Company agrees that if amounts outstanding under this Agreement are
due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall
be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if
the amount of its participating interest were owing directly to it as a
Bank under this Agreement. The Company also agrees that each Participant
shall be entitled to the benefits of subsections 2.18, 2.19, 2.20 and 9.5
with respect to its participation in the Commitment and the Loans
outstanding from time to time; provided, that no Participant shall be
entitled to receive any greater amount pursuant to such subsections than
the transferor Bank would have been entitled to receive in respect of the
amount of the participation transferred by the transferor Bank to such
Participant had no such transfer occurred.
(c) Any Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell, to any Bank or any
Affiliate thereof and, unless an Event of Default has occurred and is
continuing, with the consent of the Company and the Administrative Agent
(which consents shall not be unreasonably withheld or delayed), to one or
more additional banks or financial institutions ("Purchasing Banks") all
or any part of its rights and obligations under this Agreement pursuant to
a Commitment Transfer Supplement, substantially in the form of Exhibit C
(a "Commitment Transfer Supplement"), executed by such Purchasing Bank and
such transferor Bank (and, in the case of a Purchasing Bank that is not
then a Bank or an Affiliate thereof, by the Company and the Administrative
Agent) and delivered to the Administrative Agent for its acceptance and
recording in the Register. Each such assignment shall be in a minimum
amount of $5,000,000 (other than in the case of an assignment of all of a
Bank's interests under this Agreement) and the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance, a Commitment Transfer Supplement, and the transferor Bank or
the Purchasing Bank, as agreed between them, shall deliver to the
Administrative Agent a processing and recordation fee of $3,500. After
giving effect to any such assignment (other than an assignment of all of a
Bank's interests under this Agreement), the assigning Bank (together with
any Bank which is an Affiliate of such assigning Bank) shall retain
Revolving Credit Loans and/or Commitments aggregating not less than
$15,000,000. Upon such execution, delivery, acceptance and recording, from
and after the Transfer Effective Date determined pursuant to such
Commitment Transfer Supplement (the "Transfer Effective Date"), (x) the
Purchasing Bank thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and
obligations of a Bank hereunder with a Commitment as set forth therein,
and (y) the transferor Bank thereunder shall, to the extent provided in
such Commitment Transfer Supplement, be released from its obligations
under this Agreement (and, in the case of a Commitment Transfer Supplement
covering all or the remaining portion of a transferor Bank's rights and
obligations under this Agreement, such transferor Bank shall cease to be a
party hereto). Such Commitment Transfer Supplement shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Bank and the resulting adjustment
of Commitment Percentages arising from the purchase by such Purchasing
Bank of all or a portion of the rights and obligations of such transferor
Bank under this Agreement. Notwithstanding any provision of this
subsection 9.6, the consent of the
51
Company shall not be required for any assignment which occurs at any time
when any of the events described in Section 7(f) shall have occurred and
be continuing.
(d) The Administrative Agent shall maintain at its address referred
to in subsection 9.2 a copy of each Commitment Transfer Supplement
delivered to it and a register (the "Register") for the recordation of the
names and addresses of the Banks and the Commitment of, and principal
amount of the Loans owing to, each Bank from time to time. The entries in
the Register shall constitute prima facie evidence of the items contained
therein, and the Company, the Administrative Agent and the Banks shall
treat each Person whose name is recorded in the Register as the owner of
the Loan recorded therein for all purposes of this Agreement. The Register
shall be available for inspection by the Company or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by
a transferor Bank and Purchasing Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an Affiliate thereof, by the Company and
the Administrative Agent), the Administrative Agent shall (i) promptly
accept such Commitment Transfer Supplement and (ii) on the Transfer
Effective Date determined pursuant thereto record the information
contained therein in the Register and give notice of such acceptance and
recordation to the Banks and the Company.
(f) If, pursuant to this subsection, any interest in this Agreement
is transferred to any Participant or Assignee (each, a "Transferee") which
is organized under the laws of any jurisdiction other than the United
States or any state thereof, the transferor Bank shall cause such
Transferee, concurrently with the effectiveness of such transfer, (i) to
represent to the transferor Bank (for the benefit of the transferor Bank
and the Company) that under applicable law and treaties no taxes will be
required to be withheld by the Company or the transferor Bank with respect
to any payments to be made to such Transferee in respect of the Loans
(except to the extent that such Transferee's assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from
the Company with respect to Taxes pursuant to subsection 2.19(a)) and (ii)
to furnish to the transferor Bank (and, in the case of any Assignee, to
the Company) the forms and certificates required to be delivered pursuant
to subsection 2.19(b).
(g) Nothing herein shall prohibit any Bank from pledging or
assigning all or any portion of its Loans to any Federal Reserve Bank in
accordance with applicable law.
9.7. Dissemination of Information; Confidentiality. (a) The Company
authorizes each Bank to disclose to any Participant or Purchasing Bank or any
other Person acquiring an interest in this Agreement by operation of law, or
(with the consent of the Company; provided that such consent shall not be
unreasonably withheld and shall not be required for any disclosure which occurs
at any time when any of the events described in Section 7(f) shall have occurred
and be continuing) any contractual counterparty to any swap, hedge,
securitization or other derivative transaction entered into by such Bank in
connection with this Agreement (each a "Transferee") and any prospective
Transferee any and all information in such Bank's possession concerning the
creditworthiness of the Company and its Subsidiaries,
52
provided that such Transferee or prospective Transferee agrees to be bound by
this subsection 9.7 with respect to such information as though such Transferee
or prospective Transferee were a Bank hereunder.
(b) Each Bank and each Transferee that receives information which is
not publicly available and which has been identified by the Company as
confidential ("Proprietary Information") will be bound to treat such
Proprietary Information in a confidential manner and to use such
Proprietary Information only for the purpose of evaluating and monitoring
the creditworthiness of the Company and its Subsidiaries in connection
with such Bank's or such Transferee's extensions of credit pursuant to
this Agreement or such Bank's or Transferee's other agreements with the
Company, or as otherwise may be required by law, regulation or court
order; provided, that if any Bank or Transferee shall be required to
disclose any Proprietary Information by a court order (i) such Bank or
Transferee shall, unless prohibited by applicable law, applicable
regulation or the terms of the applicable court order, communicate such
fact to the Administrative Agent and the Administrative Agent shall
communicate such fact to the Company and (ii) such Bank or Transferee
shall disclose only such Proprietary Information which it is requested to
disclose or advised by counsel to disclose; provided, further, that any
Bank or Transferee may disclose such information which it is requested to
disclose or is advised by counsel to disclose to an auditor, examiner or
regulator if it has advised such auditor, examiner or regulator that such
information is confidential; provided, further, that any Bank or
Transferee may disclose Proprietary Information (A) to Affiliates of such
Bank or Transferee provided that such Affiliates agree to keep the
Proprietary Information confidential as set forth herein, (B) with the
written consent of the Company, (C) in connection with any litigation
involving the Company and such Bank or Transferee, (D) to legal counsel to
such Bank or Transferee if it advises such legal counsel that such
information is confidential, (E) if such Proprietary Information was in
the possession of such Bank or Transferee on a non-confidential basis
prior to the Company furnishing it to such Bank or Transferee as shown by
clear and convincing evidence, or (F) if such Proprietary Information is
received by such Bank or Transferee, without restriction as to its
disclosure or use, from a Person who, to such Bank's or Transferee's
knowledge or reasonable belief, was not prohibited from disclosing it by
any duty of confidentiality.
9.8. Adjustments. (a) If any Bank (a "benefitted Bank") shall at any
time receive any payment of all or part of its Loans, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 7(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Bank, if any, in respect of such other Bank's
Loans, or interest thereon, such benefitted Bank shall purchase for cash from
the other Banks such portion of each such other Bank's Loan, or shall provide
such other Banks with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Bank to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Banks; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Bank, such purchase shall
be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest. Notwithstanding anything contained in this
Agreement to the contrary, this subsection 9.8 shall
53
only be applicable to (i) payments received by a Bank in respect of the
obligations of the Company under this Agreement and (ii) collateral received
from the Company, if any, to secure obligations of the Company under this
Agreement.
(b) In addition to any rights and remedies of the Banks provided by
law, upon (i) the occurrence and during the continuance of an Event of
Default, and (ii) the declaration by the Administrative Agent that the
Loans are immediately due and payable pursuant to the last paragraph of
Section 7, or the occurrence and continuance of an Event of Default
specified in clause (i) or (ii) of paragraph (f) of Section 7, each Bank
shall have the right, without prior notice to the Company, any such notice
being expressly waived by the Company to the extent permitted by
applicable law (but without waiving any notices specified in Section 7),
upon any amount becoming due and payable by the Company hereunder (whether
at the stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case
whether matured or unmatured, at any time held or owing by such Bank or
any branch or agency thereof to or for the credit or the account of the
Company. Each Bank agrees promptly to notify the Company and the
Administrative Agent after any such set-off and application made by such
Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
9.9. Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent.
9.10. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.11. Integration. This Agreement represents the agreement of the
Company, the Agents and the Banks with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Company, the Agents or any Bank relative to subject matter hereof not expressly
set forth or referred to herein other than any agreements referred to in
subsection 2.5(b).
9.12. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.13. Submission To Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
54
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, 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 for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts 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;
(c) 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
Company at its address set forth in subsection 9.2 or at such other
address of which the Bank shall have been notified pursuant thereto; and
(d) 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.
9.14. WAIVERS OF JURY TRIAL. THE COMPANY, THE AGENTS AND THE BANKS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.15. USA PATRIOT Act. Each Bank hereby notifies the Company that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies the Company, which information
includes the name and address of the Company and other information that will
allow such Bank to identify the Company in accordance with the Act.
Signature page to the 364-Day Credit Agreement, dated as of April
14, 2004 among CIT Group Inc., the banks parties thereto, J.P. Morgan Securities
Inc. and Banc of America Securities LLC, as Joint Lead Arrangers, Bank of
America, N.A. and Citibank, NA, as Syndication Agents, Barclays Bank PLC, as
Documentation Agent and JPMorgan Chase Bank, as Administrative Agent.
CIT GROUP INC.
By: _________________
Name:
Title:
Signature page to the 364-Day Credit Agreement, dated as of April
14, 2004 among CIT Group Inc., the banks parties thereto, J.P. Morgan Securities
Inc. and Banc of America Securities LLC, as Joint Lead Arrangers, Bank of
America, N.A., and Citibank, N.A., as Syndication Agents, Barclays Bank PLC, as
Documentation Agent and JPMorgan Chase Bank, as Administrative Agent.
JPMORGAN CHASE BANK, as
Administrative Agent and as a Bank
By: ___________________
Name:
Title:
J.P. MORGAN SECURITIES INC., as Joint
Lead Arranger
By: ___________________
Name:
Title:
Signature page to the 364-Day Credit Agreement, dated as of April
14, 2004 among CIT Group Inc., the banks parties thereto, J.P. Morgan Securities
Inc. and Banc of America Securities LLC, as Joint Lead Arrangers, Bank of
America, N.A., and Citibank, N.A., as Syndication Agents, Barclays Bank PLC, as
Documentation Agent and JPMorgan Chase Bank, as Administrative Agent.
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arranger
By: _____________________________
Name:
Title:
BANK OF AMERICA, N.A., as Syndication
Agent and as a Bank
By: ___________________
Name:
Title:
Signature page to the 364-Day Credit Agreement, dated as of April
14, 2004 among CIT Group Inc., the banks parties thereto, J.P. Morgan Securities
Inc. and Citigroup Global Markets Inc., as Joint Lead Arrangers, Citibank, N.A.
and Bank of America, N.A., as Syndication Agents, Barclays Bank PLC, as
Documentation Agent and JPMorgan Chase Bank, as Administrative Agent.
CITIBANK, N.A., as Syndication Agent
By: ___________________
Name:
Title:
Signature page to the 364-Day Credit Agreement, dated as of April
14, 2004 among CIT Group Inc., the banks parties thereto, J.P. Morgan Securities
Inc. and Banc of America Securities LLC, as Joint Lead Arrangers, Citibank, N.A.
and Bank of America, N.A., as Syndication Agents, Barclays Bank PLC, as
Documentation Agent and JPMorgan Chase Bank, as Administrative Agent.
BARCLAYS BANK PLC, as Documentation
Agent and as a Bank
By: ___________________
Name:
Title:
Signature page to the 364-Day Credit Agreement, dated as of April
14, 2004 among CIT Group Inc., the banks parties thereto, J.P. Morgan Securities
Inc. and Banc of America Securities LLC, as Joint Lead Arrangers, Citibank, N.A.
and Bank of America, N.A., as Syndication Agents, Barclays Bank PLC, as
Documentation Agent and JPMorgan Chase Bank, as Administrative Agent.
Name of Bank:
By: ___________________
Name:
Title: