Exhibit 4.3
Execution Copy
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CIT GROUP INC.
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$2,100,000,000
5-YEAR CREDIT AGREEMENT
Dated as of April 14, 2004
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J.P. MORGAN SECURITIES INC., as Joint Lead Arranger and Bookrunner
CITIGROUP GLOBAL MARKETS INC., 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..................................13
2.1. Commitments.................................................13
2.2. Revolving Credit Borrowing Procedure........................15
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. Termination or Reduction of Commitments.....................19
2.8. Optional Prepayments of Revolving Credit Loans..............19
2.9. Conversion and Continuation Options.........................19
2.10. Applicable Interest Rate Margins, Facility Fee
Rate and Utilization Fee..................................20
2.11. Minimum Amounts of Tranches.................................20
2.12. Interest Rates and Payment Dates............................21
2.13. Computation of Interest and Fees............................21
2.14. Inability to Determine Interest Rate........................22
2.15. Pro Rata Treatment and Payments.............................22
2.16. Illegality..................................................23
2.17. Requirements of Law.........................................23
2.18. Taxes.......................................................25
2.19. Indemnity...................................................27
2.20. Actions of Banks............................................28
2.21. Lending Installations.......................................28
2.22. Removal of Banks............................................28
2.23. Replacement of Banks........................................29
SECTION 3. LETTERS OF CREDIT................................................29
3.1. L/C Commitment..............................................29
3.2. Procedure for Issuance of Letter of Credit..................30
3.3. Fees and Other Charges......................................30
3.4. L/C Participations..........................................30
3.5. Reimbursement Obligation of the Company.....................31
3.6. Obligations Absolute........................................31
3.7. Letter of Credit Payments...................................32
3.8. Applications................................................32
3.9. Cash-Collateralization......................................32
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SECTION 4. REPRESENTATIONS AND WARRANTIES...................................33
4.1. Financial Condition.........................................33
4.2. No Change...................................................33
4.3. Corporate Existence; Compliance with Law;
Significant Subsidiaries..................................33
4.4. Corporate Power; Authorization; Enforceable Obligations.....33
4.5. No Legal Bar................................................33
4.6. No Material Litigation......................................34
4.7. No Default..................................................34
4.8. Aggregation of the Representations and Warranties
Relating to Net Worth.....................................34
4.9. Federal Regulations.........................................34
4.10. ERISA.......................................................34
4.11. Investment Company Act......................................34
4.12. Purpose of Loans............................................34
SECTION 5. CONDITIONS PRECEDENT.............................................35
5.1. Conditions to Initial Loans.................................35
5.2. Conditions to Each Loan.....................................36
SECTION 6. AFFIRMATIVE COVENANTS............................................36
6.1. Financial Statements........................................36
6.2. Payment of Obligations......................................38
6.3. Conduct of Business and Maintenance of Existence............38
6.4. Notices.....................................................38
6.5. Status of Obligations.......................................39
6.6. Maintenance of Property.....................................39
6.7. Payment of Taxes............................................39
6.8. Use of Proceeds.............................................39
SECTION 7. NEGATIVE COVENANTS...............................................40
7.1. Negative Pledge.............................................40
7.2. Consolidations, Mergers and Sales of Assets.................42
7.3. Net Worth...................................................42
SECTION 8. EVENTS OF DEFAULT................................................43
SECTION 9. THE AGENTS.......................................................45
9.1. Appointment.................................................45
9.2. Delegation of Duties........................................45
9.3. Exculpatory Provisions......................................45
9.4. Reliance by Administrative Agent............................46
9.5. Notice of Default...........................................46
9.6. Non-Reliance on Administrative Agent and Other Banks........46
9.7. Indemnification.............................................47
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9.8. Administrative Agent in Its Individual Capacity.............47
9.9. Successor Administrative Agent..............................47
SECTION 10. MISCELLANEOUS...................................................48
10.1. Amendments and Waivers......................................48
10.2. Notices.....................................................49
10.3. No Waiver; Cumulative Remedies..............................50
10.4. Survival of Representations and Warranties..................50
10.5. Payment of Expenses and Taxes...............................50
10.6. Successors and Assigns; Participations; Purchasing Banks....51
10.7. Dissemination of Information; Confidentiality...............53
10.8. Adjustments.................................................54
10.9. Counterparts................................................54
10.10. Severability................................................55
10.11. Integration.................................................55
10.12. GOVERNING LAW...............................................55
10.13. Submission To Jurisdiction; Waivers.........................55
10.14. WAIVERS OF JURY TRIAL.......................................55
10.15. USA PATRIOT Act.............................................55
SCHEDULES
I. Commitments and Bank Information
II. List of Significant Subsidiaries
III. Existing Letters of Credit
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
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5-YEAR 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 CITIGROUP GLOBAL MARKETS INC., acting
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 and L/C Obligations then outstanding.
"Aggregate Commitment": the aggregate amount of the Banks'
Commitments.
"Agreement": this 5-Year Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
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"Agreement Accounting Principles": GAAP applied in a manner
consistent with those principles used in the preparation of the financial
statements referred to in subsection 4.1.
"Applicable Eurodollar Margin": as defined in subsection 2.10.
"Applicable Facility Fee Rate": as defined in subsection 2.10.
"Applicable Margin": as defined in subsection 2.10.
"Applicable Rate": as defined in subsection 2.10.
"Applicable Utilization Fee Rate": as defined in subsection 2.10.
"Application": an application, in such form as the Issuing Bank may
reasonably specify from time to time, requesting the Issuing Bank to open a
Letter of Credit.
"Banks": as defined in the preamble hereto and any Person becoming
party hereto as a lender pursuant to Section 10.6(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.
"Cash Collateral Account": is defined in subsection 3.9.
"Citibank": Citibank, N.A.
"Closing Date": the date on which the conditions precedent set forth
in subsection 5.1 are 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 and to acquire participations in Letters
of Credit hereunder 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 2.7.
"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 sum of the aggregate principal amount of such
Bank's Loans then outstanding and the aggregate of such Bank's participations in
L/C Obligations then outstanding that are not cash-collateralized pursuant to
subsection 3.9 to (y) the sum of the aggregate principal amount of the Loans
then outstanding and the aggregate L/C Obligations then outstanding that are not
cash-collateralized pursuant to subsection 3.9.
"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 10.6(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.
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"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.
"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.
"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 8, 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.
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"Eurodollar Competitive Bid Borrowing": a Borrowing comprised of
Eurodollar Competitive Bid Loans.
"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 8,
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 Agreement": the 364-Day Credit Agreement, dated as
of October 10, 2003, among the Company, the banks parties thereto, BofA, N.A.
and Citibank, as syndication agents, Barclays Bank PLC, 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
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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.
"Existing Letters of Credit": the Letters of Credit described in
Schedule III.
"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 and the Termination 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
7
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 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.
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"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, 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
Termination Date shall end on the Termination 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.
"Issuing Bank": JPMorgan Chase Bank or any affiliate thereof
reasonably acceptable to the Company, in its capacity as issuer of any Letter of
Credit.
"Joint Lead Arrangers": as defined in the preamble hereto.
"JPMorgan Chase Bank": as defined in the preamble hereto.
"L/C Commitment": $400,000,000.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to subsection 3.5.
9
"L/C Participants": the collective reference to all the Banks other
than the Issuing Bank.
"Lending Installation": any branch or office of any Bank selected by
such Bank to be a Lending Installation in accordance with subsection 2.21.
"Letters of Credit": as defined in subsection 3.1(a).
"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.
"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.
"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 364-Day Credit Agreement": the 364-Day 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 Banc of America
Securities LLC, as joint lead arrangers, BofA and Citibank, as syndication
agents, Barclays, as documentation
10
agent and JPMorgan Chase Bank, as administrative agent, as amended, supplemented
or otherwise modified from time to time.
"Non-U.S. Lender": as defined in subsection 2.18(b).
"Other Bank": as defined in subsection 2.1(c)(i).
"Participant": as defined in subsection 10.6(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 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 10.6(d).
"Reimbursement Obligation": the obligation of the Company to
reimburse the Issuing Bank pursuant to subsection 3.5 for amounts drawn under
Letters of Credit.
"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 8, 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
11
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.
"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.
12
"Termination Date": April 14, 2009.
"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 10.6(c) hereto.
"Transferee": as defined in subsection 10.6(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.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revisions), International Chamber of Commerce Publication No. 500,
the International Standby Practices 1998, or the most recent version thereof or
successor thereto which shall be in effect from time to time, in each case as
amended or otherwise modified from time to time and as selected in the
applicable Letter of Credit.
"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 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.
13
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, which, when added to such Bank's Commitment Percentage
of the L/C Obligations, does not exceed 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 aggregate outstanding
amount of L/C Obligations plus (C) 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 2.9,
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 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.
14
(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 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 2.19, as applicable.
15
(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 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 10.2 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
16
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, 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
17
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.
(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 10.2.
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 Termination Date (or such earlier date on which the
Loans become due and payable pursuant to subsection 2.8 or Section 8), the
unpaid principal amount of each Revolving Credit Loan made to it by such Bank
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
18
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 2.12.
(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 10.6(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 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 10.6(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 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,
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 and L/C Obligations outstanding for the calendar quarter
preceding a Fee Payment Date
19
(or such shorter period beginning with the date hereof or ending with the
Termination Date) 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, 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 and L/C Obligations
outstanding during such calendar quarter (or shorter period), payable in arrears
on each Fee Payment Date.
2.7. 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 and L/C
Obligations then outstanding that are not cash-collateralized pursuant to
subsection 3.9 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.
2.8. 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 2.19(d). The Company shall not have the right to prepay
any Competitive Bid Loan without the consent of the Bank that made such
Competitive Bid Loan.
2.9. 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
20
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 2.11 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
Termination 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 2.11 would be
contravened or (iii) after the date that is one month prior to the Termination
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.
2.10. 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).
- ----------------------------------------------------------------------------------------------------------------
Utilization Utilization
Pricing LT Ratings ST Ratings Facility Eurodollar Fee (> Fee (>
Level S&P/Moody's S&P/Moody's Fee Rate Loan Margin 33.3%) 66.7%)
- ----------------------------------------------------------------------------------------------------------------
1 AA-/Aa3 and A-1/P-1 7.0 18.0 7.5 15.0
2 A+/A1 and A-1/P-1 9.0 21.0 7.5 15.0
3 A/A2 and A-1/P-1 10.0 25.0 7.5 15.0
4 A-/A3 N/A 11.0 29.0 12.5 25.0
5 BBB+/Baa1 N/A 12.5 37.5 12.5 25.0
6 BBB/Baa2 N/A 20.0 55.0 12.5 25.0
7 BBB-/Baa3 N/A 25.0 75.0 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.
2.11. 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.
21
2.12. 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).
(e) Interest on each Loan shall be payable in arrears on each
Interest Payment Date applicable to such Loan, the Termination Date and upon any
prepayment of such Loan, provided that interest accruing pursuant to paragraph
(d) of this subsection shall be payable on demand.
2.13. 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 2.12.
22
(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 2.14, be determined on the basis of the
quotations of the remaining Reference Banks or Reference Bank.
2.14. 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
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.
2.15. 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), 2.20, 2.22 and 2.23 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), 2.20, 2.22 and 2.23,
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
23
Administrative Agent's office specified in subsection 10.2, 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) 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.
2.16. 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 2.16.
2.17. 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
24
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, any
Letter of Credit, any Application 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 2.18 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;
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 issuing or participating in Letters of Credit 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 or under or in respect of any Letter of Credit to a level
below that which such Bank, such Lending
25
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
2.17(c) within 90 days after it 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
2.17, 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.
2.18. 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-
26
U.S. Lender (as defined in subsection 2.18(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 2.18(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 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 10.6 (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
27
Certificate. Notwithstanding anything to the contrary contained in this
subsection 2.18, the Company agrees to pay any additional amounts and to
indemnify each Non-U.S. Lender in the manner set forth in subsection 2.18(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 2.18, 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 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 2.18, 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 2.18 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.
2.19. 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
28
(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 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.
2.20. 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 2.16 or any amounts
which might otherwise be payable pursuant to subsection 2.17 or 2.18; 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 2.17 or 2.18, then the Company may remove any
such Bank pursuant to subsection 2.22 or replace any such Bank pursuant to
subsection 2.23.
2.21. 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 2.17, 2.18, 2.19 or 10.5 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.
2.22. 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,
29
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 2.17, 2.18, 2.19 and 10.5. 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 2.17, 2.18, 2.19 and 10.5.
2.23. 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 2.17 or 2.18, (b) shall cause the suspension of the availability of
any Type pursuant to subsection 2.16, (c) shall have excused itself from funding
a Loan pursuant to subsection 2.16, (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 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 2.17, 2.18, 2.19 and 10.5)
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 2.19, if any, as a result of such replacement. This subsection 2.23
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. LETTERS OF CREDIT
3.1. L/C Commitment. (a) Prior to the date hereof, the Issuing Bank
has issued the Existing Letters of Credit; and subject to the terms and
conditions hereof, the Issuing Bank, in reliance on the agreements of the other
Banks set forth in subsection 3.4(a), agrees to issue letters of credit after
the date hereof (the Existing Letters of Credit, together with any letters of
credit issued hereunder after the date hereof, "Letters of Credit") for the
account of the Company on any Business Day during the Commitment Period in such
form as may be approved from time to time by the Issuing Bank; provided that the
Issuing Bank shall not issue any Letter of Credit if, after giving effect to
such issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii)
the sum of (A) the outstanding aggregate principal amount of all Revolving
Credit Loans made by all Banks, plus (B) the aggregate outstanding amount of L/C
Obligations plus (C) the outstanding aggregate principal amount of all
Competitive Bid Loans made by all Banks, would exceed the Aggregate Commitment.
Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no
later than the earlier of (x) the first anniversary of its date of issuance and
(y) the date that is five Business Days prior to the Termination Date,
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provided that any Letter of Credit with a one-year term may provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above). From and after the date
hereof, all Existing Letters of Credit shall constitute Letters of Credit for
all purposes of the Agreement.
(b) The Issuing Bank shall not at any time be obligated to issue any
Letter of Credit if such issuance would conflict with, or cause the Issuing Bank
or any L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.
3.2. Procedure for Issuance of Letter of Credit. The Company may
from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the reasonable satisfaction of the Issuing
Bank, and such other certificates, documents and other papers and information as
the Issuing Bank may reasonably request. Upon receipt of any Application, the
Issuing Bank will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Bank be required to
issue any Letter of Credit earlier than three Business Days after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed to by the
Issuing Bank and the Company. The Issuing Bank shall furnish a copy of such
Letter of Credit to the Company promptly following the issuance thereof. The
Issuing Bank shall promptly furnish to the Administrative Agent, which shall in
turn promptly furnish to the Banks, notice of the issuance of each Letter of
Credit (including the amount thereof).
3.3. Fees and Other Charges. (a) The Company will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the Applicable Margin
then in effect with respect to Eurodollar Loans plus 0.20%, shared ratably among
the Banks and payable quarterly in arrears on each Fee Payment Date after the
issuance date.
(b) In addition to the foregoing fees, the Company shall pay or
reimburse the Issuing Bank for such normal and customary costs and expenses as
are incurred or charged by the Issuing Bank in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
3.4. L/C Participations. (a) The Issuing Bank irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing Bank
to issue Letters of Credit, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing Bank, on the
terms and conditions set forth below, for such L/C Participant's own account and
risk an undivided interest equal to such L/C Participant's Commitment Percentage
in the Issuing Bank's obligations and rights under and in respect of each Letter
of Credit and the amount of each draft paid by the Issuing Bank thereunder. Each
L/C Participant unconditionally and irrevocably agrees with the Issuing Bank
that, if a draft is paid under any Letter of Credit for which the Issuing Bank
is not reimbursed in full by the Company in accordance with the terms of this
Agreement, such
31
L/C Participant shall pay to the Issuing Bank upon demand at the Issuing Bank's
address for notices specified herein an amount equal to such L/C Participant's
Commitment Percentage of the amount of such draft, or any part thereof, that is
not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Bank pursuant to subsection 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit is
paid to the Issuing Bank within three Business Days after the date such payment
is due, such L/C Participant shall pay to the Issuing Bank on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to the
Issuing Bank, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to subsection
3.4(a) is not made available to the Issuing Bank by such L/C Participant within
three Business Days after the date such payment is due, the Issuing Bank shall
be entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to Base Rate Loans hereunder. A certificate of the Issuing Bank submitted to any
L/C Participant with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 3.4(a), the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Company or otherwise), or any payment of interest on account thereof,
the Issuing Bank will receive such payment as agent for and for the account of
such L/C Participant and will distribute to such L/C Participant its pro rata
share thereof; provided, however, that in the event that any such payment
received by the Issuing Bank shall be required to be returned by the Issuing
Bank, such L/C Participant shall return to the Issuing Bank the portion thereof
previously distributed by the Issuing Bank to it.
3.5. Reimbursement Obligation of the Company. If any draft is paid
under any Letter of Credit, the Company shall reimburse the Issuing Bank for the
amount of (a) the draft so paid and (b) any taxes, fees, charges or other
reasonable costs or expenses incurred by the Issuing Bank in connection with
such payment, not later than 12:00 Noon, New York City time, on the third
Business Day immediately following the day that the Company receives notice of
the date and amount of such draft. Each such payment shall be made to the
Issuing Bank at its address for notices referred to herein in Dollars and in
immediately available funds. Interest shall be payable on any such amounts from
the date on which the relevant draft is paid until payment in full (x) until the
third Business Day succeeding the date of the relevant notice, at the Base Rate
and (y) thereafter, at the rate set forth in subsection 2.12(d).
3.6. Obligations Absolute. The Company's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Company may have or have had against the Issuing Bank (except to the extent
resulting from the gross negligence or willful misconduct of such Issuing Bank),
any beneficiary of a Letter of Credit or any other Person. The Company also
agrees with the Issuing Bank that the Issuing Bank shall not be responsible for,
and the Company's Reimbursement Obligations under subsection 3.5 shall not be
affected by, among
32
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Company and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Company against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Bank
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Bank. The Company agrees that any action taken or omitted by the
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Customs and, to the extent not inconsistent therewith, the Uniform Commercial
Code of the State of New York, shall be binding on the Company and shall not
result in any liability of the Issuing Bank to the Company.
3.7. Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Bank shall promptly notify the
Company of the date and amount thereof. The responsibility of the Issuing Bank
to the Company in connection with any draft presented for payment under any
Letter of Credit shall, in addition to any payment obligation expressly provided
for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment are substantially in conformity with such Letter of Credit.
3.8. Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
3.9. Cash-Collateralization. (a) If at any time the Commitments
terminate while any Letters of Credit are outstanding, or if at any time the
Company is required by this Agreement to cash-collateralize any Letters of
Credit, the Company shall deposit in an interest-bearing cash collateral account
opened by the Administrative Agent (the "Cash Collateral Account") an amount
equal to the aggregate then undrawn and unexpired amount of such Letters of
Credit. Amounts held in the Cash Collateral Account pursuant to this Agreement
shall be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit and other related obligations arising under this
Agreement with respect to L/C Obligations. Upon the expiration, cancellation or
other termination of any Letter of Credit, the Administrative Agent shall remit
to the Company an amount equal to the difference between (i) the amount on
deposit in the Cash Collateral Account at such time, and (ii) an amount equal to
the L/C Obligations then outstanding. Following the expiration, cancellation or
other termination of the final outstanding Letter of Credit, the funds remaining
in the Cash Collateral Account, if any, shall be returned to the Company (or
such other Person as may be lawfully entitled thereto).
33
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make the
Loans and issue or participate in the Letters of Credit hereunder, the Company
hereby represents and warrants to the Administrative Agent and each Bank that:
4.1. 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).
4.2. 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.
4.3. 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.
4.4. 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 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).
4.5. No Legal Bar. The execution, delivery and performance of this
Agreement, the issuance of Letters of Credit, 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
34
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.
4.6. 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 7.3,
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.
4.7. 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 7.3.
(b) No Default or Event of Default has occurred and is continuing.
4.8. Aggregation of the Representations and Warranties Relating to
Net Worth. The total effect of each event or circumstance referred to in
subsections 4.6(b) and 4.7(a) is not, when taken together in the aggregate,
reasonably expected to result in a violation of subsection 7.3.
4.9. 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 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.
4.10. 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 7.3.
4.11. Investment Company Act. The Company is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
4.12. Purpose of Loans. The proceeds of the Loans shall be used by
the Company for general corporate purposes and to repay outstanding
Indebtedness.
35
SECTION 5. CONDITIONS PRECEDENT
5.1. Conditions to Initial Loans. The agreement of each Bank to make
the initial Loan requested to be made by it (and of the Issuing Bank to issue
the initial Letter of Credit, if earlier) 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.
(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.
36
(i) New 364-Day Credit Agreement. The New 364-Day Credit Agreement
shall have been duly executed and delivered to JPMorgan Chase Bank, as
administrative agent under the New 364-Day Credit Agreement.
5.2. Conditions to Each Loan. The agreement of each Bank to make any
Loan, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, requested to it on any date (including, without limitation, its initial
Loan and the initial Letter of Credit) 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 4 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 4.2.
(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 and Letters
of Credit 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, and issuance of a Letter of Credit on behalf of,
the Company hereunder shall constitute a representation and warranty by the
Company as of the date of such Loan, or Letter of Credit, that the conditions
contained in this subsection 5.2 have been satisfied. It is understood and
agreed that conversions and continuations of Revolving Credit Loans pursuant to
subsection 2.9 shall not be subject to the conditions set forth in this
subsection 5.2.
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as any Commitment shall
remain in effect, any Letter of Credit remains outstanding (other than any
Letter of Credit that has been cash-collateralized pursuant to subsection 3.9),
any principal of or interest on any Loan or any other amount shall be unpaid
hereunder, the Company shall:
6.1. 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
37
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 6.1(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 6.1(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;
(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 6.1
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 6.1 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
38
Section 6.1, 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.
6.2. 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 7.3.
6.3. 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 6.3, 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 7.2; and comply, and cause each of its
Significant Subsidiaries to comply, in all material respects with all
Requirements of Law (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 7.3.
6.4. Notices. Promptly give notice (or in the case of subsection
6.4(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 7.3;
(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
39
(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 7.3.
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.
6.5. 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.
6.6. 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
violation of subsection 7.3; provided, however, that nothing in this subsection
6.6 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 7.2.
6.7. 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.
6.8. 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
40
of the Federal Reserve System.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that, so long as any Commitment remains in
effect, any Letter of Credit remains outstanding (other than any Letter of
Credit that has been cash-collateralized pursuant to subsection 3.9), or any
principal of or interest on any Loan or any other amount shall be unpaid
hereunder, the Company shall not:
7.1. 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;
(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
41
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 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;
42
(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 7.1, 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 7.1 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 7.3, nothing contained in this subsection
7.1 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.
7.2. 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 7.1, 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.
7.3. Net Worth. Permit Net Worth at any time to be less than
$4,000,000,000.
43
SECTION 8. 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 or
Reimbursement Obligation when due in accordance with the terms hereof; (ii) fail
to pay any interest on any Loan or Reimbursement Obligation, 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 7; 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 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
44
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 7.3; or
(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 7.3;
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 (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) 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
45
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. The Company shall deposit in
the Cash Collateral Account an amount equal to the aggregate then undrawn and
unexpired amount of Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph (to the extent such Letters of Credit have not been
cash-collateralized pursuant to subsection 3.9). Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 9. THE AGENTS
9.1. 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.
9.2. 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.
9.3. 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
46
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.
9.4. 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.
9.5. 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 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.
9.6. 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
47
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.
9.7. 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.
9.8. 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 and with respect to any Letter of Credit
issued or participated in by it, the Administrative Agent shall have the same
rights and powers under this Agreement as any 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.
9.9. 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
48
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 10. MISCELLANEOUS
10.1. 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 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
2.1(c) or this subsection 10.1, 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 7.2), in
each case without the written consent of all the Banks, (c) amend, modify or
waive any provision of Section 9 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 or (d) amend, modify or waive any provision of Section
3 without the written consent of the Issuing Bank. Nothing in this subsection
10.1 shall prevent or prohibit the Administrative Agent, the Company or any Bank
from taking any action in accordance with subsection 2.1(c), 2.20, 2.22 or 2.23
notwithstanding anything contained in this subsection 10.1 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
49
Additional Bank and allowing the execution and delivery of an Additional Bank
Agreement, (iv) allowing a Notifying Bank to transfer its rights and obligations
to a Replacement Bank, or (v) 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), 2.20,
2.22 or 2.23. 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.
10.2. 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
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
50
9.5 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.
10.3. 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.
10.4. 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.
10.5. 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 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
51
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.
10.6. 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 (including any affiliate
of the Issuing Bank that issues any Letter of Credit), 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
7.2).
(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. 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 2.17, 2.18, 2.19 and 10.5 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, the Administrative Agent and the Issuing Bank (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
52
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 10.6, the consent of the Company shall not be
required for any assignment which occurs at any time when any of the events
described in Section 8(f) shall have occurred and be continuing.
(d) The Administrative Agent shall maintain at its address referred
to in subsection 10.2 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
and L/C Obligations 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, the Issuing Bank and the Banks shall
treat each Person whose name is recorded in the Register as the owner of the
Loan and participations in Letters of Credit recorded therein for all purposes
of this Agreement. The Register shall be available for inspection by the
Company, the Issuing Bank 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.
53
(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 2.18(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 2.18(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.
10.7. 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 8(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, provided that such
Transferee or prospective Transferee agrees to be bound by this subsection 10.7
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
54
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.
10.8. 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 8(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 10.8 shall 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 8, or the
occurrence and continuance of an Event of Default specified in clause (i) or
(ii) of paragraph (f) of Section 8, 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 8), 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.
10.9. 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.
55
10.10. 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.
10.11. 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).
10.12. 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.
10.13. Submission To Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and enforcement of any
judgment 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 10.2 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.
10.14. 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.
10.15. 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 5-Year 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.
CIT GROUP INC.
By: ________________________________
Name:
Title:
Signature page to the 5-Year 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.
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 5-Year 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 5-Year 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.
BARCLAYS BANK PLC, as Documentation
Agent and as a Bank
By: ________________________________
Name:
Title:
Signature page to the 5-Year 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.
BANK OF AMERICA, N.A., as Syndication
Agent and as a Bank
By: ________________________________
Name:
Title:
Signature page to the 5-Year 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.
Name of Bank:
By: ________________________________
Name:
Title: