U.S. $1,500,000,000
CREDIT AGREEMENT
dated as of July 31, 2001
among
MARRIOTT INTERNATIONAL, INC.
THE BANKS NAMED HEREIN
CITIBANK, N.A.,
as Administrative Agent,
SALOMON SMITH BARNEY INC.
and
SCOTIA CAPITAL,
as Joint Lead Arrangers and Joint Book Managers
SCOTIA CAPITAL,
as Syndication Agent
BANK OF AMERICA, N.A,
THE CHASE MANHATTAN BANK
and
FLEET NATIONAL BANK,
as Documentation Agents
THE BANK OF NOVA SCOTIA,
as Letter of Credit Agent
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1
SECTION 1.01. Certain Defined Terms.................................................................. 1
SECTION 1.02. Computation of Time Periods............................................................ 26
SECTION 1.03. Accounting Terms....................................................................... 26
ARTICLE II AMOUNTS AND TERMS OF THE LOANS 27
SECTION 2.01. The Revolving Loans.................................................................... 27
SECTION 2.02. The Competitive Bid Loans.............................................................. 28
SECTION 2.03. The Swing Loans........................................................................ 29
SECTION 2.04. The Letters of Credit.................................................................. 29
SECTION 2.05. Fees................................................................................... 30
SECTION 2.06. Reductions and Increases of the Commitments............................................ 31
SECTION 2.07. Repayment.............................................................................. 34
SECTION 2.08. Interest............................................................................... 36
SECTION 2.09. Interest Rate Determinations........................................................... 37
SECTION 2.10. Prepayments............................................................................ 38
SECTION 2.11. Payments and Computations.............................................................. 39
SECTION 2.12. Taxes.................................................................................. 41
SECTION 2.13. Sharing of Payments, Etc............................................................... 44
SECTION 2.14. Conversion of Revolving Loans.......................................................... 45
SECTION 2.15. Extension of Termination Date.......................................................... 45
SECTION 2.16. Borrowings by Designated Borrowers..................................................... 49
ARTICLE III MAKING THE LOANS AND ISSUING THE LETTERS OF CREDIT 49
SECTION 3.01. Making the Revolving Loans............................................................. 50
SECTION 3.02. Making the Competitive Bid Loans....................................................... 52
SECTION 3.03. Making the Swing Loans, Etc............................................................ 54
SECTION 3.04. Issuance of Letters of Credit.......................................................... 57
SECTION 3.05. Increased Costs........................................................................ 60
SECTION 3.06. Illegality............................................................................. 61
SECTION 3.07. Reasonable Efforts to Mitigate......................................................... 62
SECTION 3.08. Right to Replace Affected Person or Lender............................................. 62
SECTION 3.09. Use of Proceeds........................................................................ 63
ARTICLE IV CONDITIONS OF LENDING 63
SECTION 4.01. Conditions Precedent to Initial Borrowing.............................................. 63
SECTION 4.02. Conditions Precedent to Each Revolving Loan Borrowing, Swing Loan Borrowing and
Letter of Credit Issuance.................................................................... 64
SECTION 4.03. Conditions Precedent to Each Competitive Bid Loan Borrowing............................ 65
ARTICLE V REPRESENTATIONS AND WARRANTIES 66
Page
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SECTION 5.01. Representations and Warranties of the Company.......................................... 66
ARTICLE VI COVENANTS OF THE COMPANY 68
SECTION 6.01 Affirmative Covenants................................................................... 68
SECTION 6.02 Negative Covenants...................................................................... 71
ARTICLE VII EVENTS OF DEFAULT 74
SECTION 7.01. Events of Default...................................................................... 74
SECTION 7.02. Actions in Respect of the Letters of Credit Upon Event of Default; L/C Cash
Collateral Account; Investing of Amounts in the L/C Cash Collateral Account; Release.......... 77
ARTICLE VIII THE AGENTS 80
SECTION 8.01. Authorization and Action............................................................... 80
SECTION 8.02. Reliance, Etc.......................................................................... 80
SECTION 8.03. The Agents and their Affiliates as Lenders............................................. 81
SECTION 8.04. Lender Credit Decision................................................................. 81
SECTION 8.05. Indemnification........................................................................ 81
SECTION 8.06. Successor Administrative Agent......................................................... 82
ARTICLE IX MISCELLANEOUS 82
SECTION 9.01. Amendments, Etc........................................................................ 82
SECTION 9.02. Notices, Etc........................................................................... 83
SECTION 9.03. No Waiver; Remedies.................................................................... 83
SECTION 9.04. Costs and Expenses..................................................................... 83
SECTION 9.05. Right of Set-off....................................................................... 85
SECTION 9.06. Binding Effect......................................................................... 85
SECTION 9.07. Assignments and Participations......................................................... 85
SECTION 9.08. No Liability of the Issuing Bank or the Letter of Credit Agent......................... 90
SECTION 9.09. Governing Law.......................................................................... 91
SECTION 9.10. Execution in Counterparts.............................................................. 91
SECTION 9.11. Confidentiality........................................................................ 91
SECTION 9.12. Jurisdiction, Etc...................................................................... 91
SECTION 9.13. WAIVER OF JURY TRIAL................................................................... 92
SECTION 9.14. Judgment Currency...................................................................... 92
SECTION 9.15. European Monetary Union................................................................ 93
ARTICLE X GUARANTEE 93
SECTION 10.01. Guarantee............................................................................. 93
SECTION 10.02. Obligations Unconditional............................................................. 94
SECTION 10.03. Reinstatement......................................................................... 94
ii
Page
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SECTION 10.04. Subrogation........................................................................... 94
SECTION 10.05. Remedies.............................................................................. 94
SECTION 10.06. Continuing Guarantee.................................................................. 95
SCHEDULES
---------
Schedule I - Applicable Lending Offices
Schedule II - Existing Liens
Schedule III - Mandatory Costs
Schedule IV - Swing Loan Banks
EXHIBITS
Exhibit A-1 - Form of Revolving Loan Note
Exhibit A-2 - Form of Competitive Bid Loan Note
Exhibit B-1 - Notice of Revolving Loan Borrowing
Exhibit B-2 - Notice of Competitive Bid Loan Borrowing
Exhibit C-1 - Form of Assignment and Acceptance
Exhibit C-2 - Form of Participation Agreement
Exhibit C-3 - Form of New Commitment Acceptance
Exhibit D - Form of Opinion of the Company's Law Department
Exhibit E - Form of Opinion of Special New York Counsel
to the Administrative Agent
Exhibit F-1 - Form of Designation Letter
Exhibit F-2 - Form of Termination Letter
Exhibit G - Form of Effective Date Notification
iii
CREDIT AGREEMENT
CREDIT AGREEMENT (the "Agreement") dated as of July 31, 2001 among
---------
MARRIOTT INTERNATIONAL, INC., a Delaware corporation (the "Company"), the banks
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listed on the signature pages hereof under the heading "Banks" (the "Banks") and
-----
the other Lenders (as defined below) party hereto from time to time, CITIBANK,
N.A., as administrative agent (in such capacity, the "Administrative Agent") for
--------------------
the Lenders hereunder and THE BANK OF NOVA SCOTIA, as letter of credit agent (in
such capacity, the "Letter of Credit Agent").
----------------------
The Company has entered into a Credit Agreement dated as of February
19, 1998 with certain banks, Citibank, N.A., as Administrative Agent, The Bank
of Nova Scotia, as Documentation Agent, The Bank of Nova Scotia, as Letter of
Credit Agent, and The Chase Manhattan Bank and The First National Bank of
Chicago, as Managing Agents (as amended to the date hereof, the "Existing Credit
---------------
Agreement"), providing for the extension of credit to the Company and certain of
---------
its designated wholly-owned subsidiaries in an aggregate principal amount up to
but not exceeding $1,500,000,000. The Company wishes to refinance the Existing
Credit Agreement and, in that connection, has requested that the Banks provide
the credit facilities referred to herein. Accordingly, the parties hereto agree
that, effective on the Effective Date (as defined below), the parties agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
---------------------
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acceptance" means an Assignment and Acceptance or a New Commitment
----------
Acceptance.
"Adjusted Total Debt" means, as at any date, the sum for the Company
-------------------
and its Subsidiaries (determined on a Consolidated basis without duplication in
accordance with GAAP) of:
(a) the aggregate principal amount of Debt for Borrowed Money of the
Company and its Subsidiaries (other than any such Debt for Borrowed Money
constituting Non-Recourse Indebtedness) outstanding on such date plus
----
(b) the excess, if any, of (i) the aggregate of all Guarantees by the
Company and its Subsidiaries of Debt for Borrowed Money of others as of
such date over (ii) $400,000,000.
----
"Administrative Agent" has the meaning specified in the recital of
--------------------
parties to this Agreement.
"Administrative Agent's Account" means, in respect of any Currency,
------------------------------
such account as the Administrative Agent shall designate in a notice to the
Company and the Lenders.
"Affected Person" has the meaning specified in Sections 2.12(j),
---------------
3.05(d), 3.06 and 3.08(a).
"Affiliate" means, as to any Person, any other Person that, directly
---------
or indirectly, controls, is controlled by or is under common control with such
Person or, unless the reference is to an Affiliate of a Lender, is a Marriott
Family Member or is a partner, member, director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Agents" means, collectively, the Administrative Agent and the Letter
------
of Credit Agent.
"Alternate Currency" means, at any time, any currency other than
------------------
Dollars, provided that, at such time, (i) such Currency is dealt with in the
--------
London interbank deposit market, or, in the case of Pounds Sterling, the Paris
interbank market, or, in the case of Euros borrowed in connection with EURIBOR
Loans, the European interbank deposit market, (ii) such Currency is freely
transferable and convertible into Dollars in the London foreign exchange market
or, in the case of Euros, the European interbank deposit market, and (iii) no
central bank or other governmental authorization in the country of issue of such
currency (including, in the case of Euros borrowed in connection with EURIBOR
Loans, any authorization by the European Central Bank) is required to permit use
of such Currency by any Lender for making any Loan and/or to permit the relevant
Borrower to borrow and repay the principal thereof and to pay the interest
thereon (unless such authorization has been obtained and is in full force and
effect).
"Applicable Lending Office" means, with respect to each Lender, and
-------------------------
for each Type and Currency of Loan, such Lender's Domestic Lending Office in the
case of a Base Rate Loan and such Lender's Eurocurrency Lending Office in the
case of a Eurocurrency Rate Loan and, in the case of a Competitive Bid Loan, the
office of such Lender notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such Competitive Bid Loan, or in any
case such other office of such Lender or of an Affiliate of such Lender as such
Lender may from time to time specify to the Administrative Agent and the
Company.
2
"Applicable Margin" means, as of any date, the applicable margin set
-----------------
forth below under the Eurocurrency Rate column set forth below, based upon the
Public Debt Rating in effect on such date:
==================================================
Public Debt
Rating Eurocurrency Rate
S&P/Moody's
==================================================
Level 1
-------
A/A2 or higher 0.215%
--------------------------------------------------
Level 2
-------
A-/A3 0.295%
--------------------------------------------------
Level 3
-------
BBB+/Baa1 0.375%
--------------------------------------------------
Level 4
-------
BBB/Baa2 0.475%
--------------------------------------------------
Level 5
-------
BBB-/Baa3 0.675%
--------------------------------------------------
Level 6
-------
Lower than Level 5 0.900%
==================================================
"Applicable Percentage" means, as of any date, the applicable
percentage set forth below under the Facility Fee or, as applicable, the
Utilization Fee column based upon the Public Debt Rating in effect on such date:
========================================================
Public Debt
Rating Facility Utilization
S&P/Moody's Fee Fee
========================================================
Level 1
-------
A/A2 or higher 0.085% 0.125%
--------------------------------------------------------
Level 2
-------
A-/A3 0.105% 0.125%
--------------------------------------------------------
Level 3
-------
BBB+/Baa1 0.125% 0.125%
--------------------------------------------------------
Level 4
-------
BBB/Baa2 0.150% 0.125%
--------------------------------------------------------
Level 5
-------
BBB-/Baa3 0.200% 0.125%
--------------------------------------------------------
3
========================================================
Public Debt
Rating Facility Utilization
S&P/Moody's Fee Fee
========================================================
Level 6
-------
Lower than Level 5 0.300% 0.300%
========================================================
"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender and an Eligible Assignee, and accepted by the Administrative
Agent, in accordance with Section 9.07 and in substantially the form of Exhibit
C-1 hereto.
"Available Amount" of any Letter of Credit means, at any time, the
----------------
maximum amount available to be drawn under such Letter of Credit at such time
(assuming compliance at such time with all conditions to drawing), provided
--------
that, if any Letter of Credit provides for future increases in the maximum
amount available to be drawn under such Letter of Credit, then the "Available
---------
Amount" of such Letter of Credit shall mean, at any time, the maximum amount
------
available to be drawn under such Letter of Credit after taking into account all
increases in the availability thereunder.
"Avendra" means Avendra LLC, an independent professional procurement
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services company formed in 2001 by the Company, Hyatt Hotels Corporation, Bass
Hotels and Resorts, Inc., ClubCorp USA Inc., and Fairmont Hotels and Resorts,
Inc. which serves the North American hospitality market and selected industries,
and its Subsidiaries.
"BNS" means The Bank of Nova Scotia and its successors.
---
"Banks" has the meaning specified in the recital of parties to this
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Agreement.
"Base Rate" means, for any period, a fluctuating interest rate per
---------
annum as shall be in effect from time to time which rate per annum shall at all
times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as its "base rate";
(b) the sum (adjusted to the nearest 1/4 of one percent, or, if there
is no nearest 1/4 of one percent, to the next higher 1/4 of one percent) of
(i) 1/2 of one percent per annum, plus (ii) the rate obtained by dividing
----
(A) the latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of deposit
of major United States money market banks, such three-week moving average
(adjusted to the basis of a year of 365/366 days) being determined weekly
on each Monday (or, if any such date is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the previous
Friday by Citibank on the basis of such rates reported by certificate of
deposit dealers to and published by the Federal Reserve Bank of New York
or, if such publication shall be suspended or terminated, on the basis of
quotations for such rates received by Citibank
4
from three New York certificate of deposit dealers of recognized standing
selected by Citibank, by (B) a percentage equal to 100% minus the average
of the daily percentages specified during such three-week period by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not limited to,
any emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including (among
other liabilities) three-month U.S. dollar non-personal time deposits in
the United States, plus (iii) the average during such three-week period of
----
the annual assessment rates for determining the then current annual
assessment payable by Citibank to the FDIC for insuring U.S. dollar
deposits in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Loan" means a Loan which bears interest as provided in
--------------
Section 2.08(a)(i).
"Base Rate Swing Loan" has the meaning specified in Section 3.03(b).
--------------------
"Bondable Lease Obligation" of any Person means the obligation of such
-------------------------
Person as tenant under an operating lease, upon the occurrence of a significant
underinsured casualty, an under-compensated governmental taking or the practical
inability to operate the premises for an extended period of time due to force
-----
majeure or loss of a material permit, to make a payment to the landlord (or to
-------
make an irrevocable offer to purchase the landlord's fee interest to avoid
termination of such lease) in an amount that is calculated with reference to the
landlord's leasehold indebtedness.
"Borrowers" means, at any time, collectively, the Company (both as a
---------
Borrower and as guarantor under Article X of Loans made to the Designated
Borrowers) and each Designated Borrower.
"Borrowing" means a Revolving Loan Borrowing, a Swing Loan Borrowing
---------
or a Competitive Bid Loan Borrowing.
"Business Day" means (a) a day of the year on which commercial banks
------------
are not required or authorized to close in New York City, (b) if the applicable
Business Day relates to any Eurocurrency Rate Loans (other than EURIBOR Loans
denominated in Euros), on which dealings are carried on in the London (and, in
the case of Pounds Sterling, Paris) interbank market, and, if such day relates
to a Borrowing of, a payment or prepayment of principal of or interest on, or an
Interest Period for, any Loan denominated in an Alternate Currency (other than
Euros borrowed in connection with EURIBOR Loans), or a notice with respect to
any such Borrowing, payment, prepayment or Interest Period, also on which
foreign exchange trading is carried out in the London interbank market (and, in
the case of Pounds Sterling, Paris) interbank market and on which banks are open
in the place of payment in the country in whose Currency such Loan is
denominated, and (c) if the applicable Business Day relates to any EURIBOR Loans
denominated in Euros and relates to a Borrowing of, a payment or prepayment of
principal
5
of or interest on, or an Interest Period for, any EURIBOR Loan
denominated in Euros, or a notice with respect to any such Borrowing, payment,
prepayment or Interest Period, a Target Operating Day.
"Change of Control" means:
-----------------
(i) any Person or two or more Persons acting in concert (other
than a Significant Shareholder or group of Significant Shareholders) shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Company (or other
securities convertible into such Voting Stock) representing not less than
30% of the combined voting power of all Voting Stock of the Company; or
(ii) during any period of up to 24 consecutive months, commencing on
the date of this Agreement, individuals who at the beginning of such
24-month period were directors of the Company (together with any new
director whose election by the board of directors or whose nomination for
election by the stockholders of the Company was approved by a vote of at
least two-thirds of the directors then in office who either were directors
at the beginning of such period or whose election or nomination for
election was previously so approved) shall cease for any reason (other than
solely as a result of (a) death or disability or (b) voluntary retirement
of any individual in the ordinary course and not for reasons related to an
actual or proposed change in control of the Company) to constitute a
majority of the board of directors of the Company; or
(iii) any Person or two or more Persons acting in concert (other than
a Significant Shareholder or group of Significant Shareholders) shall have
acquired the power to exercise, directly or indirectly, effective control
for any purpose over Voting Stock of the Company (or other securities
convertible into such securities) representing not less than 30% of the
combined voting power of all Voting Stock of the Company.
"Chase" means The Chase Manhattan Bank and its successors.
-----
"Citibank" means Citibank, N.A. and its successors.
--------
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, and the regulations promulgated and rulings issued thereunder.
"COLI Debt" means all Indebtedness of the Company or any of its
---------
Subsidiaries to the insurance company issuing the COLI Policies, if and for so
long as:
(a) the aggregate principal amount of such Indebtedness is equal to
or less than the aggregate account value of all COLI Policies at the time
such Indebtedness is incurred by the Company and such Subsidiaries and at
all times thereafter; and
6
(b) the documentation with respect to such Indebtedness limits the
recourse of the insurance company issuing the COLI Policies, as lender,
against the Company and such Subsidiaries for the payment of such
Indebtedness directly to the ownership interest of the Company and its
Subsidiaries in the COLI Policies.
"COLI Policies" means all corporate-owned life insurance policies
-------------
purchased and maintained by the Company or any of its Subsidiaries to insure the
lives of certain employees of the Company and its Subsidiaries.
"Commitment" means, as to any Lender, (i) the Dollar amount set forth
----------
opposite its name on the signature pages hereof or (ii) if such Lender has
entered into one or more Acceptances, the amount set forth for such Lender in
the Register, in each case as the same may be increased or reduced as expressly
provided herein (including, without limitation, pursuant to Sections 2.06,
2.15(c) and 3.08).
"Company" has the meaning specified in the recital of parties to this
-------
Agreement.
"Competitive Bid Loan" means a loan by a Lender to a Borrower as part
--------------------
of a Competitive Bid Loan Borrowing resulting from the auction bidding procedure
described in Section 3.02.
"Competitive Bid Loan Borrowing" means a Borrowing by a Borrower from
------------------------------
each of the Lenders whose offer to make one or more Competitive Bid Loans as
part of such borrowing has been accepted by the Company under the auction
bidding procedure described in Section 3.02.
"Competitive Bid Loan Note" means a promissory note of a Borrower
-------------------------
payable to the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of such Borrower to such Lender resulting
from a Competitive Bid Loan made by such Lender.
"Competitive Bid Loan Reduction" has the meaning specified in Section
------------------------------
2.01.
"Confidential Information" means information that the Company or any
------------------------
of its Subsidiaries or Affiliates furnishes to the Agents or any Lender on a
confidential basis by informing the recipient that such information is
confidential or marking such information as such, but does not include any such
information that (i) is or becomes generally available to the public or (ii) is
or becomes available to such Person or Persons from a source other than the
Company or any of its Subsidiaries or Affiliates, unless such Person has actual
knowledge that (a) such source is bound by a confidentiality agreement or (b)
such information has been previously furnished to such Person on a confidential
basis.
"Consolidated" refers to the consolidation of accounts of the Company
------------
and its Subsidiaries in accordance with GAAP.
7
"Conversion", "Convert" and "Converted" each refer to a conversion of
---------- ------- ---------
Revolving Loans of one Type into Revolving Loans of the other Type pursuant to
Section 2.14.
"Currency" means Dollars or any Alternate Currency.
--------
"Current Aggregate Commitment" means, at any time, the aggregate
----------------------------
amount of the Commitments as then in effect (computed without regard to any
Competitive Bid Loan Reduction, any Swing Loan Reduction or any Letter of Credit
Reduction).
"Debt for Borrowed Money" of any Person means:
-----------------------
(i) all indebtedness of such Person for borrowed money;
(ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade payables and accruals
incurred in the ordinary course of such Person's business);
(iv) all obligations of such Person as lessee under leases which
shall have been or should be, in accordance with GAAP, recorded as capital
leases; and
(v) all obligations, contingent or otherwise, of such Person
under acceptance, letter of credit or similar facilities to the extent that
such obligations support an obligation described in clauses (i) through
(iv) above.
"Default" means any Event of Default or any event that would
-------
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Designated Borrower" means any Wholly-Owned Subsidiary of the
-------------------
Company, as to which a Designation Letter has been delivered to the
Administrative Agent and as to which a Termination Letter has not been delivered
to the Administrative Agent in accordance with Section 2.16.
"Designation Letter" has the meaning specified in Section 2.16(a).
------------------
"Dollar Equivalent" means, with respect to any principal of or
-----------------
interest on any Loan denominated in an Alternate Currency, the amount of Dollars
that would be required to purchase the amount of the Alternate Currency of such
principal or interest on the date such Loan is requested (or (x) as otherwise
provided in Section 2.07(e), (y) in the case of any Competitive Bid Loan, the
date of the related Notice of Competitive Bid Loan Borrowing, and (z) in the
case of any redenomination under Section 2.11(e), on the date of such
redenomination), based upon the arithmetic mean (rounded upwards, if necessary,
to the nearest 1/100 of 1%), as determined by the Administrative Agent, of the
spot selling rate at which the Reference Banks
8
offer to sell such Alternate Currency for Dollars in (i) in the case of LIBOR
Loans, the London foreign exchange market at approximately 11:00 A.M. London
time or (ii) in the case of EURIBOR Loans, the London foreign exchange market at
approximately 10:00 A.M. London time or, at the request of the Borrower, 11:00
A.M., Brussels time, in each case for delivery two Business Days thereafter.
"Dollars" and "$" mean lawful money of the United States of America.
------- -
"Domestic Lending Office" means, with respect to any Lender, the
-----------------------
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule I hereto or in the Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from time to time
specify to the Company and the Administrative Agent.
"EBITDA" means, for any period, net income (or net loss) plus the sum
------ ----
of (a) Interest Expense, (b) income tax expense, (c) depreciation expense, (d)
amortization expense and (e) non-recurring non-cash charges (including the
cumulative effect of accounting changes), in each case determined in accordance
with GAAP for such period.
"Effective Date" has the meaning set forth in Section 4.01.
--------------
"Eligible Assignee" means:
-----------------
(i) a Lender and any Affiliate of such Lender;
(ii) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$1,000,000,000;
(iii) a savings bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$500,000,000;
(iv) a commercial bank organized under the laws of any other
country which is a member of the OECD or a political subdivision of any
such country, and having total assets in excess of $1,000,000,000; and
(v) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership or other entity)
which is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business, and having total assets in
excess of $150,000,000.
"Environmental Law" means any federal, state or local law, rule,
-----------------
regulation, order, writ, judgment, injunction, decree, determination or award
relating to the environment, health, safety or hazardous materials, including,
without limitation, CERCLA, the Resource Conservation and Recovery Act, the
Hazardous Materials Transportation Act, the Clean Water Act, the Toxic
Substances Control Act, the Clean Air Act, the Safe Drinking Water Act, the
9
Atomic Energy Act, the Federal Insecticide, Fungicide and Rodenticide Act and
the Occupational Safety and Health Act.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV of
---------------
ERISA is a member of the Company's controlled group, or under common control
with the Company, within the meaning of Section 414(b) or 414(c) of the Code.
"ERISA Event" means, with respect to any Person, (a) the occurrence of
-----------
a reportable event, within the meaning of Section 4043 of ERISA, with respect to
any Plan of such Person or any of its ERISA Affiliates unless the 30-day notice
requirement with respect to such event has been waived by the PBGC; (b) the
provision by the administrator of any Plan of such Person or any of its ERISA
Affiliates of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA with respect to a termination described in Section
4041(c)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (c) the cessation of operations at a
facility of such Person or any of its ERISA Affiliates in the circumstances
described in Section 4062(e) of ERISA; (d) the withdrawal by such Person or any
of its ERISA Affiliates from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(e) the failure by such Person or any members of its controlled group (within
the meaning of Section 302(f)(6)(B) of ERISA) to make a payment to a Plan
required under Section 302(f)(1)(A) and (B) of ERISA; (f) the adoption of an
amendment to a Plan of such Person or any of its ERISA Affiliates requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA; or (g) the
institution by the PBGC of proceedings to terminate a Plan of such Person or any
of its ERISA Affiliates, pursuant to Section 4042 of ERISA.
"EMU" means economic and monetary union as contemplated in the Treaty
---
on European Union.
"EMU Legislation" means legislative measures of the European Council
---------------
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the euro or otherwise), being in part the
implementation of the third stage of EMU.
"Euros" means the single currency of Participating Member States of
-----
the European Union, which shall be an Alternate Currency under this Agreement.
"EURIBOR Loan" means any Eurocurrency Rate Loan which is denominated
------------
in Euros and bears interest at a rate determined in accordance with clause (b)
of the definition of Eurocurrency Rate in this Section 1.01.
"Eurocurrency Lending Office" means, with respect to any Lender, the
---------------------------
office of such Lender specified as its "Eurocurrency Lending Office" opposite
its name on Schedule I hereto or in the Acceptance pursuant to which it became a
Lender (or, if no such office is
10
specified, its Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify to the Company and the Administrative
Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
------------------------
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means:
-----------------
(a) for any Interest Period for each LIBOR Loan in any Currency
comprising part of the same Revolving Loan Borrowing, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of one percent)
appearing on the Screen for such Currency as the London Interbank Offered
Rate for deposits in such Currency at approximately 11:00 A.M. London time
(or as soon thereafter as practicable) two Business Days prior to the first
day of the Interest Period for such Loan; provided that if such rate does
--------
not appear on such Screen (or, if such Screen shall cease to be publicly
available or if the information contained on such Screen, in the
Administrative Agent's reasonable judgment, shall cease accurately to
reflect such London Interbank Offered Rate, as reported by any publicly
available source of similar market data selected by the Administrative
Agent that, in the Administrative Agent's reasonable judgment, accurately
reflects such London Interbank Offered Rate), the "Eurocurrency Rate" for
such Interest Period for such LIBOR Loan in such Currency shall be the
arithmetic average (rounded to the nearest 1/100 of one percent) of the
rates per annum at which deposits in such Currency are offered by the
principal office of each of the Reference Banks in London, England to prime
banks in the London (or, in the case of Pounds Sterling, Paris) interbank
market at approximately 11:00 A.M. (London time) two Business Days before
the first day of the Interest Period for such Loan in an amount
substantially equal to such Reference Bank's LIBOR Loan comprising part of
such Revolving Loan Borrowing to be outstanding during such Interest
Period; and
(b) for any Interest Period for each EURIBOR Loan in Euros comprising
part of the same Revolving Loan Borrowing, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of one percent) appearing on
the Screen for Euros as the interbank offered rates for deposits in Euros
within the member states of the European Union which are Participating
Member States at approximately 10:00 A.M. London time or, at the request of
the Borrower, 11:00 A.M. Brussels time (or as soon thereafter as
practicable), in each case, two Business Days prior to the first day of the
Interest Period for such EURIBOR Loan; provided that if such rate does not
--------
appear on such Screen (or, if such Screen shall cease to be publicly
available or if the information contained on such Screen, in the
Administrative Agent's reasonable judgment, shall cease accurately to
reflect such interbank offered rates for deposits in Euros within the
member states of the European Union which are Participating Member States,
as reported by any publicly available source of similar market data
selected by the Administrative Agent that, in the Administrative Agent's
reasonable judgment, accurately reflects such interbank offered rates for
deposits in Euros within the member states of the European Union which are
11
Participating Member States), the "Eurocurrency Rate" for such Interest
Period for such EURIBOR Loan shall be the arithmetic average (rounded to
the nearest 1/100 of one percent) of the rates per annum at which deposits
in Euros are offered by the principal office of each of the Reference Banks
in (i) London, England to prime banks in the London interbank market at
approximately 10:00 A.M. (London time), or (ii) at the request of the
Borrower, Brussels to prime banks in the interbank market within member
state of the European Union which are Participating Member States at
approximately 11:00 A.M. (Brussels time), in each case, two Business Days
before the first day of the Interest Period for such EURIBOR Loan in an
amount substantially equal to such Reference Bank's EURIBOR Loan comprising
part of such Revolving Loan Borrowing to be outstanding during such
Interest Period.
The Eurocurrency Rate for any Interest Period for each Eurocurrency
Rate Loan comprising part of the same Revolving Loan Borrowing shall be
determined by the Administrative Agent on the basis of the applicable Screen or
the applicable rates furnished to and received by the Administrative Agent from
the Reference Banks, as the case may be, two Business Days before the first day
of such Interest Period, subject, however, to the provisions of
------- -------
Section 2.09.
"Eurocurrency Rate Loan" means a Loan which bears interest as provided
----------------------
in Section 2.08(a)(ii).
"Eurocurrency Rate Reserve Percentage" of any Lender for any Interest
------------------------------------
Period for any Eurocurrency Rate Loan means the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term equal
to such Interest Period.
"Events of Default" has the meaning specified in Section 7.01.
-----------------
"Excluded Representations" means the representations and warranties
------------------------
set forth in (i) the last sentence of Section 5.01(b) (to the extent the
representations and warranties set forth in such sentence relate to matters
other than the Loan Documents), (ii) the last sentence of Section 5.01(e) and
(iii) Sections 5.01(g), 5.01(h), 5.01(i) and 5.01(j).
"Existing Credit Agreement" has the meaning specified in the
-------------------------
introduction hereto.
"Existing Letters of Credit" means each "Letter of Credit" issued
--------------------------
pursuant to the terms of, and as defined in, the Existing Credit Agreement and
outstanding on the Effective Date.
"FDIC" means the Federal Deposit Insurance Corporation or any
----
successor.
12
"Federal Funds Rate" means, for any period, a fluctuating interest
------------------
rate per annum equal for each day during such period to 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 next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Final Termination Date" means, at any time, the latest occurring
----------------------
Termination Date in effect at such time.
"Foreclosure Guarantee" means any guarantee of secured Indebtedness
---------------------
the obligations under which guarantee are limited to providing that following
foreclosure (or sale in lieu thereof) on all such security the guarantor will
pay the holder of such Indebtedness the amount (if any) by which the aggregate
proceeds received by such holder from such foreclosure or sale fall short of a
specified amount, provided that such specified amount does not exceed 25% of the
--------
original principal amount of such secured Indebtedness.
"Foreign Currency Equivalent" means, with respect to any amount in
---------------------------
Dollars, the amount of an Alternate Currency that could be purchased with such
amount of Dollars using the reciprocal of foreign exchange rate(s) specified in
the definition of the term "Dollar Equivalent", as determined by the
Administrative Agent.
"GAAP" means generally accepted accounting principles in the United
----
States of America as in effect from time to time, except that, with respect to
the determination of compliance by the Company with the covenant set forth in
Section 6.01(j), "GAAP" shall mean such principles in the United States of
----
America as in effect as of the date of, and used in, the preparation of the
audited financial statements of the Company referred to in Section 5.01(e).
"Granting Bank" has the meaning specified in Section 9.07(a).
-------------
"Guarantee" of any Person means (a) any obligation, contingent or
---------
otherwise, directly or indirectly guaranteeing any Debt for Borrowed Money of
any other Person and (b) any other arrangement having the economic effect of a
Guarantee and the principal purpose of which is to assure a creditor against
loss in respect of Debt for Borrowed Money, in each case other than (i) the
endorsement for collection or deposit in the ordinary course of business, (ii)
any Foreclosure Guarantee and (iii) any Bondable Lease Obligation. The amount of
any Guarantee (other than for purposes of determining the Company's obligations
under Article X) shall be deemed to be the lower of (a) an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Guarantee is made, and (b) the maximum amount for which such Person may be
liable pursuant to the instrument embodying such Guarantee, unless such primary
obligation and the maximum amount for which such guaranteeing Person may be
liable are not stated or determinable, in which case the amount of such
Guarantee shall
13
be such Person's maximum reasonably anticipated liability in respect thereof as
determined by the Company in good faith.
"Guaranteed Obligations" has the meaning specified in Section 10.01.
----------------------
"Increasing Lender" means, in connection with any increase in the
-----------------
aggregate amount of the Commitments pursuant to Section 2.06(b), a Lender whose
Commitment is increased pursuant to Section 2.06(b)(vi).
"Indebtedness" of any Person means (i) all Debt for Borrowed Money of
------------
such Person, (ii) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person and (iii) all Guarantees of such Person.
"Indemnified Party" has the meaning specified in Section 9.04(b).
-----------------
"Insufficiency" means, with respect to any Plan, the amount, if any,
-------------
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Expense" means, for any period, gross interest expense plus
---------------- ----
capitalized interest for such period, in each case determined in accordance with
GAAP.
"Interest Period" means: (a) with respect to each Eurocurrency Rate
---------------
Loan, the period commencing on the date of such Eurocurrency Rate Loan and
ending on the numerically corresponding day in the first, second, third or sixth
(or, if requested by the Company and acceptable to each of the Lenders, ninth or
twelfth) calendar month thereafter, as the Company (on its own behalf and on
behalf of any other Borrower) may, upon notice received by the Administrative
Agent not later than 12:00 noon (New York City time) on the third Business Day
prior to the first day of such Interest Period, select;
(b) with respect to each Base Rate Loan, the period commencing on the
date of such Base Rate Loan and ending on the first Quarterly Date
thereafter; and
(c) with respect to each Competitive Bid Loan, the period commencing
on the date of such Competitive Bid Loan and ending on the maturity date
thereof determined in accordance with Section 2.02(c);
provided that:
--------
(i) the Company may not select any Interest Period that ends after
the Final Termination Date;
(ii) Interest Periods commencing on the same date for Revolving Loans
comprising part of the same Revolving Loan Borrowing shall be of the same
duration; and
14
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided in the case of any Interest Period for a Eurocurrency Rate Loan,
--------
that if such extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day.
"Issuing Bank" means BNS, as issuer of any Letter of Credit or such
------------
other Lender as shall, with the consent of BNS, the Company and the
Administrative Agent, have assumed the obligations of BNS as Issuing Bank with
respect to any or all Letters of Credit hereunder.
"L/C Cash Collateral Account" has the meaning specified in Section
---------------------------
7.02(b).
"L/C Cash Collateral Account Collateral" has the meaning specified in
--------------------------------------
Section 7.02(b).
"L/C Cash Collateral Account Investments" has the meaning specified in
---------------------------------------
Section 7.02(c).
"L/C Cash Collateral Account Obligations" has the meaning specified in
---------------------------------------
Section 7.02(e)(i).
"L/C Related Documents" has the meaning specified in Section
---------------------
3.04(c)(i).
"Lenders" means the Banks listed on the signature pages hereof and
-------
each Eligible Assignee that shall become a party hereto pursuant to Section
9.07.
"Letter of Credit Agent" has the meaning specified in the recital of
----------------------
parties to this Agreement.
"Letter of Credit Agreement" has the meaning specified in Section
--------------------------
3.04(a).
"Letter of Credit Facility" means an aggregate amount not to exceed
-------------------------
$500,000,000 at any time outstanding.
"Letter of Credit Loan" means a payment by the Issuing Bank of a draft
---------------------
drawn under any Letter of Credit pursuant to Section 3.04 or, without
duplication, a payment by a Lender in respect thereof pursuant to Section 3.04.
"Letter of Credit Reduction" has the meaning specified in Section
--------------------------
2.01.
"Letters of Credit" has the meaning specified in Section 2.04(b).
-----------------
15
"Leverage Ratio" means, as at the last day of any fiscal quarter of
--------------
the Company ending on or after the date hereof, the ratio of:
(a) Adjusted Total Debt as of such day, to
(b) Consolidated EBITDA for the period of four fiscal quarters ending
on such day.
"LIBOR Loan" means any Eurocurrency Rate Loan which is denominated in
----------
any Currency and bears interest at a rate determined in accordance with clause
(a) of the definition of Eurocurrency Rate in this Section 1.01.
"Lien" means any lien, security interest or other charge or
----
encumbrance of any kind, or any other type of preferential arrangement having
the practical effect of any of the foregoing, including, without limitation, the
lien or retained security title of a conditional vendor and any easement, right
of way or other encumbrance on title to real property.
"Loans" means all Revolving Loans, all Swing Loans, all Competitive
-----
Bid Loans and all Letter of Credit Loans.
"Loan Documents" means this Agreement, the Notes, each Letter of
--------------
Credit Agreement, each Designation Letter and each Termination Letter.
"Local Time" means, with respect to any Loan denominated, or any
----------
payment to be made, in Dollars, New York City time, and with respect to any Loan
denominated, or any payment to be made, in an Alternate Currency, the local time
in the Principal Financial Center for such Currency.
"Mandatory Costs" means, with respect to any Lender, the percentage
---------------
rate per annum calculated by the Administrative Agent in accordance with
Schedule III.
"Margin Regulations" means, collectively, Regulations T, U and X, as
------------------
from time to time in effect, and any regulation replacing the same, of the Board
of Governors of the Federal Reserve System, or any successor thereto.
"Marriott Family Member" means Alice Marriott, J.W. Marriott, Jr.,
----------------------
Richard E. Marriott, any brother or sister of J.W. Marriott, Sr., any children
or grandchildren of any of the foregoing, any spouses of any of the foregoing,
or any trust or other entity established primarily for the benefit of one or
more of the foregoing.
"Material Adverse Change" means any material adverse change in the
-----------------------
business, condition (financial or otherwise), operations or properties of the
Company and its Subsidiaries taken as a whole.
16
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, condition (financial or otherwise), operations or properties of the
Company and its Subsidiaries taken as a whole, (b) the rights and remedies of
the Administrative Agent or any Lender under the Loan Documents or (c) the
ability of the Company to perform its obligations under the Loan Documents.
"Material Subsidiary" means, at any time, a Subsidiary of the Company
-------------------
having (i) at least 10% of the total Consolidated assets of the Company and its
Subsidiaries (determined as of the last day of the most recent fiscal quarter of
the Company) or (ii) at least 10% of the Consolidated revenues of the Company
and its Subsidiaries for the fiscal year of the Company then most recently
ended.
"MICC" means Marriott International Capital Corporation, a Delaware
----
corporation.
"Moody's" means Moody's Investors Service, Inc., or any successor by
-------
merger or consolidation to its business.
"Multiemployer Plan" of any Person means a multiemployer plan, as
------------------
defined in Section 4001(a)(3) of ERISA, and which is a defined benefit plan, to
which such Person or any of its ERISA Affiliates is making or accruing an
obligation to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"Multiple Employer Plan" of any Person means a single employer plan,
----------------------
as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees
of such Person or any of its ERISA Affiliates and at least one Person other than
such Person and its ERISA Affiliates or (b) was so maintained and in respect of
which such Person or any of its ERISA Affiliates could have liability under
Section 4064 or Section 4069 of ERISA in the event such plan has been or were to
be terminated.
"MVCI" means Marriott Ownership Resorts, Inc. (d/b/a Marriott Vacation
----
Club International).
"New Commitment Acceptance" means a New Commitment Acceptance executed
-------------------------
and delivered by a New Lender, and accepted by the Administrative Agent, in
accordance with Section 9.07 and in substantially the form of Exhibit C-3
hereto.
"New Lender" means, for purposes of Sections 2.06(b), 2.15(c) and
----------
9.07(c), an Eligible Assignee (which may be a Lender) approved by the
Administrative Agent (which approval shall not be unreasonably withheld) that
the Company has requested to become a Lender hereunder pursuant to said Section
2.06(b) or 2.15(c).
"Non-Recourse Indebtedness" means any Indebtedness of the Company or
-------------------------
any of its Subsidiaries if, and so long as, such Indebtedness meets the
requirements of clause (i), clause (ii), clause (iii) or clause (iv) below:
17
(i) Such Indebtedness is secured solely by Purchase Money Liens and:
(a) the instruments governing such Indebtedness limit the recourse
(whether direct or indirect) of the holders thereof against the Company and
its Subsidiaries for the payment of such Indebtedness to the property
securing such Indebtedness (with customary exceptions, including, without
limitation, recourse for fraud, waste, misapplication of insurance or
condemnation proceeds, and environmental liabilities); provided that any
--------
partial Guarantee by, or any other limited recourse for payment of such
Indebtedness against, the Company or its Subsidiaries which is not
expressly excluded from the definition of "Guarantee" in this Section 1.01
shall, to the extent thereof, constitute a Guarantee for purposes of the
calculation of Adjusted Total Debt but shall not prevent the non-guaranteed
and non-recourse portion of such Indebtedness from constituting
Non-Recourse Indebtedness; and
(b) if such Indebtedness is incurred after the date hereof by the
Company or a Subsidiary of the Company which is organized under the laws of
the United States or any of its political subdivisions, either:
(x) (1) the holders of such Indebtedness shall have
irrevocably agreed that in the event of any bankruptcy, insolvency or
other similar proceeding with respect to the obligor of such
Indebtedness, such holders will elect (pursuant to Section 1111(b) of
the Federal Bankruptcy Code or otherwise) to be treated as fully
secured by, and as having no recourse against such obligor or any
property of such obligor other than, the property securing such
Indebtedness, and (2) if, notwithstanding any election pursuant to
clause (1) above, such holders shall have or shall obtain recourse
against such obligor or any property of such obligor other than the
property securing such Indebtedness, such recourse shall be
subordinated to the payment in full in cash of the obligations owing
to the Lenders, the Administrative Agent and the Letter of Credit
Agent hereunder and under the Notes; or
(y) the property securing such Indebtedness is not material to
the business, condition (financial or otherwise), operations or
properties of the Company and its Subsidiaries, taken as a whole, as
determined at the time such Indebtedness is incurred;
(ii) (a) The sole obligor of such Indebtedness (such obligor, a
"Specified Entity") is a corporation or other entity formed solely for the
----------------
purpose of owning (or owning and operating) property which is (or may be)
subject to one or more Purchase Money Liens, (b) such Specified Entity owns
no other material property, (c) the sole collateral security provided by
the Company and its Subsidiaries with respect to such Indebtedness (if any)
consists of property owned by such
18
Specified Entity and/or the capital stock of (or equivalent ownership
interests in) such Specified Entity (provided that any partial
--------
Guarantee by, or any other limited recourse for payment of such
Indebtedness against, the Company or its Subsidiaries which is not
expressly excluded from the definition of "Guarantee" in this Section
1.01 shall, to the extent thereof, constitute a Guarantee for purposes
of the calculation of Adjusted Total Debt but shall not prevent the
non-guaranteed and non-recourse portion of such Indebtedness from
constituting Non-Recourse Indebtedness), and (d) such Specified Entity
conducts its business and operations separately from that of the
Company and its other Subsidiaries;
(iii) Such Indebtedness is COLI Debt; or
(iv) Such Indebtedness is non-recourse Indebtedness in an
aggregate principal amount not exceeding $53,782,000 owing by Essex
House Condominium Corporation (a Subsidiary of the Company), as Owner
Participant under the Trust Indenture and Security Agreement (Delta
1993-6) dated as of June 1, 1993 with NationsBank of Georgia, N.A., as
indenture trustee, which Indebtedness is secured by a Boeing 767
aircraft leased to Delta Airlines and by an assignment of such lease.
"Note" means a Revolving Loan Note or a Competitive Bid Loan Note.
----
"Notice of Competitive Bid Loan Borrowing" has the meaning specified
----------------------------------------
in Section 3.02(a).
"Notice of Issuance" has the meaning specified in Section 3.04(a).
------------------
"Notice of Revolving Loan Borrowing" has the meaning specified in
----------------------------------
Section 3.01(a).
"Notice of Swing Loan Borrowing" has the meaning specified in Section
------------------------------
3.03(a).
"OECD" means the Organization for Economic Cooperation and
----
Development.
"Operating Agreement" means an agreement between the Company or one of
-------------------
its Subsidiaries and the owner of a lodging or senior living facility pursuant
to which the Company or such Subsidiary operates such lodging or senior living
facility.
"Other Taxes" has the meaning specified in Section 2.12(b).
-----------
"Participating Member State" means each state so described in any EMU
--------------------------
Legislation.
"Participation Agreement" means a loan participation agreement in
-----------------------
substantially the form of Exhibit C-2 hereto.
19
"PBGC" means the Pension Benefit Guaranty Corporation or any
----
successor.
"Permitted Liens" means any of the following:
---------------
(a) Liens for taxes, assessments and governmental charges or levies
which are not yet due or are payable without penalty or of which the
amount, applicability or validity is being contested by the Company or the
Subsidiary whose property is subject thereto in good faith by appropriate
proceedings as to which adequate reserves are being maintained;
(b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising
in the ordinary course of business which are not delinquent or remain
payable without penalty or which are being contested or defended in good
faith by appropriate proceedings, or which are suspended or released by the
filing of lien bonds, or deposits to obtain the release of such Liens;
(c) pledges, deposits and other Liens made in the ordinary course of
business to secure obligations under worker's compensation laws,
unemployment insurance, social security legislation or similar legislation
or to secure public or statutory obligations;
(d) Liens to secure the performance of bids, tenders, contracts,
leases or statutory obligations, or Liens to secure obligations under the
Self-Insurance Program, or to secure surety, stay or appeal or other
similar types of deposits, Liens or pledges (to the extent such Liens do
not secure obligations for the payment of Debt for Borrowed Money);
(e) attachment or judgment Liens to the extent such Liens are being
contested in good faith and by proper proceedings, as to which adequate
reserves are being maintained (provided that any such Liens as to which
--------
enforcement has been commenced and is unstayed, by reason of pending appeal
or otherwise, for a period of more than thirty consecutive days, do not, in
the aggregate, secure judgments in excess of $25,000,000);
(f) Liens on any property of any Subsidiary of the Company to secure
Indebtedness owing by it to the Company or another Subsidiary of the
Company;
(g) easements, rights of way and other encumbrances on title to real
property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property for
its present purposes;
(h) Liens arising in connection with operating leases incurred in the
ordinary course of business of the Company and its Subsidiaries;
(i) Liens created in connection with the L/C Cash Collateral Account;
20
(j) (i) subordination of any Operating Agreement to any ground lease
and/or any mortgage debt of the owner or landlord, and (ii) any agreement
by the Company or any of its Subsidiaries as operator to attorn to the
holder of such mortgage debt, the lessor under such ground lease or any
successor to either; and
(k) additional Liens upon cash and investment securities; provided
--------
that (i) the only obligations secured by such Liens are obligations arising
under Swap Transactions entered into with one or more counterparties who
are not Affiliates of the Company or any of its Subsidiaries and (ii) the
aggregate fair market value of cash and investment securities covered by
such Liens does not at any time exceed the aggregate amount of the
respective termination or liquidation payments that would be payable to
such counterparties upon the occurrence of an event of default or other
similar event as to which the Company or any of its Subsidiaries is the
defaulting or affected party (subject to the application of any customary
and reasonable collateral valuation discount percentages and minimum
collateral transfer thresholds and timing provisions contained in the
respective security and margin agreements).
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association, limited
liability company, joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
----
"Pounds Sterling" means the lawful money of England.
---------------
"Principal Financial Center" means, in the case of any Currency, the
--------------------------
principal financial center of the country of issue of such Currency, as
determined by the Administrative Agent.
"property" or "properties" means any right or interest in or to
-------- ----------
property of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible.
"Public Debt Rating" means, as of any date, the lowest rating that has
------------------
been most recently announced by either S&P or Moody's, as the case may be, for
any class of long-term senior unsecured, non-credit enhanced debt issued by the
Company. For purposes of the foregoing:
(a) if no Public Debt Rating shall be available from either S&P or
Moody's, the Applicable Margin and the Applicable Percentage will be set in
accordance with Level 6 under the definition of "Applicable Margin" or
"Applicable Percentage", as the case may be;
(b) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin and the Applicable Percentage shall be
determined by reference to the available rating;
21
(c) if the ratings established by S&P and Moody's shall fall within
different levels, the Applicable Margin and the Applicable Percentage shall
be based upon the higher rating, provided that if the lower rating falls
--------
more than one level below the higher rating (or in any event if the higher
split rating is Level 5), then the Applicable Margin and the Applicable
Percentage shall be based on the rating set forth in the level under the
definition of "Applicable Margin" or "Applicable Percentage" immediately
----------------- ---------------------
above the level for such lower rating; and
(d) if any rating established by S&P or Moody's shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change.
"Purchase Money Lien" means any Lien on property, real or personal,
-------------------
acquired or constructed by the Company or any Subsidiary of the Company after
December 30, 1994:
(i) to secure the purchase price of such property;
(ii) that was existing on such property at the time of acquisition
thereof by the Company or such Subsidiary and assumed in connection with
such acquisition;
(iii) to secure Indebtedness otherwise incurred to finance the
acquisition or construction of such property (including, without
limitation, Indebtedness incurred to finance the cost of acquisition or
construction of such property within 24 months after such acquisition or
the completion of such construction); or
(iv) to secure any Indebtedness incurred in connection with any
extension, refunding or refinancing of Indebtedness (whether or not secured
and including Indebtedness under this Agreement) incurred, maintained or
assumed in connection with, or otherwise related to, the acquisition or
construction of such property;
provided in each case that (1) such Liens do not extend to or cover or otherwise
--------
encumber any property other than property acquired or constructed by the Company
and its Subsidiaries after December 30, 1994, and (2) such Liens do not cover
current assets of the Company or any of its Subsidiaries other than current
assets that relate solely to other property subject to such Lien.
"Quarterly Dates" means the last Business Day of each March, June,
---------------
September and December, commencing on the first such date to occur after the
Effective Date.
"Quoted Rate Swing Loan" has the meaning specified in Section 3.03(b).
----------------------
"Reference Banks" means Citibank, BNS and Chase.
---------------
"Register" has the meaning specified in Section 9.07(d).
--------
22
"Required Lenders" means Lenders having at least 51% of the aggregate
----------------
amount of the Commitments or, if the Commitments shall have terminated, Lenders
holding at least 51% of the sum of (a) the aggregate unpaid principal amount of
the Loans plus (b) the aggregate Available Amount of all Letters of Credit
----
(provided that, for purposes hereof, neither any Borrower, nor any of its
--------
Affiliates, if a Lender, shall be included in (i) the Lenders holding such
amount of the Loans or Available Amount of Letters of Credit or having such
amount of the Commitments or (ii) determining the aggregate unpaid principal
amount of the Loans or Available Amount of Letters of Credit or the total
Commitments). For purposes of this definition, the Available Amount of each
Letter of Credit shall be considered to be owed to the Lenders ratably according
to the amounts of their respective Revolving Loan Notes.
"Revolving Loan" means a Loan by a Lender to a Borrower as part of a
--------------
Revolving Loan Borrowing and refers to a Base Rate Loan or a Eurocurrency Rate
Loan, each of which shall be a "Type" of Revolving Loan.
----
"Revolving Loan Borrowing" means a borrowing consisting of
------------------------
simultaneous Revolving Loans of the same Type made by each of the Lenders
pursuant to Section 2.01.
"Revolving Loan Note" means a promissory note of a Borrower payable to
-------------------
the order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender resulting
from the Revolving Loans made by such Lender to such Borrower.
"S&P" means Standard & Poor's Ratings Services, a division of The
---
McGraw-Hill Companies, Inc., or any successor by merger or consolidation to its
business.
"Screen" means:
------
(i) in relation to LIBOR, Page 3750 of the Telerate Service of Bridge
Information Services (or any successor or substitute page, or any successor
to or substitute for such service, providing rate quotations comparable to
those currently provided on such page of such service, as determined by the
Administrative Agent from time to time for the purposes of providing
quotations of interest rates applicable to such Currency in the London
interbank market); and
(ii) in relation to EURIBOR, Page 248 of the Telerate Service of
Bridge Information Services (or any successor or substitute page, or any
successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as
determined by the Administrative Agent from time to time for the purposes
of providing quotations of interest rates applicable to Euros within the
member states of the European Union which are Participating Member States).
"Self-Insurance Program" means the self-insurance program (including
----------------------
related self-funded insurance programs) established and maintained by the
Company in the ordinary course of its business.
23
"Significant Shareholder" means any Person that:
-----------------------
(i) is either a Marriott Family Member or on the date hereof
possesses, directly or indirectly, and such possession has been publicly
disclosed, the power to vote 5% or more of the outstanding shares of common
stock of the Company,
(ii) is or hereafter becomes a spouse of or any other relative (by
blood, marriage or adoption) of a Person described in clause (i),
(iii) is or becomes a transferee of the interests of any of the
foregoing Person or Persons by descent or by trust or similar arrangement
intended as a method of descent, or
(iv) is (x) an employee benefit or stock ownership plan of the Company
or (y) a grantor trust established for the funding, directly or indirectly,
of the Company's employee benefit plans and programs.
"Single Employer Plan" of any Person means a single employer plan, as
--------------------
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
such Person or any of its ERISA Affiliates and no Person other than such Person
and its ERISA Affiliates or (b) was so maintained and in respect of which such
Person or any of its ERISA Affiliates could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"SLS Entity" means any of Marriott Senior Living Services, Inc. and
----------
Marriott Senior Living Services Investment 10, Inc. and each other Subsidiary of
the Company that owns or operates a senior living services facility.
"SPC" has the meaning specified in Section 9.07(a).
---
"Standby Letter of Credit" means any Letter of Credit issued under the
------------------------
Letter of Credit Facility, other than a Trade Letter of Credit.
"Subsidiary" of any Person means any corporation, partnership, limited
----------
liability company, joint venture, trust or estate of which more than 50% of (a)
the issued and outstanding capital stock having ordinary voting power to elect a
majority of the Board of Directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, limited liability
company or joint venture or (c) the beneficial interest in such trust or estate
is at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries; provided that so long as accounts of Avendra are
--------
not Consolidated, Avendra will not be treated as a Subsidiary of the Borrower or
a Subsidiary of any Subsidiary of the Borrower for purposes of this Agreement.
24
"Swap Transaction" means (a) any rate, basis, commodity, currency,
----------------
debt or equity swap, (b) any cap, collar or floor agreement, (c) any rate,
basis, commodity, currency, debt or equity exchange or forward agreement, (d)
any rate, basis, commodity, currency, debt or equity option, (e) any other
similar agreement, (f) any option to enter into any of the foregoing, (g) any
investment management, master or other agreement providing for any of the
foregoing and (h) any combination of any of the foregoing.
"Swing Loan" means a Loan made by (a) a Swing Loan Bank pursuant to
----------
Section 3.03 or (b) any Lender pursuant to Section 3.03.
"Swing Loan Bank" means each of Citibank, First Union National Bank
---------------
and Bank One , NA or, as to any Swing Loan Bank such other Lender as shall, with
the consent of such Swing Loan Bank, the Administrative Agent and the Company,
have assumed the obligations of such Swing Loan Bank with respect to any or all
of such Swing Loan Bank's Swing Loans (and its ability to make Swing Loans)
hereunder, and each as set forth in Schedule IV opposite such Swing Loan Bank's
Swing Loan limit amount.
"Swing Loan Borrowing" means a borrowing consisting of a Swing Loan
--------------------
made by a Swing Loan Bank.
"Swing Loan Facility" means, as to any Swing Loan Bank, an aggregate
-------------------
amount not to exceed at any time outstanding such aggregate amount as the
Company may separately agree in writing with such Swing Loan Bank and, as to all
Swing Loan Banks collectively, an aggregate amount not to exceed $150,000,000 at
any time outstanding.
"Swing Loan Rate" has the meaning specified in Section 3.03.
---------------
"Swing Loan Reduction" has the meaning specified in Section 2.01.
--------------------
"Target Operating Day" means any day that is not (i) a Saturday or
--------------------
Sunday, (ii) Christmas Day or New Year's Day or (iii) any other day on which the
Trans-European Automated Real-time Gross Settlement Express Transfer system (or
any successor settlement system) is not scheduled to operate (as determined by
the Administrative Agent).
"Taxes" has the meaning specified in Section 2.12(a).
-----
"Termination Date" of any Lender means the date five (5) years after
----------------
the Effective Date (as the same may be extended or changed pursuant to Section
2.06(b), 2.15 or 9.07(a)(vi)) or, if earlier, the date of termination in whole
of the Commitments pursuant to the second sentence of Section 2.06(a) or
pursuant to Section 7.01.
"Trade Letter of Credit" means any Letter of Credit that is issued
----------------------
under the Letter of Credit Facility for the benefit of a supplier to the Company
or any of its Subsidiaries to effect payment to the supplier.
25
"Treaty on European Union" means the Treaty of Rome of March 25, 1957,
------------------------
as amended by the Single European Act 1986 and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992, and came into force on November 1,
1993), as amended from time to time.
"Type" has the meaning specified in the definition of "Revolving
----
Loan".
"UCC" has the meaning specified in Section 7.02(e)(ii).
---
"Unused Commitments" means, at any time, the aggregate amount of the
------------------
Commitments then unused and outstanding after giving effect to the Competitive
Bid Loan Reduction, the Swing Loan Reduction and the Letter of Credit Reduction.
"Voting Stock" means capital stock issued by a corporation or
------------
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though the right
to so vote has been suspended by the happening of such contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
------------
ERISA.
"Wholly-Owned Subsidiary" of any Person means any Subsidiary of such
-----------------------
Person 100% of the Voting Stock of which (other than directors' qualifying
shares or other shares held to satisfy legal or regulatory requirements) are
directly or indirectly owned by such Person, or by one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person.
"Withdrawal Liability" has the meaning specified in Part 1 of Subtitle
--------------------
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
----------------
defined herein shall be construed in accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
SECTION 2.01. The Revolving Loans.
-------------------
(a) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Revolving Loans to the Company and any
Designated Borrower in Dollars or (in the case of any Eurocurrency Rate
Loan only) in any Alternate Currency from time
26
to time on any Business Day during the period from the Effective Date until
the Termination Date of such Lender in an aggregate amount as to all
Borrowers not to exceed at any time outstanding the amount of such Lender's
Commitment; provided that the aggregate amount of the Commitments of the
--------
Lenders shall be deemed used from time to time to the extent of (i) the
aggregate amount of Competitive Bid Loans then outstanding, (ii) the
aggregate amount of Swing Loans then outstanding and (iii) the aggregate
Available Amount of Letters of Credit and the aggregate amount of Letter of
Credit Loans then outstanding, and such deemed uses of the aggregate amount
of the Commitments shall be applied to the Lenders ratably according to
their respective Commitments as in effect from time to time (such deemed
uses of the aggregate amount of the Commitments with respect to (a)
Competitive Bid Loans being a "Competitive Bid Loan Reduction", (b) Swing
------------------------------
Loans being a "Swing Loan Reduction" and (c) the aggregate Available Amount
--------------------
of Letters of Credit and Letter of Credit Loans being a "Letter of Credit
----------------
Reduction").
---------
(b) Each Revolving Loan Borrowing shall be in an aggregate amount not
less than $10,000,000 or, in the case of Eurocurrency Rate Loans
denominated in an Alternate Currency, the Foreign Currency Equivalent
thereof (or, if less, an aggregate amount equal to the lesser of (x) the
difference between the aggregate amount of a proposed Competitive Bid Loan
Borrowing requested by the Company and the aggregate amount of Competitive
Bid Loans offered to be made by the Lenders and accepted by the Company in
respect of such Competitive Bid Loan Borrowing, if such Competitive Bid
Loan Borrowing is made on the same date as such Revolving Loan Borrowing
and (y) the then remaining Unused Commitments of the Lenders participating
in such Borrowing, as applicable) and (subject to Section 2.09(d)) shall
consist of Revolving Loans of the same Type in the same Currency made on
the same day by the Lenders ratably according to their respective
Commitments.
(c) Within the limits of each Lender's Commitment, each Borrower may
from time to time borrow, repay pursuant to Section 2.07 or prepay pursuant
to Section 2.10 and reborrow under this Section 2.01.
(d) For purposes of determining (i) whether the amount of any
Borrowing, together with all other Loans then outstanding, would exceed the
aggregate amount of the Commitments, and (ii) whether the aggregate
outstanding principal amount of the Loans is such as to require prepayment
under Section 2.07(e), the outstanding principal amount of any Loan that is
denominated in an Alternate Currency shall be deemed to be the Dollar
Equivalent of the Alternate Currency amount of such Loan.
SECTION 2.02. The Competitive Bid Loans.
-------------------------
(a) The Company may request the making of Competitive Bid Loan
Borrowings to any Borrower in Dollars or in any Alternate Currency from
time to time on any Business Day during the period from the Effective Date
until the date occurring 30 days
27
prior to the Final Termination Date in the manner set forth in Section
3.02, provided that, following the making of each Competitive Bid Loan
--------
Borrowing, the aggregate amount of the Loans then outstanding and the
aggregate Available Amount of the Letters of Credit then outstanding shall
not exceed the lesser of (i) the Current Aggregate Commitment and (ii) the
aggregate amount of the Commitments scheduled to be in effect on the
scheduled maturity date of the Competitive Bid Loans to be made as part of
such Borrowing.
(b) Within the limits and on the conditions set forth in this Section
2.02, each Borrower may from time to time borrow under this Section 2.02,
repay or prepay pursuant to subsection (c) below, and reborrow under this
Section 2.02, provided that a Competitive Bid Loan Borrowing shall not be
--------
made within three Business Days of the date of any other Competitive Bid
Loan Borrowing.
(c) Each Borrower shall repay to the Administrative Agent for the
account of each Lender which has made a Competitive Bid Loan to such
Borrower, or each other holder of a Competitive Bid Loan Note of such
Borrower, on the maturity date of each Competitive Bid Loan made to such
Borrower (such maturity date being that specified by the Company for
repayment of such Competitive Bid Loan in the related Notice of Competitive
Bid Loan Borrowing delivered pursuant to Section 3.02 and provided in the
Competitive Bid Loan Note evidencing such Competitive Bid Loan), the then
unpaid principal amount of such Competitive Bid Loan. Unless otherwise
agreed by the relevant Lender in its sole discretion, no Borrower shall
have the right to prepay any principal amount of any Competitive Bid Loan
of such Lender except, and then only on the terms specified by the Company
for such Competitive Bid Loan in the related Notice of Competitive Bid Loan
Borrowing delivered pursuant to Section 3.02 and set forth in the
Competitive Bid Loan Note evidencing such Competitive Bid Loan.
(d) Each Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Loan made to such Borrower from the date of such
Competitive Bid Loan to the date the principal amount of such Competitive
Bid Loan is repaid in full, at the rate of interest for such Competitive
Bid Loan specified by the Lender making such Competitive Bid Loan in its
notice with respect thereto delivered pursuant to Section 3.02, payable on
the interest payment date or dates specified by the Company for such
Competitive Bid Loan in the related Notice of Competitive Bid Loan
Borrowing delivered pursuant to Section 3.02, as provided in the
Competitive Bid Loan Note evidencing such Competitive Bid Loan.
(e) The indebtedness of each Borrower resulting from each Competitive
Bid Loan made to such Borrower as part of a Competitive Bid Loan Borrowing
shall be evidenced by a separate Competitive Bid Loan Note of such Borrower
payable to the order of the Lender making such Competitive Bid Loan.
SECTION 2.03. The Swing Loans. The Company may request each
---------------
Swing Loan Bank to make, and each Swing Loan Bank may from time to time, in its
sole discretion, make, on
28
the terms and conditions hereinafter set forth, Swing Loans to any Borrower in
Dollars from time to time on any Business Day during the period from the date of
the initial Borrowing until 60 days before the Final Termination Date in an
aggregate amount as to all Borrowers not to exceed at any time outstanding the
lesser of (i) the Swing Loan Facility and (ii) the then Unused Commitments of
Lenders having Termination Dates falling on or after the proposed maturity date
of such Swing Loan. Each Swing Loan Borrowing shall be in an amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
bear interest at the Base Rate or at the Swing Loan Rate for such Loan as
provided in Section 3.03. Within the limits of the Swing Loan Facility and the
Unused Commitments as aforesaid, each Borrower may borrow under this Section
2.03, repay pursuant to Section 2.07 or prepay pursuant to Section 2.10 and
reborrow under this Section 2.03.
SECTION 2.04. The Letters of Credit.
---------------------
(a) Prior to the date hereof, the Issuing Bank issued each of the
Existing Letters of Credit under the terms of the Existing Credit
Agreement. The Company and each other Borrower agree that effective on the
Effective Date, all Existing Letters of Credit shall for all purposes be
deemed to have been issued under this Agreement and shall be subject to the
provisions hereof (including, without limitation, this Section 2.04 and
Section 3.04).
(b) (i) The Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to issue letters of credit (such letters of credit,
together with the Existing Letters of Credit, the "Letters of Credit") for
-----------------
the account of the Company, or, at the direction of the Company, any of its
Subsidiaries or any other Person, from time to time on any Business Day
during the period from the Effective Date until 60 days before the Final
Termination Date in an aggregate Available Amount for all Letters of Credit
not to exceed at any time the lesser of (i) the Letter of Credit Facility
and (ii) the Unused Commitments of Lenders having Termination Dates falling
on or after the expiration date of such Letter of Credit. Each Letter of
Credit shall be denominated in Dollars.
(ii) No Letter of Credit shall have an expiration date (including
all rights of the Company or other account party or the beneficiary to
require renewal of, or to have automatically renewed, such Letter of
Credit) later than 30 days before the Final Termination Date (as in
effect on the date of issuance of the applicable Letter of Credit).
(iii) Any Standby Letter of Credit may provide that it will be
automatically renewed annually unless notice is given (1) by the
Company to the Issuing Bank not less than five Business Days prior to
the date of the automatic renewal of such Standby Letter of Credit,
that such Letter of Credit will not be renewed, or (2) by the Issuing
Bank to the Company not less than thirty Business Days prior to the
date of the automatic renewal of such Standby Letter of Credit, of its
election not to renew such Letter of Credit; provided, however, that
-------- -------
the Issuing Bank shall not give such a notice except (A) at any time
during the
29
continuance of any Default or (B) if any automatic renewal would
extend a Letter of Credit expiration date to later than 30 days prior
to the Final Termination Date. In either case in which such notice is
given pursuant to the preceding sentence, such Letter of Credit will
expire on the date it would otherwise have been automatically renewed,
provided that the terms of such Letter of Credit may (y) require the
--------
Issuing Bank forthwith to give to the named beneficiary of such Letter
of Credit notice of any notice given pursuant to the preceding
sentence and (z) permit the beneficiary, upon receipt of the notice
under clause (y), to draw under such Letter of Credit prior to the
date such Letter of Credit would otherwise have been automatically
renewed.
(iv) Within the limits of the Letter of Credit Facility, and
subject to the terms hereof, the Company may request the issuance of
Letters of Credit under Section 3.04, repay or prepay before demand
any Letter of Credit Loans resulting from drawings thereunder pursuant
to Section 2.07(d) and request the issuance of additional Letters of
Credit under Section 3.04.
SECTION 2.05. Fees.
----
(a) Facility Fees. The Company agrees to pay to the Administrative
-------------
Agent for the account of each Lender a facility fee on the average daily
amount (whether used or unused) of such Lender's Commitment (computed
without regard to any Competitive Bid Loan Reduction, any Swing Loan
Reduction or any Letter of Credit Reduction) from the Effective Date (in
the case of each Bank), and from the effective date specified in the
Acceptance pursuant to which it became a Lender (in the case of each other
Lender), until the Termination Date of such Lender, payable in arrears on
each Quarterly Date during the term of such Lender's Commitment, and on the
Termination Date of such Lender, at a rate per annum equal to the
Applicable Percentage in effect from time to time.
(b) Letter of Credit Compensation.
-----------------------------
(i) The Company agrees to pay to the Letter of Credit Agent for
the account of each Lender a commission on such Lender's pro rata
--- ----
share of the average daily aggregate Available Amount of (A) all
Standby Letters of Credit outstanding from time to time and (B) all
Trade Letters of Credit outstanding from time to time, in each case at
the Applicable Margin in effect from time to time for Eurocurrency
Rate borrowings, payable in arrears quarterly on each Quarterly Date
and on the Termination Date of such Lender, commencing on the first
Quarterly Date after the date hereof.
(ii) The Company agrees to pay to the Issuing Bank, for its own
account, (x) a fronting fee with respect to each Letter of Credit
issued by the Issuing Bank, payable quarterly in arrears on each
Quarterly Date during which the Issuing Bank has acted in such
capacity, and on the Final Termination Date (if the Issuing Bank acted
in such capacity up to such date), in an amount equal to the product
of
30
0.125% per annum of the average daily Available Amount of such Letter
of Credit multiplied by the actual number of days such Letter of
Credit was outstanding in such period, divided by 365 or 366, as
applicable, and (y) such customary fees and charges in connection with
the issuance or administration of each Letter of Credit as may be
agreed in writing between them from time to time.
(c) Competitive Bid Loan Fee. The Company agrees to pay to the
------------------------
Administrative Agent for its own account a fee in the amount of $2,500 for
each request made by the Company for a Competitive Bid Loan Borrowing
pursuant to Section 3.02.
(d) Utilization Fees. The Company agrees to pay to the Administrative
----------------
Agent for the account of each Lender a utilization fee on the amount of
outstanding Loans of such Lender for each day that the aggregate
outstanding principal amount of Loans shall exceed 25% of the aggregate
amount of the Commitments at a rate per annum equal to the Applicable
Percentage in effect from time to time, payable on each day on which
interest is payable hereunder, and computed on the same basis as interest
on each relevant Loan.
(e) Other Fees. The Company agrees to pay to the Administrative Agent
----------
and the Letter of Credit Agent for each of their respective accounts such
fees as from time to time may be separately agreed between the Company and
the applicable Person.
SECTION 2.06. Reductions and Increases of the Commitments.
-------------------------------------------
(a) Commitment Reductions, Etc. The Commitment of each Lender shall be
--------------------------
automatically reduced to zero on the Termination Date of such Lender. In
addition, the Company shall have the right, upon at least three Business
Days' notice to the Administrative Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that (i) the aggregate amount of the Commitments of the
--------
Lenders shall not be reduced pursuant to this sentence to an amount which
is less than the aggregate principal amount of the Loans then outstanding
and the aggregate Available Amount of the Letters of Credit then
outstanding and (ii) each partial reduction shall be in an aggregate amount
of at least $10,000,000. Each Commitment reduction pursuant to this Section
2.06(a) shall be permanent (subject, however, to the rights of the Company
under Section 2.06(b)).
(b) Optional Increases of the Commitments.
-------------------------------------
(i) Not more than twice in any calendar year, the Company may propose
to increase the Current Aggregate Commitment by an aggregate amount of not
less than $50,000,000 or an integral multiple of $5,000,000 in excess
thereof (a "Proposed Aggregate Commitment Increase") in the manner set
--------------------------------------
forth below, provided that:
--------
(1) no Default shall have occurred and be continuing either as of
the date on which the Company shall notify the Administrative Agent of
its request to
31
increase the aggregate Commitments or as of the related Increase Date
(as hereinafter defined); and
(2) after giving effect to any such increase, the aggregate
amount of the Commitments shall not exceed $1,750,000,000.
(ii) The Company may request an increase in the aggregate amount of
the Commitments by delivering to the Administrative Agent a notice (an
"Increase Notice"; the date of delivery thereof to the Administrative Agent
---------------
being the "Increase Notice Date") specifying (1) the Proposed Aggregate
--------------------
Commitment Increase, (2) the proposed date (the "Increase Date") on which
-------------
the Commitments would be so increased (which Increase Date may not be fewer
than 30 nor more than 60 days after the Increase Notice Date) and (3) the
New Lenders, if any, to whom the Company desires to offer the opportunity
to commit to all or a portion of the Proposed Aggregate Commitment
Increase. The Administrative Agent shall in turn promptly notify each
Lender of the Company's request by sending each Lender a copy of such
notice.
(iii) Not later than the date five days after the Increase Notice
Date, the Administrative Agent shall notify each New Lender, if any,
identified in the related Increase Notice of the opportunity to commit to
all or any portion of the Proposed Aggregate Commitment Increase. Each such
New Lender may irrevocably commit to all or a portion of the Proposed
Aggregate Commitment Increase (such New Lender's "Proposed New Commitment")
-----------------------
by notifying the Administrative Agent (which shall give prompt notice
thereof to the Company) before 11:00 A.M. (New York City time) on the date
that is 10 days after the Increase Notice Date; provided that:
--------
(1) the Proposed New Commitment of each New Lender shall be in an
aggregate amount not less than $15,000,000; and
(2) each New Lender that submits a Proposed New Commitment shall
execute and deliver to the Administrative Agent (for its acceptance
and recording in the Register) a New Commitment Acceptance in
accordance with the provisions of Section 9.07 hereof, together with a
processing and recordation fee of $2,500.
(iv) If the aggregate Proposed New Commitments of all of the New
Lenders shall be less than the Proposed Aggregate Commitment Increase, then
(unless the Company otherwise requests) the Administrative Agent shall, on
or prior to the date that is 15 days after the Increase Notice Date, notify
each Lender of (x) the opportunity to so commit to all or any portion of
the Proposed Aggregate Commitment Increase not committed to by New Lenders
pursuant to Section 2.06(b)(iii) and (y) the then-current Final Termination
Date. Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to commit to all or a portion of such remainder (such
Lender's "Proposed Increased Commitment") by notifying the Administrative
-----------------------------
Agent (which shall give prompt notice
32
thereof to the Company) no later than 11:00 A.M. (New York City time) on
the date five days before the Increase Date.
(v) If the aggregate amount of Proposed New Commitments and Proposed
Increased Commitments (such aggregate amount, the "Total Committed
---------------
Increase") equals or exceeds $50,000,000, then, subject to the conditions
--------
set forth in Section 2.06(b)(i):
(1) effective on and as of the Increase Date, the Current
Aggregate Commitment shall be increased by the Total Committed
Increase (provided that the aggregate amount of the Commitments shall
--------
in no event be increased pursuant to this Section 2.06(b) to more than
$1,750,000,000) and shall be allocated among the New Lenders and the
Lenders as provided in Section 2.06(b)(vi);
(2) effective on and as of the Increase Date, the Termination
Date of each New Lender that offers a Proposed New Commitment and of
each Increasing Lender shall be changed to the Final Termination Date
(notwithstanding any earlier Termination Date for such Lender which
may then be in effect); and
(3) on the Increase Date, if any Revolving Loans are then
outstanding, the Borrowers shall borrow Revolving Loans from all or
certain of the Lenders and/or (subject to compliance by the Company
with Section 9.04(c)) prepay Revolving Loans of all or certain of the
Lenders such that, after giving effect thereto, the Revolving Loans
(including, without limitation, the Types, Currencies and Interest
Periods thereof) shall be held by the Lenders (including for such
purposes New Lenders) ratably in accordance with their respective
Commitments (subject, however, to Section 2.09(d)).
------- -------
If the Total Committed Increase is less than $50,000,000, then the Current
Aggregate Commitment shall not be changed pursuant to this Section 2.06(b).
(vi) The Total Committed Increase shall be allocated among New Lenders
having Proposed New Commitments and Lenders having Proposed Increased
Commitments as follows:
(1) If the Total Committed Increase shall be at least $50,000,000
and less than or equal to the Proposed Aggregate Commitment Increase,
then (x) the initial Commitment of each New Lender shall be such New
Lender's Proposed New Commitment and (y) the Commitment of each Lender
shall be increased by such Lender's Proposed Increased Commitment.
(2) If the Total Committed Increase shall be greater than the
Proposed Aggregate Commitment Increase, then the Total Committed
Increase shall be allocated:
33
(x) first to New Lenders (to the extent of their respective
-----
Proposed New Commitments) in such a manner as the Company and the
Administrative Agent shall agree; and
(y) then to Lenders on a pro rata basis based on the ratio of
----
each Lender's Proposed Increased Commitment (if any) to the
aggregate amount of the Proposed Increased Commitments of all of
the Lenders.
(vii) No increase in the Commitments contemplated hereby shall become
effective until the Administrative Agent shall have received (x) Revolving
Loan Notes payable by each of the Borrowers to each New Lender and each
Increasing Lender, and (y) evidence satisfactory to the Administrative
Agent (including an update of paragraphs 2 and 4 of the opinion of counsel
provided pursuant to Section 4.01(a)(iv)) that such increases in the
Commitments, and borrowings thereunder, have been duly authorized.
SECTION 2.07. Repayment.
---------
(a) Revolving Loans. Each Borrower shall repay the principal amount of
---------------
each Revolving Loan made by each Lender to such Borrower, in the Currency
of such Revolving Loan, and each Revolving Loan made by such Lender shall
mature, on the last day of the Interest Period for such Revolving Loan.
(b) Competitive Bid Loans. Each Borrower shall repay the principal
---------------------
amount of each Competitive Bid Loan made by each Lender to such Borrower,
in the Currency of such Loan, as provided in Section 2.02(c).
(c) Swing Loans. Each Borrower shall repay to each Swing Loan Bank
-----------
(with notice to the Administrative Agent), and to the Administrative Agent
for the account of each other Lender that has made a Swing Loan, the
outstanding principal amount of each Swing Loan to such Borrower made by
each of them on the earlier of the maturity date specified in the
applicable Notice of Swing Loan Borrowing (which maturity shall be no later
than the seventh day after the requested date of such Borrowing) and the
Termination Date of such Lender.
(d) Letter of Credit Loans. The Company shall repay to the Letter of
----------------------
Credit Agent for the account of the Issuing Bank and each other Lender
which has made a Letter of Credit Loan (including, without limitation, any
Letter of Credit Loan arising out of payment of a Letter of Credit issued
for the account of a Person other than the Company) the outstanding
principal amount of each Letter of Credit Loan made by each of them on
demand by the holder thereof (made in writing, or orally and confirmed
immediately in writing, by telecopier, telex or cable) and, in any event,
on the Final Termination Date (and, with respect to each Lender, on the
Termination Date of such Lender). The Company may prepay any Letter of
Credit Loan at any time. The Issuing Bank shall give notice to the Company
of the making of any Letter of Credit Loan by the Issuing Bank and of the
sale or assignment of any Letter of Credit Loan by it pursuant to
34
Section 3.04(b), and each Lender shall give notice to the Company of any
sale or assignment of any Letter of Credit Loan by it, in each case on the
date on which such transaction takes place.
(e) Certain Prepayments.
-------------------
(i) If at any time (1) the sum of (x) the aggregate
amount of all Loans (for which purpose the amount of any Loan
that is denominated in an Alternate Currency shall be deemed
to be the Dollar Equivalent thereof as of the date of
determination) plus (y) the Available Amount of all Letters of
----
Credit exceeds (2) 103% of the then Current Aggregate
Commitment, the Administrative Agent shall use all reasonable
efforts to give prompt written notice thereof to the Company,
specifying the amount to be prepaid under this clause (i), and
the Company shall, within two Business Days of the date of
such notice, prepay the Loans, or cause Loans to be prepaid,
in an amount so that after giving effect thereto the aggregate
outstanding principal amount of the Loans (determined as
aforesaid) plus the Available Amount of all Letters of Credit
does not exceed the aggregate amount of the Commitments;
provided that any such payment shall be accompanied by any
--------
amounts payable under Section 9.04(c). The determinations of
the Administrative Agent hereunder shall be conclusive and
binding on the Company and the other Borrowers in the absence
of manifest error.
(ii) In addition, if on the last day of any Interest
Period the aggregate outstanding principal amount of the Loans
(after giving effect to any Loans being made to repay Loans
maturing on that date) plus the Available Amount of all
----
Letters of Credit would exceed 100% of the aggregate amount of
the Commitments, the Administrative Agent shall use all
reasonable efforts to give prompt written notice thereof to
the Company, specifying the amount to be prepaid under this
clause (ii), and the Company shall, within two Business Days
of the date of such notice, prepay the Loans, or cause Loans
to be prepaid, or reduce the requested Loans in such amounts
that after giving effect to such action the aggregate
outstanding principal amount of the Loans (after giving effect
to any Loans being made to repay Loans maturing on that date)
plus the Available Amount of all Letters of Credit does not
----
exceed the aggregate amount of the Commitments; provided that
--------
any such payment shall be accompanied by any amounts payable
under Section 9.04(c). The determinations of the
Administrative Agent hereunder shall be conclusive and binding
on the Company and the other Borrowers in the absence of
manifest error.
SECTION 2.08. Interest.
--------
(a) Ordinary Interest. Each Borrower shall pay interest on the
-----------------
unpaid principal amount of each Loan made by each Lender to such
Borrower, in the Currency of such Loan, from the date of such Loan
until such principal amount shall be paid in full, at the following
rates per annum:
35
(i) Base Rate Loans, Swing Loans and Letter of Credit
-------------------------------------------------
Loans. If such Loan is a Revolving Loan, a Swing Loan (other
-----
than a Quoted Rate Swing Loan) or a Letter of Credit Loan
which bears interest at the Base Rate, a rate per annum equal
at all times to the Base Rate in effect from time to time,
payable on (A) each Quarterly Date while such Revolving Loan
or Swing Loan is outstanding or (B) the last day of each month
such Letter of Credit Loan is outstanding, and, in each case,
on the date such Revolving Loan, Swing Loan or Letter of
Credit Loan shall be paid in full.
(ii) Eurocurrency Rate Loans. If such Revolving Loan
-----------------------
is a Eurocurrency Rate Loan, a rate per annum equal at all
times during each Interest Period for such Revolving Loan to
the sum of the Eurocurrency Rate for such Interest Period plus
----
the Applicable Margin plus Mandatory Costs, payable on the
----
last day of such Interest Period and, if such Interest Period
has a duration of more than three months, at three-month
intervals following the first day of such Interest Period.
(b) Default Interest. Notwithstanding the foregoing, each
----------------
Borrower shall pay interest on (x) the unpaid principal amount of each
Loan made by each Lender to such Borrower that is not paid when due,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to two percentage points
(2%) per annum above the rate per annum required to be paid on such
Loan pursuant to said clause (a)(i) or (a)(ii) and (y) the amount of
any interest, fee or other amount payable hereunder that is not paid
when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times
to two percentage points (2%) per annum above the rate per annum
required to be paid on Base Rate Loans pursuant to clause (a)(i) above.
SECTION 2.09. Interest Rate Determinations.
----------------------------
(a) Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining
each Eurocurrency Rate. If any one or more of the Reference Banks shall
not furnish such timely information to the Administrative Agent for the
purpose of determining any such interest rate, the Administrative Agent
shall determine such interest rate on the basis of timely information
furnished by the remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice to the
Company and the Lenders of the applicable interest rate determined by
the Administrative Agent for purposes of Section 2.08(a)(i) or (ii),
and the applicable rate, if any, displayed on the relevant Screen or
furnished by each Reference Bank, as the case may be, for the purpose
of determining the applicable interest rate under Section 2.08(a)(ii).
36
(c) If prior to 10:00 A.M. (New York City time) on any date on
which an interest rate is to be determined pursuant to (a) the proviso
to the definition of clause (a) of "Eurocurrency Rate" relating to
LIBOR Loans, the Administrative Agent receives notice from two or more
of the Reference Banks that deposits in the relevant Currency are not
being offered by such Reference Bank or Banks to prime banks in the
London (or, in the case of Pounds Sterling, Paris) interbank market for
the applicable Interest Period or in the applicable amounts or (b) the
provision in the definition of clause (b) of "Eurocurrency Rate"
relating to EURIBOR Loans, the Administrative Agent receives notice
from two or more of the Reference Banks that deposits in the Euros are
not being offered by such Reference Bank or Banks to prime banks in the
European interbank market for the applicable Interest Period or in the
applicable amounts, the Administrative Agent shall so notify the
Company of such circumstances, whereupon the right of the Company to
select Eurocurrency Rate Loans in such Currency for any requested
Revolving Loan Borrowing or any subsequent Revolving Loan Borrowing
shall be suspended until the first date on which the circumstances
causing such suspension cease to exist. If the Company shall not, in
turn, before 11:00 A.M. (New York City time) on such date notify the
Administrative Agent that its Notice of Revolving Loan Borrowing with
respect to which such Eurocurrency Rate was to be determined shall be
converted to a Notice of Revolving Loan Borrowing for Eurocurrency Rate
Loan in a different Currency or a Base Rate Loan, such Notice of
Revolving Loan Borrowing shall be deemed to be canceled and of no force
or effect, and Company shall not be liable to the Administrative Agent
or any Lender with respect thereto except as set forth in Section
3.01(c). In the event of such a suspension, the Administrative Agent
shall review the circumstances giving rise to such suspension at least
weekly and shall notify the Company and the Lenders promptly of the end
of such suspension, and thereafter the Borrowers shall be entitled, on
the terms and subject to the conditions set forth herein, to borrow
Eurocurrency Rate Loans in such Currency.
(d) Notwithstanding anything in this Agreement to the
contrary, no Lender whose Termination Date falls prior to the last day
of any Interest Period for any Eurocurrency Rate Loan (a "Relevant
--------
Lender") shall participate in such Loan. Without limiting the
------
generality of the foregoing, no Relevant Lender shall (i) participate
in a Borrowing of any Eurocurrency Rate Loan having an initial Interest
Period ending after such Lender's Termination Date, (ii) have any
outstanding Eurocurrency Rate Loan continued for a subsequent Interest
Period if such subsequent Interest Period would end after such Lender's
Termination Date or (iii) have any outstanding Base Rate Loan Converted
into a Eurocurrency Rate Loan if such Eurocurrency Rate Loan would have
an initial Interest Period ending after such Lender's Termination Date.
If any Relevant Lender has outstanding a Eurocurrency Rate Loan that
cannot be continued for a subsequent Interest Period pursuant to clause
(ii) above or has outstanding a Base Rate Loan that cannot be Converted
into a Eurocurrency Rate Loan pursuant to clause (iii) above, such
Lender's ratable share of such Eurocurrency Rate Loan (in the case of
said clause (ii)) shall be repaid by the relevant Borrower on the last
day of its then current Interest Period and such Lender's ratable share
of such Base Rate Loan (in the case of said clause (iii)) shall be
repaid by the relevant Borrower on the day on which the Loans of
Lenders unaffected
37
by said clause (iii) are so Converted. Subject to the terms and
conditions of this Agreement, the Borrowers may fund the repayment of
the Relevant Lenders' ratable shares of such Eurocurrency Rate Loans
and Base Rate Loans by borrowing from Lenders hereunder that are not
Relevant Lenders.
SECTION 2.10. Prepayments.
-----------
(a) The Borrowers shall have no right to prepay any principal
amount of any Revolving Loan or Swing Loan other than as provided in
subsection (b) below.
(b) Each Borrower may, (i) upon at least the number of
Business Days' prior notice specified in the first sentence of Section
3.01(a) with respect to any Revolving Loan of the same Type, or (ii)
upon notice by no later than 11:00 A.M. (New York City time) on the
date of prepayment of any Swing Loan, in either case given to the
Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given, such Borrower
shall, prepay the outstanding principal amounts of the Loans made to
such Borrower comprising part of the same Revolving Loan Borrowing or
Swing Loan Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount
prepaid; provided, however, that (x) each partial prepayment shall be
-------- -------
in an aggregate principal amount not less than $10,000,000 (or
$5,000,000 in the case of Swing Loans) or an integral multiple of
$1,000,000 in excess thereof (or the Foreign Currency Equivalent of
such respective amounts) and (y) if any prepayment of any Eurocurrency
Rate Loans shall be made on a date which is not the last day of an
Interest Period for such Loans (or on a date which is not the maturity
date of such Swing Loans), such Borrower shall also pay any amounts
owing to each Lender pursuant to Section 9.04(c) so long as such Lender
makes written demand upon such Borrower therefor (with a copy of such
demand to the Administrative Agent) within 20 Business Days after such
prepayment.
(c) Upon the occurrence of a Change of Control, if so
requested in writing by the Required Lenders through the Administrative
Agent within sixty (60) days after the Company notifies the
Administrative Agent of the occurrence of such Change of Control, (i)
the Company shall, on a day not later than five Business Days after the
date of such request, prepay and/or cause to be prepaid the full
principal of and interest on the Loans and the Notes and all other
amounts whatsoever payable under this Agreement (including without
limitation amounts payable under Section 9.04(c) as a result of such
prepayment) and provide cash collateral for all outstanding Letters of
Credit as provided in Section 7.02 (as if an Event of Default had
occurred and were continuing) and (ii) the Commitments shall, on the
date of such request, forthwith terminate.
(d) If (i) the obligations of the Company under Article X with
respect to any outstanding Guaranteed Obligations owing by any
Designated Borrower (herein, the "Affected Borrower") shall for any
-----------------
reason (x) be terminated, (y) cease to be in full force and effect or
(z) not be the legal, valid and binding obligations of the Company
enforceable against the Company in accordance with its terms, and (ii)
such condition
38
continues unremedied for 15 days after written notice thereof shall
have been given to the Company by the Administrative Agent or any
Lender, then the Affected Borrower shall, no later than the 15th day
after the date of such notice, prepay (and the Company shall cause to
be prepaid) the full principal of and interest on the Loans owing by,
and the Notes payable by, such Affected Borrower and all other amounts
whatsoever payable hereunder by such Affected Borrower (including,
without limitation, all amounts payable under Section 9.04(c) as a
result of such prepayment).
SECTION 2.11. Payments and Computations.
-------------------------
(a) (i) Except to the extent otherwise provided herein, all
payments of principal of and interest on Loans made in
Dollars, and all other amounts (other than the principal of
and interest on any Loan denominated in an Alternate Currency)
payable by a Borrower under this Agreement and the Notes,
shall be made in Dollars, and all payments of principal of and
interest on Loans denominated in an Alternate Currency shall
(subject to Section 2.11(e)) be made in such Alternate
Currency, in each case in immediately available funds, without
deduction, setoff or counterclaim, to the Administrative
Agent's Account for the relevant Currency, not later than
11:00 A.M. (New York City time) (in the case of Loans
denominated in Dollars and other amounts payable in Dollars)
or 11:00 A.M. Local Time in the location of the Administrative
Agent's Account (in the case of Loans denominated in an
Alternate Currency), on the day when due, provided that if a
--------
new Loan is to be made by any Lender to any Borrower on a date
on which such Borrower is to repay any principal of an
outstanding Loan of such Lender in the same Currency, such
Lender shall apply the proceeds of such new Loan to the
payment of the principal to be repaid and only an amount equal
to the difference between the principal to be borrowed and the
principal to be repaid shall be made available by such Lender
to the Administrative Agent as provided in Article III or paid
by such Borrower to the Administrative Agent pursuant to this
Section 2.11, as the case may be.
(ii) The Administrative Agent will promptly
thereafter cause to be distributed like funds relating to the
payment of principal or interest or fees ratably (other than
amounts payable pursuant to Section 2.02, 2.09(d), 2.12,
2.15(c) or 3.05) to the Lenders entitled thereto for the
account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount payable
to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with
the terms of this Agreement.
(iii) Upon its acceptance of an Acceptance and
recording of the information contained therein in the Register
pursuant to Section 9.07(d), from and after the effective date
specified in such Acceptance the Administrative Agent shall
make all payments hereunder and under the Notes in respect of
the interest assigned or assumed thereby to the Lender
assignee or New Lender thereunder (as
39
the case may be). The parties to each Assignment and
Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest based on the Base Rate and of
facility fees and letter of credit commission shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurocurrency
Rate or the Federal Funds Rate shall be made by the Administrative
Agent on the basis of a year of 360 days, and all computations of
utilization fees shall be as specified in Section 2.05(d), in each case
for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or fees
are payable. Each determination by the Administrative Agent of an
interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of
interest, facility fee or letter of credit commission, as the case may
be; provided, however, if such extension would cause payment of
-------- -------
interest on or principal of Eurocurrency Rate Loans to be made in the
next following calendar month, such payment shall be made on the next
preceding Business Day.
(d) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to the
Lenders hereunder that such Borrower will not make such payment in
full, the Administrative Agent may assume that such Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent that such Borrower
shall not have so made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with interest
thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(e) Anything in Sections 2.07 or 2.08 to the contrary
notwithstanding, and without prejudice to Sections 2.08(b) or 7.01(a),
if any Borrower shall fail to pay any principal or interest denominated
in an Alternate Currency within one Business Day after the due date
therefor in the case of principal and three Business Days after the due
date therefor in the case of interest (without giving effect to any
acceleration of maturity under Article VII), the amount so in default
shall automatically be redenominated in Dollars on the day one Business
Day after the due date therefor in the case of a principal payment and
three Business Days after the due date therefor in the case of an
interest payment in an amount equal to the Dollar Equivalent of such
principal or interest.
40
SECTION 2.12. Taxes.
-----
(a) Any and all payments by each Borrower hereunder or under
the Notes shall be made, in accordance with Section 2.11, free and
clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each
---------
Lender, the Issuing Bank and each Agent, taxes imposed on or measured
by its net income (including alternative minimum taxable income), and
franchise taxes imposed on it, by any jurisdiction under the laws of
which such Person is organized or in which such Person is resident or
doing business, or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If any
-----
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Notes to any such
Person, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such
Person receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made
hereunder or under the Notes or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, the
Notes or the other Loan Documents (hereinafter referred to as "Other
-----
Taxes").
-----
(c) Each Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.12) paid in good
faith by such Lender or the Administrative Agent (as the case may be)
and any liability (including, without limitation, penalties, additions
to tax, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted; provided, however, that (i) no Borrower shall be
-------- -------
liable to any Person for any liability arising from or with respect to
Taxes or Other Taxes, which results from the gross negligence or
willful misconduct of the Administrative Agent or such Lender, (ii) so
long as no Event of Default has occurred and is continuing, the
Administrative Agent or such Lender, as applicable, shall use its
reasonable best efforts to cooperate with each Borrower in contesting
any Taxes or Other Taxes which such Borrower reasonably deems to be not
correctly or legally asserted or otherwise not due and owing and (iii)
no Borrower shall be liable to the Administrative Agent or such Lender
(as the case may be) for any such liability arising prior to the date
120 days prior to the date on which such Person first makes written
demand upon such Borrower for indemnification therefor. This
indemnification shall be made within 30 days from the
41
date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) Within 30 days after the date of any payment of Taxes by a
Borrower, such Borrower will furnish to the Administrative Agent, at
its address referred to in Section 9.02, the original or a certified
copy of a receipt evidencing payment thereof.
(e)(i) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its
execution and delivery of this Agreement in the case of each
Bank and on the date of the Acceptance pursuant to which it
becomes a Lender in the case of each other Lender, on or
before the date that such form expires or becomes obsolete or
after the occurrence of any event within the control of such
Lender (including a change in Applicable Lending Office but
not including a change in law) requiring a change in the most
recent form so delivered by it, and from time to time
thereafter if requested in writing by the Company (but only so
long thereafter as such Lender remains lawfully able to do
so), shall provide the Company with either Internal Revenue
Service form W-8BEN or W-8ECI, as appropriate, or any
successor form prescribed by the Internal Revenue Service,
certifying in the case of form W-8BEN that such Lender is
either (i) entitled to benefits under an income tax treaty to
which the United States is a party that reduces the rate of
withholding tax on payments under this Agreement or (ii) is a
Portfolio Interest Eligible Non-Bank or certifying in the case
of form W-8ECI that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade
or business in the United States. If the form provided by a
Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax
rate in excess of zero (or if such Lender cannot provide at
such time such form because it is not entitled to reduced
withholding under a treaty and the payments are not
effectively connected income), withholding tax at such rate
(or at the then existing U.S. statutory rate if the Lender
cannot provide such a form) shall be considered excluded from
"Taxes" as defined in Section 2.12(a) unless and until such
Lender provides the appropriate form certifying that a zero
rate applies, whereupon withholding tax at such zero rate only
shall be considered excluded from Taxes for periods governed
by such form; provided, however, that, if at the date of the
-------- -------
Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, the Lender assignor was in
compliance with the provisions of Section 9.07(h) and was
entitled to payments under Section 2.12(a) in respect of
United States withholding tax with respect to interest paid at
such date, then, to such extent, the term "Taxes" shall
-----
include (in addition to withholding taxes that may be imposed
in the future or other amounts otherwise includable in Taxes)
United States interest withholding tax, if any, applicable
with respect to the Lender assignee on such date. If any form
or document referred to in this Section 2.12(e) requires the
disclosure of information, other than information necessary to
compute the tax payable and information required on the date
hereof by Internal Revenue Service form W-8BEN or W-8ECI, that
the relevant Lender considers to
42
be confidential, such Lender shall give notice thereof to the
Company and shall not be obligated to include in such form or
document such confidential information. For purposes of this
paragraph (e) the term "Portfolio Interest Eligible Non-Bank"
------------------------------------
means a Lender that certifies in form and substance reasonably
satisfactory to the Borrower that (i) it is not a bank within
the meaning of Code section 881(c)(3)(A), (ii) it is not a 10%
shareholder of the Borrower within the meaning of Code section
881(c)(3)(B) and (iii) it is not a controlled foreign
corporation related to the Borrower within the meaning of Code
section 881(c)(3)(C).
(ii) In addition, upon the reasonable request of the
Company (through the Administrative Agent) on behalf of any
Borrower that is not a U.S. Borrower, each Lender will use all
reasonable efforts to provide to such Borrower (if it can do
so without material cost to such Lender) such forms or other
documentation as may be requested by such Borrower in order to
cause interest on Loans to such Borrower, to the fullest
extent permitted by applicable law, to be subject to a reduced
rate of withholding under the laws of the jurisdiction of
organization of such Borrower; and if any such form or
document requires the disclosure of information, other than
information necessary to compute the tax payable and
information required on the date hereof, that the relevant
Lender considers to be confidential, such Lender shall give
notice thereof to the Company and shall not be obligated to
include in such form or document such confidential
information.
(f) For any period with respect to which a Person that is
required pursuant to Section 2.12(e) to provide a Borrower with any
documentation described therein but has failed to provide a Borrower
with such documentation or notice that it cannot provide such form or
other documentation (other than if such failure is due to a change in
----------
law occurring subsequent to the date on which a form or other
documentation originally was required to be provided, or if such form
or other documentation otherwise is not required under the first
sentence of subsection (e) above), such Person shall not be entitled to
indemnification under Section 2.12(a) with respect to Taxes; provided,
--------
however, that should a Lender become subject to Taxes because of its
-------
failure to deliver a form or other documentation required hereunder,
the relevant Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.12 shall use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if the making
of such a change would avoid the need for, or reduce the amount of, any
such additional amounts that may thereafter accrue and would not, in
the reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender.
(h) Notwithstanding any contrary provisions of this Agreement,
in the event that a Lender that originally provided such form or other
documentation as may be required under Section 2.12(e) thereafter
ceases to qualify for complete exemption from
43
withholding tax, such Lender may assign its interest under this
Agreement to any Eligible Assignee and such assignee shall be entitled
to the same benefits under this Section 2.12 as the assignor provided
that the rate of withholding tax applicable to such assignee shall not
exceed the rate then applicable to the assignor.
(i) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 2.12 shall survive the payment in
full of principal and interest hereunder and under the Notes and the
termination of the Commitments.
(j) If a Borrower is required to pay any Lender any Taxes
under Section 2.12(c), such Lender shall be an "Affected Person", and
---------------
the Company shall have the rights set forth in Section 3.08 to replace
such Affected Person.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall
------------------------
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Loans, the Swing
Loans or the Letter of Credit Loans made by it (other than pursuant to Section
2.09(d), 2.12, 2.15(c), 3.05, 3.08 or 9.04(c)) in excess of its ratable share of
payments on account of the Revolving Loans, the Swing Loans or the Letter of
Credit Loans obtained by all the Lenders, such Lender shall forthwith purchase
from the other Lenders such participations in the Revolving Loans, the Swing
Loans or the Letter of Credit Loans made by them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them,
provided, however, that, if all or any portion of such excess payment is
-------- -------
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.13 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.
SECTION 2.14. Conversion of Revolving Loans.
-----------------------------
(a) Optional. Each Borrower may on any Business Day, upon
--------
notice given to the Administrative Agent not later than 12:00 noon (New
York City time) on (x) the third (or the fourth, in the case of
Eurocurrency Rate Loans denominated in an Alternate Currency) Business
Day prior to the date of the proposed Conversion into Eurocurrency Rate
Loans and (y) the first Business Day prior to the date of the proposed
Conversion into Base Rate Loans, and, in each case, subject to the
provisions of Section 3.05, Convert all or any portion of the Revolving
Loans of one Type in the same Currency comprising the same Revolving
Loan Borrowing into Revolving Loans of the other Type in the same
Currency; provided, however, that any Conversion of Eurocurrency Rate
-------- -------
44
Loans into Base Rate Loans shall be made only on the last day of an
Interest Period for such Eurocurrency Rate Loans and any Conversion of
Base Rate Loans into Eurocurrency Rate Loans shall be in an amount not
less than the minimum amount specified in Section 3.01(b). Each such
notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Revolving Loans to be
Converted and (iii) if such Conversion is into Eurocurrency Rate Loans,
the duration of the initial Interest Period for such Revolving Loans.
Each notice of Conversion shall be irrevocable and binding on the
Borrowers.
(b) Mandatory. If the Company shall fail to select the
---------
duration of any Interest Period for any Eurocurrency Rate Loans in
accordance with the provisions contained in the definition of "Interest
Period" in Section 1.01, the Administrative Agent will forthwith so
notify the Company and the Lenders, whereupon each such Eurocurrency
Rate Loan will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Loan.
(c) Conversions Generally. Each Borrower and the Lenders
---------------------
hereby acknowledge that Conversions pursuant to this Section 2.14 do
not constitute Borrowings and, accordingly, do not result in the
remaking of any of the Company's representations and warranties
pursuant to Section 4.02 or Section 4.03.
SECTION 2.15. Extension of Termination Date.
-----------------------------
(a) The Company may, by notice to the Administrative Agent
(which shall promptly notify the Lenders) not less than 45 days and not
more than 60 days prior to each anniversary (each such anniversary, an
"Anniversary Date") of the Effective Date, request that each Lender
----------------
extend such Lender's Termination Date to the date (the "New Termination
---------------
Date") that is one year after the then Final Termination Date. Each
----
Lender, acting in its sole discretion, shall, by written notice to the
Administrative Agent given no later than the date (the "Consent Date")
------------
that is the earlier of (i) 15 days after the date of the notice
referred to in the preceding sentence and (ii) 30 days prior to the
Anniversary Date (provided that, if such earlier date is not a Business
--------
Day, the Consent Date shall be the next succeeding Business Day),
advise the Administrative Agent as to:
(1) whether or not such Lender agrees to such
extension of its Termination Date (each Lender so agreeing to
such extension being an "Extending Lender"); and
----------------
(2) only if such Lender is an Extending Lender,
whether or not such Lender also irrevocably offers to increase
the amount of its Commitment (each Lender so offering to
increase its Commitment being an "Increasing Lender" as well
-----------------
as an Extending Lender) and, if so, the amount of the
additional Commitment such Lender so irrevocably offers to
assume hereunder (such Lender's "Proposed Additional
-------------------
Commitment").
----------
45
Each Lender that determines not to extend its Termination Date (a
"Non-Extending Lender") shall notify the Administrative Agent (which
--------------------
shall notify the Lenders) of such fact promptly after such
determination but in any event no later than the Consent Date, and any
Lender that does not advise the Administrative Agent in writing on or
before the Consent Date shall be deemed to be a Non-Extending Lender.
The election of any Lender to agree to such extension shall not
obligate any other Lender to so agree. The Administrative Agent shall
notify the Company of each Lender's determination under this Section
2.15(a) no later than the date 25 days prior to the Anniversary Date
(or, if such date is not a Business Day, on the next preceding Business
Day).
(b) (i) If all of the Lenders are Extending Lenders, then,
effective as of the Consent Date, the Termination Date of each
Lender shall be extended to the New Termination Date, and the
respective Commitments of the Lenders will not be subject to
change at such Consent Date pursuant to this Section 2.15.
(ii) If and only if the sum of (x) the aggregate
amount of the Commitments of the Extending Lenders plus (y)
the aggregate amount of the Proposed Additional Commitments of
the Increasing Lenders (such sum, the "Extending Commitments")
---------------------
shall be equal to at least 80% of the then Current Aggregate
Commitment, then:
(1) effective as of the Consent Date, the
Termination Date of each Extending Lender shall be
extended to the New Termination Date; and
(2) the Company shall (so long as no Default
shall have occurred and be continuing) have the
right, but not the obligation, to take either of the
following actions with respect to each Non-Extending
Lender during the period commencing on the Consent
Date and ending on the immediately succeeding
Anniversary Date:
(X) the Company may elect by notice
to the Administrative Agent and such
Non-Extending Lender that the Termination
Date of such Non-Extending Lender be changed
to a date (which date shall be specified in
such notice) on or prior to the Anniversary
Date (and, upon the giving of such notice,
the Termination Date of such Non-Extending
Lender shall be so changed); or
(Y) the Company may replace such
Non-Extending Lender as a party to this
Agreement in accordance with Section
2.15(c).
(iii) If neither of the conditions specified in
clause (i) or clause (ii) of this Section 2.15(b) is
satisfied, then neither the Termination Date nor the
Commitment of any Lender will change pursuant to this Section
2.15 on such
46
Consent Date, and the Company will not have the right to take
any of the actions specified in Section 2.15(b)(ii)(2).
(c) Replacement by the Company of Non-Extending Lenders
pursuant to Section 2.15(b)(ii)(2)(Y) shall be effected as follows
(certain terms being used in this Section 2.15(c) having the meanings
assigned to them in Section 2.15(d)) on the relevant Assignment Date:
(1) the Assignors shall severally assign and transfer
to the Assignees, and the Assignees shall severally purchase
and assume from the Assignors, all of the Assignors' rights
and obligations (including, without limitation, the Assignors'
respective Commitments) hereunder and under the Notes;
(2) each Assignee shall pay to the Administrative
Agent, for account of the Assignors, an amount equal to such
Assignee's Share of the aggregate outstanding principal amount
of the Loans then held by the Assignors;
(3) the Company shall pay to the Administrative
Agent, for account of the Assignors, all interest, fees and
other amounts (other than principal of outstanding Loans) then
due and owing to the Assignors by the Company hereunder
(including, without limitation, payments due such Assignors,
if any, under Sections 2.12, 3.05 and 9.04(c)); and
(4) the Company shall pay to the Administrative Agent
for account of the Administrative Agent the $2,500 processing
and recordation fee for each assignment effected pursuant to
this Section 2.15(c).
The assignments provided for in this Section 2.15(c) shall be effected
on the relevant Assignment Date in accordance with Section 9.07 and
pursuant to one or more Assignments and Acceptances. After giving
effect to such assignments, each Assignee shall have a Commitment
hereunder (which, if such Assignee was a Lender hereunder immediately
prior to giving effect to such assignment, shall be in addition to such
Assignee's existing Commitment) in an amount equal to the amount of its
Assumed Commitment.
(d) For purposes of this Section 2.15 the following terms
shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Assigned Commitments" means the Commitments of
--------------------
Non-Extending Lenders to be replaced pursuant to Section
2.15(b)(ii)(2)(Y).
"Assignees" means, at any time, Increasing Lenders
---------
and, if the Assigned Commitments exceed the aggregate amount
of the Proposed Additional Commitments, one or more New
Lenders.
47
"Assignment Date" means the Anniversary Date or such
---------------
earlier date as shall be acceptable to the Company, the
relevant Assignors, the relevant Assignees and the
Administrative Agent.
"Assignors" means, at any time, the Lenders to be
---------
replaced by the Company pursuant to Section 2.15(b)(ii)(2)(Y).
The "Assumed Commitment" of each Assignee shall be
------------------
determined as follows:
(a) If the aggregate amount of the Proposed
Additional Commitments of all of the Increasing
Lenders shall exceed the aggregate amount of the
Assigned Commitments, then (i) the amount of the
Assumed Commitment of each Increasing Lender shall be
equal to (x) the aggregate amount of the Assigned
Commitments multiplied by (y) a fraction, the
---------- --
numerator of which is equal to such Increasing
Lender's Commitment as then in effect and the
denominator of which is the aggregate amount of the
Commitments of all Increasing Lenders as then in
effect; and (ii) no New Lender shall be entitled to
become a Lender hereunder pursuant to Section 2.15(c)
(and, accordingly, each New Lender shall have an
Assumed Commitment of zero).
(b) If the aggregate amount of the Proposed
Additional Commitments of all of the Increasing
Lenders shall be less than or equal to the aggregate
amount of the Assigned Commitments, then: (i) the
amount of the Assumed Commitment of each Increasing
Lender shall be equal to such Increasing Lender's
Proposed Additional Commitment; and (ii) the excess,
if any, of the aggregate amount of the Assigned
Commitments over the aggregate amount of the Proposed
----
Additional Commitments shall be allocated among New
Lenders in such a manner as the Company and the
Administrative Agent may agree.
"Share" means, as to any Assignee, a fraction the
-----
numerator of which is equal to such Assignee's Assumed
Commitment and the denominator of which is the aggregate
amount of the Assumed Commitments of all the Assignees.
SECTION 2.16. Borrowings by Designated Borrowers.
----------------------------------
(a) The Company may, at any time or from time to time,
designate one or more Wholly-Owned Subsidiaries as Borrowers hereunder
by furnishing to the Administrative Agent a letter (a "Designation
-----------
Letter") in duplicate, in substantially the form of Exhibit F-1, duly
------
completed and executed by the Company and such Subsidiary. Upon any
such designation of a Subsidiary, such Subsidiary shall be a Designated
Borrower
48
and a Borrower entitled to borrow Revolving Loans and Competitive Bid
Loans on and subject to the terms and conditions of this Agreement.
(b) So long as all principal of and interest on all Loans made
to any Designated Borrower have been paid in full, the Company may
terminate the status of such Borrower as a Borrower hereunder by
furnishing to the Administrative Agent a letter (a "Termination
-----------
Letter") in substantially the form of Exhibit F-2, duly completed and
------
executed by the Company. Any Termination Letter furnished hereunder
shall be effective upon receipt by the Administrative Agent, which
shall promptly notify the Lenders, whereupon the Lenders shall promptly
deliver to the Company (through the Administrative Agent) the Notes, if
any, of such former Borrower. Notwithstanding the foregoing, the
delivery of a Termination Letter with respect to any Borrower shall not
terminate (i) any obligation of such Borrower that remains unpaid at
the time of such delivery (including without limitation any obligation
arising thereafter in respect of such Borrower under Section 2.12 or
3.05) or (ii) the obligations of the Company under Article X with
respect to any such unpaid obligations.
ARTICLE III
MAKING THE LOANS AND ISSUING THE
LETTERS OF CREDIT
SECTION 3.01. Making the Revolving Loans.
--------------------------
(a) Each Revolving Loan Borrowing shall be made on notice,
given not later than (x) 12:00 noon (New York City time, or, in the
case of a Borrowing in an Alternate Currency, London time) on the third
(or, in the case of a Borrowing to be denominated in an Alternate
Currency, fourth) Business Day prior to the date of a Eurocurrency Rate
Loan Borrowing, and (y) 11:00 A.M. (New York City time) on the day of a
Base Rate Loan Borrowing, by the Company (on its own behalf and on
behalf of any Designated Borrower) to the Administrative Agent, which
shall give to each Lender prompt notice thereof by telecopier, telex or
cable. Each such notice of a Revolving Loan Borrowing (a "Notice of
---------
Revolving Loan Borrowing") shall be made in writing, or orally and
------------------------
confirmed immediately in writing, by telecopier, telex or cable, in
substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such Revolving Loan Borrowing (which shall be a
Business Day), (ii) Currency and Type of Revolving Loan comprising such
Revolving Loan Borrowing, (iii) aggregate amount of such Revolving Loan
Borrowing, (iv) in the case of a Revolving Loan Borrowing comprised of
Eurocurrency Rate Loans, the Interest Period for each such Revolving
Loan and (v) the name of the Borrower (which shall be the Company or a
Designated Borrower). Each Lender shall (A) before 11:00 A.M. Local
Time on the date of such Borrowing (in the case of a Eurocurrency Rate
Loan Borrowing) and (B) before 1:00 P.M. (New York City time) on the
date of such Borrowing (in the case of a Base Rate Loan Borrowing),
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account for the
relevant Currency in same day funds, such
49
Lender's ratable portion of such Revolving Loan Borrowing; provided
--------
that, with respect to Borrowings of Eurocurrency Rate Loans, no Lender
having a Termination Date prior to the last day of the initial Interest
Period for such Eurocurrency Rate Loans shall participate in such
Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article IV,
the Administrative Agent will make such funds available to the relevant
Borrower in such manner as the Administrative Agent and the Company may
agree; provided, however, that the Administrative Agent shall first
-------- -------
make a portion of such funds equal to the aggregate principal amount of
any Swing Loan and Letter of Credit Loans as to which a Borrower has
received timely notice made by the Swing Loan Bank or the Issuing Bank,
as the case may be, and by any other Lender and outstanding on the date
of such Revolving Loan Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Loan Bank or the
Issuing Bank, as the case may be, and such other Lenders for repayment
of such Swing Loans and Letter of Credit Loans.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Company may not select Eurocurrency Rate Loans for
any Revolving Loan Borrowing if the aggregate amount of such Revolving
Loan Borrowing is less than $10,000,000 or the Foreign Currency
Equivalent thereof.
(c) Subject to Sections 2.09(c) and 3.06, each Notice of
Revolving Loan Borrowing shall be irrevocable and binding on the
Company and the relevant Borrower. In the case of any Revolving Loan
Borrowing by a Borrower which the related Notice of Revolving Loan
Borrowing specifies is to be comprised of Eurocurrency Rate Loans, such
Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Revolving Loan Borrowing
for such Revolving Loan Borrowing the applicable conditions set forth
in Article IV, including, without limitation, any loss (excluding loss
of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Loan to be made by such Lender as part of
such Revolving Loan Borrowing when such Revolving Loan, as a result of
such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the time any Revolving Loan Borrowing is
required to be made that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Revolving
Loan Borrowing, the Administrative Agent may assume that such Lender
has made such portion available to the Administrative Agent on the date
of such Revolving Loan Borrowing in accordance with subsection (a) of
this Section 3.01 and the Administrative Agent may, in reliance upon
such assumption, make available to the relevant Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative
Agent, such Lender and the relevant Borrower severally agree to repay
to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such
amount is made available to such Borrower until the date
50
such amount is repaid to the Administrative Agent, at (i) in the case
of such Borrower, the interest rate applicable at the time to Revolving
Loans comprising such Revolving Loan Borrowing and (ii) in the case of
such Lender, the Federal Funds Rate, provided that such Borrower
--------
retains its rights against such Lender with respect to any damages it
may incur as a result of such Lender's failure to fund, and
notwithstanding anything herein to the contrary, in no event shall such
Borrower be liable to such Lender or any other Person for the interest
payable by such Lender to the Administrative Agent pursuant to this
sentence. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such
Lender's Revolving Loan as part of such Revolving Loan Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Loan to be
made by it as part of any Revolving Loan Borrowing shall not relieve
any other Lender of its obligation, if any, hereunder to make its
Revolving Loan on the date of such Revolving Loan Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make
the Revolving Loan to be made by such other Lender on the date of any
Revolving Loan Borrowing.
SECTION 3.02. Making the Competitive Bid Loans.
--------------------------------
(a) The Company (on its own behalf and on behalf of any
Designated Borrower) may request a Competitive Bid Loan Borrowing under
this Section 3.02 by delivering to the Administrative Agent a notice
(made in writing, or orally and confirmed immediately in writing, by
telecopier, telex or cable) of a Competitive Bid Loan Borrowing (a
"Notice of Competitive Bid Loan Borrowing"), in substantially the form
----------------------------------------
of Exhibit B-2 hereto, specifying the date (which shall be a Business
Day) and aggregate amount of the proposed Competitive Bid Loan
Borrowing, the Currency thereof, the maturity date for repayment of
each Competitive Bid Loan to be made as part of such Competitive Bid
Loan Borrowing (which maturity date may not be later than 180 days or
six months, as applicable, after the date of such Competitive Bid Loan
Borrowing (or, if earlier, the Final Termination Date)), the interest
payment date or dates relating thereto, the name of the Borrower (which
shall be the Company or a Designated Borrower), and any other terms to
be applicable to such Competitive Bid Loan Borrowing, not later than
(i) 10:00 A.M. New York (or, in the case of a Borrowing in an Alternate
Currency, London) time at least one Business Day prior to the date of
the proposed Competitive Bid Loan Borrowing, if the Company shall
specify in the Notice of Competitive Bid Loan Borrowing that the rates
of interest to be offered by the Lenders shall be fixed rates per annum
and (ii) 12:00 noon New York (or, in the case of a Borrowing in an
Alternate Currency, London) time at least four Business Days prior to
the date of the proposed Competitive Bid Loan Borrowing, if the Company
shall instead specify in the Notice of Competitive Bid Loan Borrowing
the basis to be used by the Lenders in determining the rates of
interest to be offered by them. The Administrative Agent shall in turn
promptly notify each Lender of each request for a Competitive Bid Loan
Borrowing received by it from the Company by sending such Lender a copy
of the related Notice of Competitive Bid Loan Borrowing.
51
(b) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Loans to a
Borrower as part of such proposed Competitive Bid Loan Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Administrative Agent (which shall give
prompt notice thereof to the Company), before 10:00 A.M. New York (or,
in the case of a Borrowing in an Alternate Currency, London) time (i)
on the date of such proposed Competitive Bid Loan Borrowing, in the
case of a Notice of Competitive Bid Loan Borrowing delivered pursuant
to clause (i) of paragraph (a) above and (ii) three Business Days
before the date of such proposed Competitive Bid Loan Borrowing, in the
case of a Notice of Competitive Bid Loan Borrowing delivered pursuant
to clause (ii) of paragraph (a) above, of the minimum amount and
maximum amount of each Competitive Bid Loan which such Lender would be
willing to make as part of such proposed Competitive Bid Loan Borrowing
(which amounts may, subject to the proviso to the first sentence of
Section 2.02(a), exceed such Lender's Commitment), the rate or rates of
interest therefor and such Lender's Applicable Lending Office with
respect to such Competitive Bid Loan; provided that if the
--------
Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the Company
of such offer before 9:00 A.M. New York (or, in the case of a Borrowing
in an Alternate Currency, London) time on the date on which notice of
such election is to be given to the Administrative Agent by the other
Lenders. If any Lender shall elect not to make such an offer, such
Lender shall so notify the Administrative Agent, before 10:00 A.M. New
York (or, in the case of a Borrowing in an Alternate Currency, London)
time on the date on which notice of such election is to be given to the
Administrative Agent by the other Lenders, and such Lender shall not be
obligated to, and shall not, make any Competitive Bid Loan as part of
such Competitive Bid Borrowing; provided that the failure by any Lender
--------
to give such notice shall not cause such Lender to be obligated to make
any Competitive Bid Loan as part of such proposed Competitive Bid Loan
Borrowing.
(c) The Company shall, in turn, (i) before 11:30 A.M. New York
(or, in the case of a Borrowing in an Alternate Currency, London) time
on the date of such proposed Competitive Bid Loan Borrowing, in the
case of a Notice of Competitive Bid Loan Borrowing delivered pursuant
to clause (i) of paragraph (a) above and (ii) before 1:00 P.M. New York
(or, in the case of a Borrowing in an Alternate Currency, London) time
three Business Days before the date of such proposed Competitive Bid
Loan Borrowing, in the case of a Notice of Competitive Bid Loan
Borrowing delivered pursuant to clause (ii) of paragraph (b) above,
either:
(A) cancel such Competitive Bid Loan Borrowing by giving
the Administrative Agent notice to that effect, or
(B) accept one or more of the offers made by any Lender
or Lenders pursuant to paragraph (b) above, in its sole
discretion, by giving notice to the Administrative Agent of
the amount of each Competitive Bid Loan (which amount shall be
equal to or greater than the minimum amount, and equal to or
less
52
than the maximum amount, notified to the Company by the
Administrative Agent on behalf of such Lender for such
Competitive Bid Loan pursuant to paragraph (b) above) to be
made by each Lender as part of such Competitive Bid Loan
Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (b) above by giving the Administrative
Agent notice to that effect.
(d) If the Company notifies the Administrative Agent that such
Competitive Bid Loan Borrowing is canceled pursuant to paragraph (c)(A)
above, the Administrative Agent shall give prompt notice thereof to the
Lenders and such Competitive Bid Loan Borrowing shall not be made.
(e) If the Company accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (c)(B) above, the
Administrative Agent shall in turn promptly notify (i) each Lender that
has made an offer as described in paragraph (b) above, of the date and
aggregate amount of such Competitive Bid Loan Borrowing and whether or
not any offer or offers made by such Lender pursuant to paragraph (b)
above have been accepted by the Company, (ii) each Lender that is to
make a Competitive Bid Loan as part of such Competitive Bid Loan
Borrowing, of the amount of each Competitive Bid Loan to be made by
such Lender as part of such Competitive Bid Loan Borrowing, and (iii)
each Lender that is to make a Competitive Bid Loan as part of such
Competitive Bid Loan Borrowing, upon receipt, that the Administrative
Agent has received forms of documents appearing to fulfill the
applicable conditions set forth in Article IV. Each Lender that is to
make a Competitive Bid Loan as part of such Competitive Bid Loan
Borrowing shall, before 1:00 P.M. New York (or, in the case of a
Borrowing in an Alternate Currency, London) time on the date of such
Competitive Bid Loan Borrowing specified in the notice received from
the Administrative Agent pursuant to clause (i) of the preceding
sentence or any later time when such Lender shall have received notice
from the Administrative Agent pursuant to clause (iii) of the preceding
sentence, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's
Account for the relevant Currency such Lender's portion of such
Competitive Bid Loan Borrowing, in same day funds. Upon fulfillment of
the applicable conditions set forth in Article IV and after receipt by
the Administrative Agent of such funds, the Administrative Agent will
make such funds available to the relevant Borrower at the
Administrative Agent's aforesaid address. Promptly after each
Competitive Bid Loan Borrowing the Administrative Agent will notify
each Lender of the amount of the Competitive Bid Loan Borrowing, the
consequent Competitive Bid Loan Reduction and the dates upon which such
Competitive Bid Loan Reduction commenced and will terminate.
(f) Following the making of each Competitive Bid Loan
Borrowing, the Company shall be in compliance with the limitation set
forth in the proviso to the first sentence of Section 2.02(a).
(g) Notwithstanding anything to the contrary in Section 2.02
or in the foregoing provisions of this Section 3.02, no Lender whose
Termination Date occurs prior to the
53
maturity date for any Competitive Bid Loan requested in a Notice of
Competitive Bid Loan Borrowing shall be entitled to receive or to make
a quote pursuant to such Notice of Competitive Bid Loan Borrowing or
otherwise to participate in such Competitive Bid Loan Borrowing.
SECTION 3.03. Making the Swing Loans, Etc.
----------------------------
(a) The Company (on its own behalf and on behalf of any
Designated Borrower) may request a Swing Loan Borrowing from a Swing
Loan Bank under this Section 3.03 by delivering to the Administrative
Agent and such Swing Loan Bank, no later than 2:00 P.M. (New York City
time) on the date of the proposed Swing Loan Borrowing, a notice of a
Swing Loan Borrowing (a "Notice of Swing Loan Borrowing"), which shall
------------------------------
be made in writing, or orally and confirmed immediately in writing, by
telecopier, telex or cable, and shall specify therein (i) the Borrower
(which shall be the Company or a Designated Borrower), (ii) the
requested Swing Loan Bank, (iii) the date of such Borrowing (which
shall be a Business Day), (iv) the amount of such Borrowing, (v) the
maturity of such Borrowing (which maturity shall be no later than the
seventh day after the requested date of such Borrowing) and (vi) the
account of the relevant Borrower to which the proceeds of such
Borrowing are to be made available.
(b) The relevant Swing Loan Bank may, if, in its sole
discretion, it elects to do so, irrevocably offer to make such Swing
Loan to the relevant Borrower by telephonic notice, such notice
specifying whether such Swing Loan will bear interest (i) at the rate
of interest specified in Section 2.08(a)(i) (such Swing Loan, a "Base
----
Rate Swing Loan") or (ii) at a different rate of interest specified in
---------------
such notice by such Swing Loan Bank in its sole discretion (such Swing
Loan, a "Quoted Rate Swing Loan"). If such Swing Loan Bank shall elect
----------------------
not to make such an offer, such Swing Loan Bank shall so notify the
Administrative Agent and the Company; provided that the failure by such
--------
Swing Loan Bank to give such notice shall not cause such Swing Loan
Bank to be obligated to make such Swing Loan.
(c) If such Swing Loan Bank shall have offered to make a Swing
Loan as provided in paragraph (b) above, the Company shall, in turn,
before the earlier of one hour after its receipt of such offer and 2:30
P.M. (New York City time) on the date of the proposed Swing Loan
Borrowing either (A) cancel such Swing Loan Borrowing or (B) accept
such offer, in each case by giving notice to such effect to the
Administrative Agent and such Swing Loan Bank.
(d) If the Company cancels such Swing Loan Borrowing pursuant
to paragraph (c)(A) above, such Swing Loan Borrowing shall not be made.
If the Company accepts such offer pursuant to paragraph (c)(B) above,
the relevant Swing Loan Bank will (subject to the applicable conditions
set forth in Article IV) make the amount of such Swing Loan available
to the relevant Borrower at the account specified in the relevant
Notice of Swing Loan Borrowing. In the case of any Borrowing of Quoted
Rate Swing Loans, the Company shall indemnify the relevant Swing Loan
Bank against any loss, cost
54
or expense incurred by such Swing Loan Bank as a result of any failure
to fulfill on or before the date of such Swing Loan the applicable
conditions set forth in Article IV, including, without limitation, any
loss (excluding loss of anticipated profits), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds
acquired by such Swing Loan Bank to fund the Quoted Rate Swing Loan to
be made by such Swing Loan Bank as part of such Borrowing when such
Quoted Rate Swing Loan, as a result of such failure, is not made on
such date.
(e) If the Company accepts an offer by a Swing Loan Bank for a
Quoted Rate Swing Loan as provided above, such Swing Loan Bank will
provide the Company and the Administrative Agent with written
confirmation (a "Swing Loan Rate Confirmation") of the agreed interest
----------------------------
rate (the "Swing Loan Rate") for such Quoted Rate Swing Loan by the
---------------
Business Day next succeeding the date on which the related Notice of
Swing Loan Borrowing was given, and the rate specified in such Swing
Loan Rate Confirmation shall for all purposes be the interest rate
payable in respect of such Quoted Rate Swing Loan notwithstanding any
disagreement by the Company with the contents of such written
confirmation.
(f) Upon demand by a Swing Loan Bank through the
Administrative Agent, each other Lender having a Termination Date on or
after the scheduled maturity date of such Swing Loan shall purchase
from such Swing Loan Bank, and such Swing Loan Bank shall sell and
assign to each other Lender, such other Lender's pro rata share
(determined based on the aggregate Commitments of all Lenders having
Termination Dates on or after the scheduled maturity date of such Swing
Loan) of each outstanding Base Rate Swing Loan made by such Swing Loan
Bank (and related claims for accrued and unpaid interest), by making
available for the account of its Applicable Lending Office to the
Administrative Agent for the account of such Swing Loan Bank by deposit
to the Administrative Agent at its aforesaid address, in same day
funds, an amount equal to the sum of (x) the portion of the outstanding
principal amount of such Base Rate Swing Loans to be purchased by such
Lender plus (y) interest accrued and unpaid to and as of such date on
----
such portion of the outstanding principal amount of such Base Rate
Swing Loans (it being understood that this sentence shall not apply to
any Quoted Rate Swing Loan). Each Lender's obligations to make such
payments to the Administrative Agent for account of the Swing Loan
Banks under this paragraph (f), and each Swing Loan Bank's right to
receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation,
the failure of any other Lender to make its payment under this
paragraph (f), the financial condition of the Company (or any other
Person), the existence of any Default, the failure of any of the
conditions set forth in Article IV to be satisfied, or the termination
of the Commitments. Each such payment to a Swing Loan Bank shall be
made without any offset, abatement, withholding or reduction
whatsoever. Each Lender agrees to purchase its pro rata share of such
outstanding Base Rate Swing Loans on (i) the Business Day on which
demand therefor is made by such Swing Loan Bank, provided that notice
--------
of such demand is given not later than 11:00 A.M. (New York City time)
on such Business Day or (ii) the first Business Day next succeeding
such demand if notice of such demand is given after such
55
time. Upon any such assignment by a Swing Loan Bank to any other Lender
of a portion of such Swing Loan Bank's Base Rate Swing Loans, such
Swing Loan Bank represents and warrants to such other Lender that such
Swing Loan Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and
assumes no responsibility with respect to such Swing Loan, the Loan
Documents or any party thereto. If and to the extent that any Lender
shall not have so made the amount of such Swing Loan available to the
Administrative Agent, such Lender agrees to pay to the Administrative
Agent for the account of such Swing Loan Bank forthwith on demand such
amount together with interest thereon, for each day from the date of
demand by such Swing Loan Bank until the date such amount is paid to
the Administrative Agent, at the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such amount for the account of
such Swing Loan Bank, such amount so paid in respect of principal shall
constitute a Swing Loan by such Lender for purposes of this Agreement,
and the outstanding principal amount of the Swing Loans made by such
Swing Loan Bank shall be reduced by such amount.
SECTION 3.04. Issuance of Letters of Credit.
-----------------------------
(a) Request for Issuance.
--------------------
(i) Each Letter of Credit issued after the date
hereof shall be issued upon notice, given not later than 11:00
A.M. (New York City time) on the third Business Day prior to
the proposed issuance of such Letter of Credit, by the Company
to the Issuing Bank, which shall give to the Letter of Credit
Agent and each Lender prompt notice thereof by telex,
telecopier or cable. Each such notice of issuance of a Letter
of Credit (a "Notice of Issuance") shall be by telex,
------------------
telecopier or cable, confirmed immediately in writing,
specifying therein the requested (A) date of such issuance
(which shall be a Business Day), (B) Available Amount of such
Letter of Credit, (C) expiration date of such Letter of
Credit, (D) name and address of the beneficiary of such Letter
of Credit and (E) form of such Letter of Credit, and shall be
accompanied by such application and agreement for letter of
credit (each such application and agreement, and each
application and agreement executed and delivered in respect of
an Existing Letter of Credit, a "Letter of Credit Agreement")
--------------------------
as the Issuing Bank may specify to the Company for use in
connection with such requested Letter of Credit.
(ii) If the requested form of such Letter of Credit
is for the account of any entity permitted under Section 2.04
and is acceptable to the Issuing Bank, the Issuing Bank will,
upon fulfillment of the applicable conditions set forth in
Article IV, make such Letter of Credit available to the
Company at its office referred to in Section 9.02 or as
otherwise agreed with the Company in connection with such
issuance. In the event and to the extent that the provisions
of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
56
(iii) The Letter of Credit Agent shall furnish (A) to
the Issuing Bank on the first Business Day of each week a
written report summarizing issuance and expiration dates of
Letters of Credit issued during the previous week and drawings
during such week under all Letters of Credit, (B) to each
Lender and the Company on the first Business Day of each month
a written report summarizing issuance and expiration dates of
Letters of Credit issued during the preceding month and
drawings during such month under all Letters of Credit and (C)
to the Administrative Agent, the Company and each Lender on
the first Business Day of each fiscal quarter a written report
setting forth the average daily aggregate Available Amount
during the preceding fiscal quarter of all Letters of Credit.
(b) Drawing and Reimbursement.
-------------------------
(i) The payment by the Issuing Bank of a draft drawn
under any Letter of Credit shall constitute for all purposes
of this Agreement the making by the Issuing Bank of a Letter
of Credit Loan, which shall be a loan bearing interest at the
Base Rate, in the amount of such draft.
(ii) Upon written demand by the Issuing Bank with a
copy of such demand to the Administrative Agent, each other
Lender shall purchase from the Issuing Bank, and the Issuing
Bank shall sell and assign to each such other Lender, such
other Lender's pro rata share of such outstanding Letter of
Credit Loan as of the date of such purchase, by making
available for the account of its Applicable Lending Office to
the Administrative Agent for the account of the Issuing Bank,
by deposit to the Administrative Agent's Account for Dollars,
in same day funds, an amount equal to the portion of the
outstanding principal amount of such Letter of Credit Loan to
be purchased by such Lender. The Company (for itself and on
behalf of each other account party) hereby agrees to each such
sale and assignment.
(iii) Each Lender's obligations to make such payments
to the Administrative Agent for account of the Issuing Bank
under this paragraph (b), and the Issuing Bank's right to
receive the same, shall be absolute and unconditional and
shall not be affected by any circumstance whatsoever,
including, without limitation, the failure of any other Lender
to make its payment under this paragraph (b), the financial
condition of the Company (or any other account party), the
existence of any Default, the failure of any of the conditions
set forth in Article IV to be satisfied, or the termination of
the Commitments. Each such payment to the Issuing Bank shall
be made without any offset, abatement, withholding or
reduction whatsoever.
(iv) Each Lender agrees to purchase its pro rata
share of an outstanding Letter of Credit Loan on (i) the
Business Day on which demand therefor is made by the Issuing
Bank, provided notice of such demand is given not later than
11:00 A.M. (New York City time) on such Business Day or (ii)
the first Business
57
Day next succeeding such demand if notice of such demand is
given after such time.
(v) Upon any such assignment by the Issuing Bank to
any other Lender of a portion of a Letter of Credit Loan, the
Issuing Bank represents and warrants to such other Lender that
the Issuing Bank is the legal and beneficial owner of such
interest being assigned by it, but makes no other
representation or warranty and assumes no responsibility with
respect to such Letter of Credit Loan, the Loan Documents or
any party hereto.
(vi) If and to the extent that any Lender shall not
have so made the amount of such Loan available to the
Administrative Agent, such Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together
with interest thereon, for each day from the date of demand by
the Issuing Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate.
(vii) If such Lender shall pay to the Administrative
Agent such amount for the account of the Issuing Bank on any
Business Day, such amount so paid in respect of principal
shall constitute a Letter of Credit Loan made by such Lender
on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Letter of Credit Loan made
by the Issuing Bank shall be reduced by such amount on such
Business Day.
(c) Obligations Absolute. The obligations of the Company under
--------------------
this Agreement, any Letter of Credit Agreement and any other agreement
or instrument relating to any Letter of Credit (and the obligations of
each Lender to purchase portions of Letter of Credit Loans pursuant to
paragraph (b) above) shall be unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument under
all circumstances, including, without limitation, the following
circumstances (it being understood that any such payment by the Company
is without prejudice to, and does not constitute a waiver of, any
rights the Company might have or might acquire as a result of the
payment by the Issuing Bank or any Lender of any draft or the
reimbursement by the Company thereof):
(i) any lack of validity or enforceability of this
Agreement, any Letter of Credit Agreement, any Letter of
Credit or any other agreement or instrument relating thereto
(this Agreement and all of the other foregoing being,
collectively, the "L/C Related Documents");
---------------------
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations of the Company in respect of any L/C Related
Document or any other amendment or waiver of or any consent to
departure from all or any of the L/C Related Documents;
58
(iii) the existence of any claim, set-off, defense or
other right that the Company (or any other account party) may
have at any time against any beneficiary or any transferee of
a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing
Bank or any other Person, whether in connection with the
transactions contemplated by the L/C Related Documents or any
unrelated transaction;
(iv) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(v) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of
Credit; or
(vi) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including,
without limitation, any other circumstance that might
otherwise constitute a defense available to, or a discharge
of, the Company.
SECTION 3.05. Increased Costs.
---------------
(a) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve
requirements included in the Eurocurrency Rate Reserve Percentage, in
each case as of the date of determination thereof) in or in the
interpretation of any law or regulation, in each case as of the date
hereof or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the
force of law) which implements any introduction or change specified in
clause (i) above, there shall be any increase in the cost to any Lender
of agreeing to make or making, funding or maintaining Eurocurrency Rate
Loans, then the Company shall from time to time, within ten Business
Days after written demand by such Lender (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the
account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost incurred during the 90-day period prior
to the date of such demand. A certificate as to the amount of such
increased cost, submitted to the Company and the Administrative Agent
by such Lender and showing in reasonable detail the basis for the
calculation thereof, shall be prima facie evidence of such costs.
----- -----
(b) If any Lender determines that compliance with (i) the
introduction of or any change in or in the interpretation of, any law
or regulation, in each case after the date hereof, or (ii) any
guideline or request from any central bank or other governmental
authority (whether or not having the force of law) which implements any
introduction or change specified in clause (i) above, affects or would
affect the amount of capital
59
required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to
lend hereunder and other commitments of this type, then, within ten
Business Days after written demand by such Lender (with a copy of such
demand to the Administrative Agent), the Company shall from time to
time pay to the Administrative Agent for the account of such Lender,
additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances incurred during the 90-
day period prior to the date of such demand, to the extent that such
Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to the Company and the
Administrative Agent by such Lender and showing in reasonable detail
the basis for the calculation thereof shall be prima facie evidence of
----- -----
such costs.
(c) Without limiting the effect of the foregoing, the Company
shall pay to each Lender on the last day of each Interest Period so
long as such Lender is maintaining reserves against Eurocurrency
Liabilities (or so long as such Lender is maintaining reserves against
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurocurrency Rate Loans is determined as
provided in this Agreement or against any category of extensions of
credit or other assets of such Lender that includes any Eurocurrency
Rate Loans) an additional amount (determined by such Lender and
notified to the Company through the Administrative Agent) equal to the
product of the following for each Eurocurrency Rate Loan for each day
during such Interest Period:
(i) the principal amount of such Eurocurrency Rate
Loan outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of
which is the rate (expressed as a decimal) at which interest
accrues on such Eurocurrency Rate Loan for such Interest
Period as provided in this Agreement (less the Applicable
Margin) and the denominator of which is one minus the
-----
Eurocurrency Rate Reserve Percentage in effect on such day
minus (y) such numerator; and
-----
(iii) 1/360.
(d) If the Company is required to pay any Lender any amounts
under this Section 3.05, the applicable Lender shall be an "Affected
--------
Person", and the Company shall have the rights set forth in Section
------
3.08 to replace such Affected Person.
SECTION 3.06. Illegality. Notwithstanding any other provision
----------
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such Lender or its Eurocurrency
Lending Office to perform its obligations hereunder to make Eurocurrency Rate
Loans or to fund or maintain Eurocurrency Rate Loans hereunder, then, subject to
the provisions of Section 3.08,
60
(i) the obligation of such Lender to make Eurocurrency Rate Loans hereunder
shall be suspended until the first date on which the circumstances causing such
suspension cease to exist, (ii) any Eurocurrency Rate Loans made or to be made
by such Lender shall be converted automatically to Base Rate Loans and (iii)
such Lender shall be an "Affected Person", and the Company shall have the right
---------------
set forth in Section 3.08 to replace such Affected Person. In the event of such
a suspension, such Lender shall review the circumstances giving rise to such
suspension at least weekly and shall notify the Company, the Administrative
Agent and the Lenders promptly of the end of such suspension, and thereafter the
Company shall be entitled to borrow Eurocurrency Rate Loans from such Lender.
SECTION 3.07. Reasonable Efforts to Mitigate. Each Lender shall use
------------------------------
its reasonable best efforts (consistent with its internal policy and legal and
regulatory restrictions) to minimize any amounts payable by the Company under
Section 3.05 and to minimize any period of illegality described in Section 3.06.
Without limiting the generality of the foregoing, each Lender agrees that, to
the extent reasonably possible to such Lender, it will change its Eurocurrency
Lending Office if such change would eliminate or reduce amounts payable to it
under Section 3.05 or eliminate any illegality of the type described in Section
3.06, as the case may be. Each Lender further agrees to notify the Company
promptly, but in any event within five Business Days, after such Lender learns
of the circumstances giving rise to such a right to payment or such illegality
have changed such that such right to payment or such illegality, as the case may
be, no longer exists.
SECTION 3.08. Right to Replace Affected Person or Lender.
------------------------------------------
(a) Replacement by the Company. In the event the Company is required
--------------------------
to pay any Taxes with respect to an Affected Person pursuant to Section
2.12(c) or any amounts with respect to an Affected Person pursuant to
Section 3.05, or receives a notice from an Affected Person pursuant to
Section 3.06, or is required to make a payment to any Lender (which Lender
shall be deemed to be an "Affected Person" for purposes of this Section
---------------
3.08(a)) under Section 9.15, the Company may elect, if such amounts
continue to be charged or such notice is still effective, to replace such
Affected Person as a party to this Agreement, provided that, concurrently
--------
therewith, (i) another financial institution which is an Eligible Assignee
and is reasonably satisfactory to the Company and the Administrative Agent
(or if the Lender then serving as Administrative Agent is the Person to be
replaced and the Administrative Agent has resigned its position, the Lender
becoming the successor Administrative Agent) shall agree, as of such date,
to purchase for cash and at par the Loans of the Affected Person, pursuant
to an Assignment and Acceptance and to become a Lender for all purposes
under this Agreement and to assume all obligations (including all
outstanding Loans) of the Affected Person to be terminated as of such date
and to comply with the requirements of Section 9.07 applicable to
assignments (other than clause (a)(iv) thereof), and (ii) the Company shall
pay to such Affected Person in same day funds on the day of such
replacement all interest, fees and other amounts then due and owing to such
Affected Person by the Company hereunder to and including the date of
termination, including without limitation payments due such
61
Affected Person under Section 2.12, costs incurred under Section 3.05 or
Section 9.15 and payments owing under Section 9.04(c).
(b) Replacement by the Letter of Credit Agent or the Issuing Bank. In
-------------------------------------------------------------
the event that S&P and Moody's shall, after the date that any Person
becomes a Lender, downgrade the long-term certificate of deposit ratings of
such Lender, and the resulting ratings shall be below BBB-and Baa3,
respectively, or the equivalent, then each of the Letter of Credit Agent
and the Issuing Bank shall in consultation with the Company have the right,
but not the obligation, at its own expense, upon notice to such Lender and
the Administrative Agent, to replace such Lender with an Eligible Assignee,
and such Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.07
(other than clause (a)(iv) thereof)) all the interests, rights and
obligations in respect of its Commitment to an Eligible Assignee; provided,
--------
however, that (x) no such assignment shall conflict with any law, rule or
-------
regulation or order of any governmental authority and (y) the Letter of
Credit Agent, the Issuing Bank or such Eligible Assignee, as the case may
be, shall pay to such Lender in same day funds on the date of such
assignment the principal of and interest accrued to the date of payment on
the Loans made by such Lender hereunder and all other amounts accrued for
such Lender's account or owed to it hereunder. Upon any such termination or
assignment, such Lender shall cease to be a party hereto but shall continue
to be obligated under Section 8.05 and be entitled to the benefits of
Section 9.04, as well as to any fees and other amounts accrued for its
account under Sections 2.05, 2.12 or 3.05 and not yet paid.
SECTION 3.09. Use of Proceeds. The proceeds of the Loans shall be
---------------
available (and each Borrower agrees that it shall use such proceeds) for general
corporate purposes (including, without limitation, commercial paper backup and
to finance acquisitions) of the Company and its Subsidiaries; provided that
--------
neither any Lender nor any Agent shall have any responsibility for the use of
any of the proceeds of Loans.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. Conditions Precedent to Initial Borrowing. The
-----------------------------------------
obligation of each Lender to make a Loan on the occasion of the initial
Borrowing shall be subject to the conditions precedent that, on a date (the
"Effective Date") not later than August 8, 2001, the Administrative Agent shall
--------------
have received each of the following:
(a) Each of the following documents, which shall be in form and
substance satisfactory to the Administrative Agent and (except for the
Notes) in sufficient copies for each Lender:
(i) The Revolving Loan Notes payable by the Company and any
Designated Borrower to the order of the Lenders, respectively.
62
(ii) Certified copies of (x) the charter and by-laws of the
Company, (y) the resolutions of the Board of Directors of the Company
authorizing and approving this Agreement and the Notes, and (z) all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary
of the Company certifying the names and true signatures of the
officers of the Company authorized to sign this Agreement and the
Notes and the other documents to be delivered hereunder.
(iv) A favorable opinion of the Company's Law Department,
substantially in the form of Exhibit D and covering such other matters
relating hereto as any Lender, through the Administrative Agent, may
reasonably request.
(v) A favorable opinion of Milbank, Tweed, Hadley & McCloy
LLP, special New York counsel to the Administrative Agent,
substantially in the form of Exhibit E.
(vi) A certificate of a senior officer of the Company to the
effect that (x) the representations and warranties contained in
Section 5.01 are correct (other than any such representations or
warranties which, by their terms, refer to a prior date) and (y) no
event has occurred and is continuing which constitutes a Default.
(b) Confirmation that (1) the Company has paid all accrued fees and
expenses of the Administrative Agent and the fees of the Letter of Credit
Agent and the Lenders hereunder (including the fees and expenses of counsel
to the Administrative Agent to the extent then payable), including without
limitation all accrued but unpaid fees and expenses under the Existing
Credit Agreement, to the extent the same have been invoiced to the Company
at least two (2) Business Days prior to the Effective Date, and (2) the
Company has paid in full the principal of and interest on the Loans and the
Notes as defined in, and all other amounts whatsoever payable under, the
Existing Credit Agreement and has terminated the Commitments as defined
therein.
SECTION 4.02. Conditions Precedent to Each Revolving Loan Borrowing,
------------------------------------------------------
Swing Loan Borrowing and Letter of Credit Issuance. The obligation of each
--------------------------------------------------
Lender to make a Loan (other than a Swing Loan or a Letter of Credit Loan made
by a Lender pursuant to Section 3.03 or 3.04(b) or a Competitive Bid Loan) on
the occasion of each Borrowing (including the initial Borrowing), and the right
of the Company to request a Swing Loan Borrowing or the issuance of a Letter of
Credit, shall be subject to the further conditions precedent that:
(i) in the case of the first Borrowing by a Designated Borrower
the Company shall have furnished to the Administrative Agent such
Revolving Loan Notes, corporate
63
documents, resolutions and legal opinions relating to such Designated
Borrower as the Administrative Agent may reasonably require, and
(ii) on the date of such Borrowing or issuance of a Letter of Credit
the following statements shall be true (and the acceptance by a Borrower of
the proceeds of such Borrowing or of such Letter of Credit shall constitute
a representation and warranty by the Company and such Borrower that on the
date of such Borrowing or issuance such statements are true):
(a) The representations and warranties contained in Section 5.01
(except the Excluded Representations) are correct on and as of the
date of such Borrowing or issuance, before and after giving effect to
such Borrowing or issuance and to the application of the proceeds
therefrom, as though made on and as of such date other than any such
representations or warranties that, by their terms, refer to a date
other than the date of such Borrowing or issuance; and
(b) No event has occurred and is continuing, or would result
from such Borrowing or issuance or from the application of the
proceeds therefrom, which constitutes a Default;
provided that the conditions set forth in clause (ii) of this Section 4.02 shall
--------
not be applicable to a Borrowing if, as a result of and immediately after giving
effect to such Borrowing and to the application of proceeds thereof, the
aggregate outstanding principal amount of the Revolving Loans, Swing Loans and
Letter of Credit Loans is not increased thereby.
SECTION 4.03. Conditions Precedent to Each Competitive Bid Loan
-------------------------------------------------
Borrowing. The obligation of each Lender which is to make a Competitive Bid Loan
---------
on the occasion of a Competitive Bid Loan Borrowing (including the initial
Competitive Bid Loan Borrowing) to make such Competitive Bid Loan as part of
such Competitive Bid Loan Borrowing is subject to the conditions precedent that:
(a) the Administrative Agent shall have received the written
confirmatory Notice of Competitive Bid Loan Borrowing with respect thereto;
(b) on or before the date of such Competitive Bid Loan Borrowing, but
prior to such Competitive Bid Loan Borrowing, the Administrative Agent
shall have received a Competitive Bid Loan Note payable to the order of
such Lender for each of the one or more Competitive Bid Loans to be made by
such Lender as part of such Competitive Bid Loan Borrowing, in a principal
amount equal to the principal amount of the Competitive Bid Loan to be
evidenced thereby and otherwise on such terms as were agreed to for such
Competitive Bid Loan in accordance with Sections 2.02 and 3.02; and
(c) on the date of such Competitive Bid Loan Borrowing the following
statements shall be true (and the acceptance by the Company of the proceeds
of such Competitive Bid Loan Borrowing shall constitute a representation
and warranty by the
64
Company that on the date of such Competitive Bid Loan Borrowing such
statements are true):
(i) The representations and warranties contained in Section
5.01 (except the Excluded Representations) are correct on and as of
the date of such Competitive Bid Loan Borrowing, before and after
giving effect to such Competitive Bid Loan Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date other than any such representations or warranties which, by
their terms, refer to a date other than the date of such Competitive
Bid Loan Borrowing;
(ii) No event has occurred and is continuing, or would result
from such Competitive Bid Loan Borrowing or from the application of
the proceeds therefrom, which constitutes a Default; and
(iii) No event has occurred and no circumstance exists as a
result of which the information concerning the Company that has been
provided to the Administrative Agent and each Lender by the Company in
connection herewith would include an untrue statement of a material
fact or omit to state any material fact or any fact necessary to make
the statements contained therein taken as a whole, in the light of the
time and circumstances under which they were made, not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of the Company. The
---------------------------------------------
Company represents and warrants as follows:
(a) The Company and each of its Material Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, (ii) is duly qualified and
in good standing as a foreign corporation in each other jurisdiction in
which it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so
qualify or be licensed would not have a Material Adverse Effect and (iii)
has all the requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now conducted except
where the failure to do so would not have a Material Adverse Effect.
(b) The execution, delivery and performance by the Company of the
Loan Documents, and the consummation of the transactions contemplated
hereby, are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene the
Company's certificate of incorporation or by-laws, (ii) violate any law,
rule or regulation (including, without limitation, the Securities Act of
65
1933 and the Securities Exchange Act of 1934 and the regulations
thereunder, and Regulations U and X issued by the Board of Governors of the
Federal Reserve System, each as amended from time to time), or order, writ,
judgment, injunction, decree, determination or award, (iii) conflict with
or result in the breach of, or constitute a default under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting the Company or any of its Subsidiaries
or any of their properties, except if such conflict, breach or default
would not have a Material Adverse Effect, or (iv) result in or require the
creation or imposition of any Lien upon or with respect to any of the
properties of the Company or its Subsidiaries. The Company is not in
violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other
instrument, except for such violation or breach which would not have a
Material Adverse Effect.
(c) Except as have been obtained, no authorization or approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other third party is required for the
due execution, delivery and performance by the Company of the Loan
Documents, or for consummation of the transactions contemplated hereby,
except and to the extent that any failure to obtain such authorization,
approval or other action would not have a Material Adverse Effect.
(d) Each of the Loan Documents is, and the Notes when delivered
hereunder will be, legal, valid and binding obligations of the Company
enforceable against the Company in accordance with its terms.
(e) (i) The Company has heretofore furnished to each of the Lenders
unaudited consolidated balance sheets of the Company and its Subsidiaries
as at March 23, 2001 and the related unaudited consolidated statements of
income and cash flows of the Company and its Subsidiaries for the period of
12 weeks ended on said date, and consolidated balance sheets of the Company
and its Subsidiaries as at December 29, 2000 and the related consolidated
statements of income and cash flows of the Company and its Subsidiaries for
the fiscal year ended December 29, 2000, with the opinion thereon (in the
case of said consolidated balance sheet and statements for the fiscal year
ended December 29, 2000) of Arthur Andersen LLP. All such financial
statements are complete and correct and fairly present the consolidated
financial condition of the Company and its Subsidiaries as at said
respective dates and the consolidated results of their operations for the
respective periods so presented all in accordance with GAAP. Since December
29, 2000, there has been no Material Adverse Change.
(f) No information, exhibit or report furnished by or on behalf of
the Company to the Administrative Agent or any Lender in connection with
the execution of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein taken as a whole, in the light of the time and
circumstances under and the time at which they were made, not misleading.
66
(g) There is no pending or threatened action or proceeding affecting
the Company or any of its Subsidiaries before any court, governmental
agency or arbitrator which (i) is reasonably likely to have a Material
Adverse Effect or (ii) purports to affect this Agreement or the
transactions contemplated hereby.
(h) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan that has resulted or could reasonably be expected
to result in a liability to the Company or its ERISA Affiliates in excess
of $5,000,000.
(i) Neither the Company nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that it has incurred any
Withdrawal Liability, and neither the Company nor any of its ERISA
Affiliates, to the best of the Company's knowledge and belief, is
reasonably expected to incur any Withdrawal Liability to any Multiemployer
Plan, in each case other than any Withdrawal Liability that would not have
a Material Adverse Effect.
(j) Neither the Company nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, except where such reorganization or termination would
not have a Material Adverse Effect.
(k) The Company and each of its Subsidiaries have filed, have caused
to be filed or have been included in all tax returns (federal, state, local
and foreign) required to be filed and have paid (or have accrued any taxes
shown that are not due with the filing of such returns) all taxes shown
thereon to be due, together with applicable interest and penalties, except
in any case where the failure to file any such return or pay any such tax
is not in any respect material to the Company or the Company and its
Subsidiaries taken as a whole.
ARTICLE VI
COVENANTS OF THE COMPANY
SECTION 6.01 Affirmative Covenants. So long as any obligations under
---------------------
this Agreement or any Note shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender shall have any Commitment hereunder, the Company will,
unless the Required Lenders shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
-------------------------
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA, the Securities Act of 1933 and all
Environmental Laws, except, in each case, any non-compliance which would
not have a Material Adverse Effect.
67
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
---------------------
Subsidiaries to pay and discharge, before the same shall become delinquent,
all taxes, assessments, claims and governmental charges or levies imposed
upon it or upon its property, except to the extent that any failure to do
so would not have a Material Adverse Effect; provided, however, that
-------- -------
neither the Company nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, claim or charge that is being contested
in good faith and by proper proceedings and as to which appropriate
reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each of its
------------------------
Subsidiaries to maintain, appropriate and adequate insurance with
responsible and reputable insurance companies or associations or with self-
insurance programs to the extent consistent with prudent practices of the
Company and its Subsidiaries or otherwise customary in their respective
industries in such amounts and covering such risks as is customary in the
industries in which the Company or such Subsidiary operates.
(d) Payment of Welfare Plans. Pay, and cause each of its Material
------------------------
Subsidiaries to pay, the aggregate annualized cost (including, without
limitation, the cost of insurance premiums) with respect to post-retirement
benefits under Welfare Plans for which the Company and its Material
Subsidiaries are liable.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
----------------------------------------
and cause each of its Material Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises;
provided, however, that (i) the Company and its Material Subsidiaries may
-------- -------
consummate any transaction permitted under Section 6.02(b) and (ii) neither
the Company nor such Subsidiary shall be required to preserve any right or
franchise (other than the corporate existence of each Borrower) when, in
the good faith business judgment of the Company, such preservation or
maintenance is neither necessary nor appropriate for the prudent management
of the business of the Company.
(f) Visitation Rights. At any reasonable time during normal business
-----------------
hours and upon reasonable prior notice and from time to time, permit the
Administrative Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and
books of account of, and visit the properties of, the Company and any of
its Subsidiaries, and to discuss the affairs, finances and accounts of the
Company and any of its Subsidiaries with any of their officers or directors
and with their independent certified public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
----------------
keep, proper books of record and account as are necessary to prepare
Consolidated financial statements in accordance with GAAP, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Company and each such Subsidiary in accordance
with GAAP.
68
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
------------------------------
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted, except where failure
to do so would not have a Material Adverse Effect.
(i) Reporting Requirements. Furnish to the Lenders:
----------------------
(i) as soon as 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, quarterly condensed and consolidated balance sheets and
consolidated statement of cash flows of the Company as of the end of
such quarter and statements of income of the Company for the period
commencing at the end of the previous fiscal year and ending with the
end of such quarter, certified by the chief accounting officer of the
Company (or another appropriate officer of the Company designated by
said chief accounting officer) and certificates as to compliance with
the terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 6.01(j),
provided that in the event of any change in GAAP used in preparation
--------
of such financial statements, the Company shall also provide, if
necessary for the determination of compliance with Section 6.01(j), a
statement of reconciliation conforming any information in such
certificates with GAAP;
(ii) as soon as available and in any event within 105 days
after the end of each fiscal year of the Company commencing with
fiscal year 2001 of the Company, certificates as to compliance with
the terms of this Agreement which are otherwise provided under clause
(i) above at the end of each fiscal quarter other than the last fiscal
quarter of the fiscal year and a copy of the annual report for such
year for the Company, containing audited financial statements for such
year certified by (a) Arthur Andersen LLP, (b) any other "Big Five"
accounting firm or (c) other independent public accountants acceptable
to the Required Lenders;
(iii) as soon as possible and in any event within five days
after the Company obtains notice of the occurrence of each Event of
Default and each Default continuing on the date of such statement, a
statement of the chief accounting officer of the Company setting forth
details of such Event of Default or Default and the action which the
Company has taken and proposes to take with respect thereto;
(iv) promptly after request therefor, copies of all regular and
periodic financial and/or other reports which the Company may from
time to time make available to any of its public security holders or
bond holders;
(v) promptly after the commencement thereof, notice of any
action or proceeding of the kind referred to in Section 5.01(g);
69
(vi) promptly and in any event within 15 days after the Company
or any ERISA Affiliate knows or should reasonably know that any ERISA
Event has occurred with respect to which the liability or potential
liability of the Company or any of its ERISA Affiliates exceeds or
could reasonably be expected to exceed $10,000,000, a statement of a
principal financial officer of the Company describing such ERISA Event
and the action, if any, which the Company or such ERISA Affiliate
proposes to take with respect thereto;
(vii) promptly and in any event within 10 Business Days after
receipt thereof by the Company or any ERISA Affiliate, copies of each
notice from the PBGC stating its intention to terminate any Plan or to
have a trustee appointed to administer any Plan where such action
would have a Material Adverse Effect;
(viii) with respect to liabilities or potential liabilities of
the Company or any of its ERISA Affiliates of $10,000,000 or more,
promptly and in any event within 20 Business Days after receipt
thereof by the Company or any ERISA Affiliate from the sponsor of a
Multiemployer Plan, a copy of each notice received by the Company or
any ERISA Affiliate concerning (1) the imposition of Withdrawal
Liability by a Multiemployer Plan, (2) the reorganization or
termination, within the meaning of Title IV of ERISA, of any
Multiemployer Plan or (3) the amount of liability incurred, or which
may be incurred, by the Company or any ERISA Affiliate in connection
with any event described in clause (1) or (2) above;
(ix) forthwith upon the occurrence of a Change of Control,
notice thereof with a reasonable description thereof; and
(x) promptly after request therefor, such other business and
financial information respecting the condition or operations,
financial or otherwise, of the Company or any of its Subsidiaries that
any Lender through the Administrative Agent may from time to time
reasonably request.
(j) Leverage Ratio. Maintain, as at the last day of each fiscal
--------------
quarter of the Company beginning with the third fiscal quarter in 2001, a
Leverage Ratio of not greater than 4.0 to 1.0.
SECTION 6.02 Negative Covenants. So long as any obligations under this
------------------
Agreement or any Note shall remain unpaid, any Letter of Credit shall be
outstanding or any Lender shall have any Commitment hereunder, the Company,
unless the Required Lenders shall otherwise consent in writing:
(a) Liens, Etc. Will not create, incur, assume or suffer to exist, or
----------
permit any of its Subsidiaries to create, incur, assume or suffer to exist,
any Lien on or with respect to
70
any of its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to
receive income, other than:
(i) Permitted Liens;
(ii) Liens outstanding on the Effective Date and described
on Schedule II as of the Effective Date ("Existing Liens"), and
--------------
any renewal, extension or replacement (or successive renewals,
extensions or replacements) thereof which does not encumber any
property of the Company or its Subsidiaries other than (1) the
property encumbered by the Lien being renewed, extended or
replaced, (2) property acquired by the Company or its
Subsidiaries in the ordinary course of business to replace
property covered by Existing Liens, and (3) de minimis other
property incidental to the property referred to in clause (1) or
(2) above;
(iii) Purchase Money Liens;
(iv) Liens on properties of (X) MVCI, any SLS Entity or
any of their respective Subsidiaries, and (Y) MICC and any other
Subsidiary of the Company principally engaged in the business of
finance, banking, credit, leasing, insurance or other similar
operations;
(v) Liens on properties of Subsidiaries of the Company,
which properties are located outside the United States of
America;
(vi) Liens securing COLI Debt; and
(vii) other Liens securing an aggregate principal
amount of Indebtedness or other obligations not to exceed
$300,000,000 at any time outstanding.
(b) Restrictions on Fundamental Changes. Will not, and will not
-----------------------------------
permit any of its Material Subsidiaries to:
(i) merge or consolidate with or into, or
(ii) convey, transfer, lease or otherwise dispose of
(whether in one transaction or a series of transactions) all or
substantially all of the property (whether now owned or hereafter
acquired) of the Company and its Subsidiaries, taken as a whole,
to, or
(iii) convey, transfer, lease or otherwise dispose of
(whether in one transaction or a series of transactions, and
whether by or pursuant to merger, consolidation or any other
arrangement), any property (whether now owned or hereafter
acquired) essential to the conduct of the lodging group of the
Company and its Subsidiaries, taken as a whole, to, or
71
(iv) enter into any partnership, joint venture, syndicate,
pool or other combination with,
any Person, in each case unless:
(w) no Default shall have occurred and then be continuing
or would result therefrom, and
(x) in the case of a merger or consolidation of the
Company, (1) the Company is the surviving entity or (2) the surviving
entity expressly assumes by an amendment to this Agreement duly
executed by such surviving entity all of the Company's obligations
hereunder and under the other the Loan Documents in a manner
satisfactory to the Administrative Agent and the Required Lenders.
(c) Transactions with Affiliates. Will not enter into, or permit any
----------------------------
of its Subsidiaries to enter into, any transaction with an Affiliate of the
Company (other than the Company's Subsidiaries) that would be material in
relation to the Company and its Subsidiaries, taken as a whole, even if
otherwise permitted under this Agreement, except on terms that are fair and
reasonable to the Company and its Subsidiaries and on terms no less
favorable to the Company or such Subsidiary (considered as a whole in
conjunction with all other existing arrangements and relationships with
such Affiliate) than the Company or such Subsidiary would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
(d) Dividends, Etc. Will not declare or make any dividend payment or
---------------
other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of capital stock of the
Company, or purchase, redeem or otherwise acquire for value (or permit any
of its Subsidiaries to do so) any shares of any class of capital stock of
the Company or any warrants, rights or options to acquire any such shares,
now or hereafter outstanding, in each case if, at the time thereof or after
giving effect thereto, an Event of Default has occurred and is continuing.
(e) Change in Nature of Business. Will not engage in, or permit any
----------------------------
of its Subsidiaries to engage in, any business that is material to the
Company and its Subsidiaries, taken as a whole, that is not carried on by
the Company or its Subsidiaries as of the Effective Date (or directly
related to a business carried on as of such date) and which would have a
Material Adverse Effect.
(f) Accounting Changes. Will not make or permit, or permit any of
------------------
its Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by GAAP.
(g) Margin Stock. Will not directly or indirectly use, or permit any
------------
other Borrower or any Subsidiary to use, any of the proceeds of any Loan in
a manner that violates or contravenes the Margin Regulations. Without
limiting the foregoing, the
72
Company (i) will promptly notify the Administrative Agent if at any time
more than 20% of the value of the assets of the Company and its
Subsidiaries (as determined in good faith by the Company) that are subject
to Section 6.02(a) or Section 6.02(b) consist of or are represented by
margin stock within the meaning of the Margin Regulations, and (ii) will
give the Administrative Agent at least 15 Business Days' prior written
notice of any direct or indirect use of any of the proceeds of any Loan to
buy or carry margin stock within the meaning of the Margin Regulations if,
after giving effect thereto, more than 20% of the value of the assets of
the Company and its Subsidiaries (as determined in good faith by the
Company) that are subject to Section 6.02(a) or Section 6.02(b) consist of
or are represented by margin stock within the meaning of the Margin
Regulations, and will, if requested by the Administrative Agent, provide to
the Administrative Agent prior to the making of such Loan a legal opinion
of counsel reasonably acceptable to the Administrative Agent confirming
that such use of proceeds will not contravene this Section 6.02(g) together
with appropriately executed and completed purpose statements on Form FR U-
1; provided that in lieu of such legal opinion and purpose statements, the
--------
Company may provide to the Administrative Agent, together with such written
notice, a certificate of the Company stating that at the date of such
certificate and after applying the proceeds of such Loan not more than 25%
of the value of the assets of the Company and its Subsidiaries (as
determined in good faith by the Company) that are subject to Section
6.02(a) or Section 6.02(b) consist of or are represented by margin stock
within the meaning of the Margin Regulations. Each Lender hereby confirms
to the Company and to the Administrative Agent that in extending or
maintaining credit hereunder it has not relied upon such margin stock as
collateral.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. If any of the following events
-----------------
("Events of Default") shall occur and be continuing:
-----------------
(a) (i) Any Borrower shall fail to pay any principal of any Loan when
the same becomes due and payable; or (ii) any Borrower shall fail to pay
any interest on any Loan, or any other payment under any Loan Document, for
a period of three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Borrower herein or by
any Borrower (or any of its officers) under or in connection with any Loan
Document shall prove to have been incorrect in any material respect when
made; or
(c) The Company shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 6.01(j) or in Section 6.02(b),
(c), (d), (e) or (g), or (ii) any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed if the
failure to perform or observe such other term, covenant or
73
agreement shall remain unremedied for 30 days after written notice thereof
shall have been given to the Company by the Administrative Agent or the
Required Lenders; or
(d) The Company or any of its Material Subsidiaries shall fail to pay
any principal of or premium or interest on any Indebtedness which is
outstanding in a principal amount of at least $50,000,000 in the aggregate
(but excluding Indebtedness evidenced by the Notes and Non-Recourse
Indebtedness) of the Company or such Subsidiary (as the case may be), when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Indebtedness; or any such
Indebtedness shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment,
including, without limitation, a prepayment required in connection with the
sale of the sole asset or all assets securing such Indebtedness), redeemed,
purchased or defeased, or an offer to prepay, redeem, purchase or defease
such Indebtedness shall be required to be made, in each case prior to the
stated maturity thereof; provided, however, that if there is acceleration
-------- -------
of any Indebtedness which is included under this clause (d) solely because
of a Guarantee by the Company or one of its Material Subsidiaries, an Event
of Default will not exist under this clause (d) so long as the Company or
such Material Subsidiary, as the case may be, fully performs its
obligations in a timely manner under such Guarantee upon demand therefor by
the beneficiary thereof; or
(e) The Company or any of its Material Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Company or any of its Material Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted
by it), either such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur;
or the Company or any of its Material Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this subsection
(e); or
(f) Any judgment or order for the payment of money in excess of
$25,000,000 shall be rendered against the Company or any of its Material
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 30 consecutive days during which a
74
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(g) Any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Company or any ERISA Affiliate related to
such ERISA Event) exceeds $20,000,000; or
(h) The Company or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount which, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Company and its ERISA Affiliates as Withdrawal Liability (determined as of
the date of such notification), exceeds $20,000,000 or requires payments
exceeding $10,000,000 per annum; or
(i) The Company or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Company and its ERISA Affiliates to all
Multiemployer Plans which are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the respective plan years of such Multiemployer
Plans immediately preceding the plan year in which the reorganization or
termination occurs by an amount exceeding $20,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the express consent, of the Required Lenders, by notice to the
Company, declare the obligation of each Lender to make Loans and of the Issuing
Bank to issue Letters of Credit to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with the express
consent, of the Required Lenders, by notice to the Company, declare the Notes,
all interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by each Borrower; provided, however, that
-------- -------
in the event of an actual or deemed entry of an order for relief with respect to
the Company or any of its Material Subsidiaries under the Federal Bankruptcy
Code, (A) the obligation of each Lender to make Loans and of the Issuing Bank to
issue Letters of Credit shall automatically be terminated and (B) the Notes, all
such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by each Borrower.
75
SECTION 7.02. Actions in Respect of the Letters of Credit Upon Event
------------------------------------------------------
of Default; L/C Cash Collateral Account; Investing of Amounts in the L/C Cash
-----------------------------------------------------------------------------
Collateral Account; Release.
---------------------------
(a) Upon (i) the occurrence and during the continuance of any Event
of Default and (ii) the making of the request or the granting of the
consent specified by Section 7.01 to authorize the Administrative Agent to
declare the Notes due and payable pursuant to the provisions of Section
7.01, the Administrative Agent may, and at the request of the Required
Lenders shall, irrespective of whether it is taking any of the actions
described in Section 7.01 or otherwise, make demand upon the Company to,
and forthwith upon such demand the Company will, pay to the Administrative
Agent on behalf of the Lenders in same day funds at the Administrative
Agent's office designated in such demand, for deposit in the L/C Cash
Collateral Account, an amount equal to the aggregate Available Amount of
all Letters of Credit then outstanding. If at any time the Administrative
Agent determines that any funds held in the L/C Cash Collateral Account are
subject to any equal or prior right or claim of any Person other than any
Agent and the Lenders pursuant to this Agreement or that the total amount
of such funds is less than the aggregate Available Amount of all Letters of
Credit, the Company will, forthwith upon demand by the Administrative
Agent, pay to the Administrative Agent, as additional funds to be deposited
and held in the L/C Cash Collateral Account, an amount equal to the excess
of (1) such aggregate Available Amount over (2) the total amount of funds,
if any, then held in the L/C Cash Collateral Account that the
Administrative Agent determines to be free and clear of any such equal or
prior right and claim.
(b) The Company hereby authorizes the Administrative Agent to open at
any time upon the occurrence and during the continuance of an Event of
Default a non-interest bearing account with the Administrative Agent at its
address designated in Section 9.02 in the name of the Company but under the
sole control and dominion of the Administrative Agent (the "L/C Cash
--------
Collateral Account"), and hereby pledges and assigns and grants to the
------------------
Administrative Agent on behalf of the Lenders a security interest in the
following collateral (the "L/C Cash Collateral Account Collateral"):
--------------------------------------
(i) the L/C Cash Collateral Account, all funds held therein and
all certificates and instruments, if any, from time to time
representing or evidencing the investment of funds held therein,
(ii) all L/C Cash Collateral Account Investments from time to
time, and all certificates and instruments, if any, from time to time
representing or evidencing the L/C Cash Collateral Account
Investments,
(iii) all notes, certificates of deposit, deposit accounts,
checks and other instruments from time to time delivered to or
otherwise possessed by the Administrative Agent for or on behalf of
the Company in substitution for or in addition to any or all of the
then existing L/C Cash Collateral Account Collateral,
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(iv) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the then
existing L/C Cash Collateral Account Collateral, and
(v) all proceeds of any and all of the foregoing L/C Cash
Collateral Account Collateral.
(c) If requested by the Company, the Administrative Agent will,
subject to the provisions of clause (e) below, from time to time (i) invest
amounts on deposit in the L/C Cash Collateral Account in such notes,
certificates of deposit and other debt instruments as the Company may
select and the Administrative Agent may approve and (ii) invest interest
paid on the notes, certificates of deposit and other instruments referred
to in clause (i) above, and reinvest other proceeds of any such notes,
certificates of deposit and other instruments which may mature or be sold,
in each case in such notes, certificates of deposit and other debt
instruments as the Company may select and the Administrative Agent may
approve (the notes, certificates of deposit and other instruments referred
to in clauses (i) and (ii) above being collectively "L/C Cash Collateral
-------------------
Account Investments"). Interest and proceeds that are not invested or
-------------------
reinvested in L/C Cash Collateral Account Investments as provided above
shall be deposited and held in the L/C Cash Collateral Account.
(d) Upon such time as (i) the aggregate Available Amount of all
Letters of Credit is reduced to zero and such Letters of Credit are expired
or terminated by their terms and all amounts payable in respect thereof,
including but not limited to principal, interest, commissions, fees and
expenses, have been paid in full in cash, and (ii) no Event of Default has
occurred and is continuing under this Agreement, the Administrative Agent
will pay and release to the Company or at its order (a) accrued interest
due and payable on the L/C Cash Collateral Account Investments and in the
L/C Cash Collateral Account, and (b) the balance remaining in the L/C Cash
Collateral Account after the application, if any, by the Administrative
Agent of funds in the L/C Cash Collateral Account to the payment of amounts
described in clause (i) of this subsection (d).
(e) (i) The Administrative Agent may, without notice to the
Company except as required by law and at any time or from time to time,
charge, set-off and otherwise apply all or any part of the L/C Cash
Collateral Account against the obligations of the Company in respect of
Letters of Credit (collectively, the "L/C Cash Collateral Account
---------------------------
Obligations") or any part thereof. The Administrative Agent agrees to
-----------
notify the Company promptly after any such set-off and application,
provided that the failure of the Administrative Agent to give such notice
--------
shall not affect the validity of such set-off and application.
(ii) The Administrative Agent may also exercise in
respect of the L/C Cash Collateral Account Collateral, in addition to other
rights and remedies provided
77
for herein or otherwise available to it, all the rights and remedies of a
secured party on default under the Uniform Commercial Code in effect in the
State of New York at that time (the "UCC") (whether or not the UCC applies
---
to the affected L/C Cash Collateral Account Collateral), and may also,
without notice except as specified below, sell the L/C Cash Collateral
Account Collateral or any part thereof in one or more parcels at public or
private sale, at any of the Administrative Agent's offices or elsewhere,
for cash, on credit or for future delivery, and upon such other terms as
the Administrative Agent may deem commercially reasonable. Each Borrower
agrees that, to the extent notice of sale shall be required by law, at
least ten days' notice to such Borrower of the time and place of any public
sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Administrative Agent shall not be
obligated to make any sale of L/C Cash Collateral Account Collateral
regardless of notice of sale having been given. The Administrative Agent
may adjourn any public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
(iii) Any cash held by the Administrative Agent as L/C
Cash Collateral Account Collateral and all cash proceeds received by the
Administrative Agent in respect of any sale of, collection from, or other
realization upon all or any part of the L/C Cash Collateral Account
Collateral may, in the discretion of the Administrative Agent, be held by
the Administrative Agent as collateral for, and/or then or at any time
thereafter be applied in whole or in part by the Administrative Agent
against, all or any part of the L/C Cash Collateral Account Obligations in
such order as the Administrative Agent shall elect. Any surplus of such
cash or cash proceeds held by the Administrative Agent and remaining after
payment in full of all the L/C Cash Collateral Account Obligations shall be
paid over to the Company or to whomsoever may be lawfully entitled to
receive such surplus.
(f) Upon the permanent reduction from time to time of the
aggregate Available Amount of all Letters of Credit in accordance with the
terms thereof, the Administrative Agent shall release to the Company
amounts from the L/C Cash Collateral Account in an amount equal to each
such permanent reduction; provided that the Administrative Agent shall not
--------
be obligated to reduce the funds or other L/C Cash Collateral Account
Collateral then held in the L/C Cash Collateral Account below that level
that the Administrative Agent reasonably determines is required to be
maintained after taking into consideration any rights or claims of any
Persons other than the Administrative Agent.
(g) In furtherance of the grant of the pledge and security
interest pursuant to this Section 7.02, the Company hereby agrees with each
Lender, the Issuing Bank and the Administrative Agent that the Company
shall give, execute, deliver, file and/or record any financing statement,
notice, instrument, document, agreement or other papers that may be
necessary or desirable (in the reasonable judgment of the Administrative
Agent) to create, preserve, perfect or validate the security interest
granted pursuant hereto or to
78
enable the Administrative Agent to exercise and enforce its rights
hereunder with respect to such pledge and security interest.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. Each Lender hereby appoints
------------------------
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided that the
--------
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this
Agreement or applicable law. The Administrative Agent agrees to give to each
Lender prompt notice of each notice given to it by any Borrower pursuant to the
terms of this Agreement.
SECTION 8.02. Reliance, Etc.
--------------
(a) None of the Agents or any of their respective directors,
officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Administrative Agent: (i) may treat the payee of any Note as the holder
thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender which is the payee of such Note,
as assignor, and an Eligible Assignee, as assignee, as provided in Section
9.07; (ii) may consult with legal counsel (including counsel for any
Borrower), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall
not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with
this Agreement; (iv) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of any Borrower or to inspect the
property (including the books and records) of any Borrower; (v) shall not
be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of this Agreement by acting upon any
notice, consent, certificate or other instrument or writing (which may be
by telecopier, telegram,
79
cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
(b) The Joint Lead Arrangers and Joint Book Managers, as such, the
Syndication Agent, as such, and the Documentation Agents, as such, each
referred to on the cover page hereto, shall have no duties or obligations
whatsoever under or with respect to this Agreement, the Notes or any other
document or any matter related thereto.
SECTION 8.03. The Agents and their Affiliates as Lenders. With
------------------------------------------
respect to its respective Commitment as a Lender, the Loans made by it as a
Lender and the Notes issued to it as a Lender, each of the Agents party to this
Agreement as Lenders shall have the same rights and powers under this Agreement
as any other Lender in its capacity as a Lender and may exercise the same as
though it were not an Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include each Agent in its individual capacity as
a Lender. Each Agent, in its individual capacity as a Lender, and its affiliates
may accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, any Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of any
Borrower or any such Subsidiary, all as if each Agent was not an Agent under
this Agreement and without any duty to account therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it
----------------------
has, independently and without reliance upon any Agent or any other Lender and
based on the financial statements referred to in Section 5.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify each
---------------
Agent (in each case to the extent not reimbursed by the Company), ratably
according to their respective pro rata share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against such Agent in any way relating to
or arising out of this Agreement or any action taken or omitted by such Agent
under this Agreement in its respective capacity as an agent hereunder, provided
--------
that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
each Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees but excluding normal administrative expenses
expressly excluded under Section 9.04(a)) incurred by such Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that such Agent is not reimbursed for such
expenses by the Company as required under Section 9.04(a).
80
SECTION 8.06. Successor Administrative Agent. The Administrative Agent
------------------------------
may resign at any time by giving written notice thereof to the Lenders and the
Company and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Administrative Agent with the consent of the
Company, which consent shall not be unreasonably withheld. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which shall be an Eligible Assignee and a commercial bank organized under the
laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article VIII 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.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
----------------
provision of this Agreement or the Revolving Loan Notes, nor consent to any
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
-------- -------
or consent shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive any of the conditions specified in Section 4.01, (b)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the Revolving Loan
Notes or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Revolving Loan Notes
or any fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Revolving Loan
Notes, or the number of Lenders, which shall be required for the Lenders or any
of them to take any action hereunder, (f) release the guarantee set forth in
Section 10.01 or (g) amend this Section 9.01; and provided further that (1) no
-------- -------
amendment, waiver or consent shall affect the rights or duties of any Agent or a
Swing Loan Bank, as the case may be, under this Agreement or any Note, unless
such amendment, waiver or consent is in writing and signed by such Agent or such
Swing Loan Bank, as the case may be, in addition to the Lenders required above
to take such action and (2) no amendment, waiver or consent shall affect the
rights or duties of any Lender that has made a Competitive Bid Loan unless such
amendment, waiver or consent is in writing and signed by such Lender in
81
respect of such Competitive Bid Loan, in addition to the Lenders required above
to take such action.
SECTION 9.02. Notices, Etc. All notices and other communications
-------------
provided for hereunder shall be in writing (including telecopy, telegraphic,
telex or cable communication) and mailed, telegraphed, telecopied, telexed,
cabled or delivered, if to any Borrower, to the Company at 10400 Fernwood Road,
Bethesda, Maryland 20817, Attention: Assistant Treasurer, Dept. 52/924.11, with
a copy to the same address, Attention: Assistant General Counsel- Corporate
Finance, Dept. 52/923; if to any Bank, to its Domestic Lending Office and its
Foreign Lending Office, each as specified opposite its name on Schedule I
hereto; if to any other Lender, to its Domestic Lending Office and its Foreign
Lending Office, each as specified in the Acceptance pursuant to which it became
a Lender; if to any Agent, to its address specified on the signature pages
hereto; and if to the Administrative Agent, at its address at 2 Penns Way, Suite
200, New Castle, Delaware 19720, Attention: Betsy Wier, telephone no. 302-894-
6025, telecopier no. 302-894-6120, with copies to Christen Laughton, telephone
no. 302-894-6005, telecopier no. 302-894-6120; or to the Company or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, to each other party, at such other
address as shall be designated by such party in a written notice to the Company
and the Administrative Agent. All such notices and communications shall, (a)
when mailed, be effective three Business Days after the same is deposited in the
mails, (b) when mailed for next day delivery by a reputable freight company or
reputable overnight courier service, be effective one Business Day thereafter,
and (c) when sent by telegraph, telecopy, telex or cable, be effective when the
same is telegraphed, telecopied and receipt thereof is confirmed by telephone or
return telecopy, confirmed by telex answerback or delivered to the cable
company, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III or VIII shall not be effective
until received by the Administrative Agent.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
-------------------
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses.
------------------
(a) The Company agrees to pay, whether or not any of the transactions
contemplated hereby are consummated, on demand (x) all reasonable costs and
expenses in connection with the preparation (excluding normal travel and
related expenses incurred by the personnel of the Administrative Agent),
execution, delivery, administration (excluding those which are customarily
borne by the Administrative Agent), modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder, and
(y) the reasonable fees and expenses of counsel to the Administrative Agent
and with respect to advising the Administrative Agent as to its rights and
responsibilities under this Agreement. The Company further agrees to pay on
demand all
82
reasonable expenses of the Lenders (including, without limitation,
reasonable counsel (including, without duplication, internal counsel) fees
and expenses) in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes
and the other documents to be delivered hereunder, including, without
limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 9.04(a).
(b) The Company agrees to indemnify and hold harmless each Agent,
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and
-----------------
against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
that may be incurred by or asserted or awarded against any Indemnified
Party in its agent or lending capacity under, or otherwise in connection
with, the Loan Documents, in each case arising out of or in connection with
or by reason of, or in connection with the preparation for a defense of,
any investigation, litigation or proceeding arising out of, related to or
in connection with the Loan Documents, the proposed or actual use of the
proceeds therefrom or any of the other transactions contemplated hereby,
whether or not such investigation, litigation or proceeding is brought by
the Company, its shareholders or creditors or an Indemnified Party or any
other person or an Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated, except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct.
(c) If (i) any payment of principal of any Eurocurrency Rate Loan is
made other than on the last day of the Interest Period for such Loan (or
any payment of principal of any Quoted Rate Swing Loan is made other than
on the maturity date of such Swing Loan), as a result of a payment pursuant
to Section 2.15(c) or 3.05 or acceleration of the maturity of the Notes
pursuant to Section 7.01 or for any other reason, or (ii) the Company gives
notice of a Loan conversion pursuant to Section 2.09(c), then the Company
shall, upon demand by any Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of
such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses which it may reasonably incur as a
result of such payment, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Loan.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
----------------
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 7.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 7.01, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held (other than
83
deposits at any account with respect to which such account states that the
Company is acting in a fiduciary capacity) and other indebtedness at any time
owing by such Lender to or for the credit or the account of the Company against
any and all of the obligations of the Company now or hereafter existing under
this Agreement and any Note held by such Lender, whether or not such Lender
shall have made any demand under this Agreement or such Note and although such
obligations may be unmatured. Each Lender agrees promptly to notify the Company
after any such set-off and application made by such Lender, provided that the
--------
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of set-
off) which such Lender may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
--------------
when it shall have been executed by the Company, each Agent and each Bank and
thereafter shall be binding upon and inure to the benefit of the Borrowers, each
Agent and each Lender and their respective successors and assigns, except that
no Borrower shall have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations.
------------------------------
(a) Each Lender may assign to one or more banks or other entities all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Loans owing to it
and the Note or Notes held by it); provided, however, that:
-------- -------
(i) each such assignment shall be of a constant, and
not a varying, percentage of all rights and obligations under this
Agreement (other than any Competitive Bid Loans or Competitive Bid
Loan Notes),
(ii) the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment other than an
assignment to another Lender (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no
event be less than $10,000,000 and shall be an integral multiple of
$1,000,000 in excess thereof,
(iii) each such assignment shall be to an Eligible
Assignee, and (unless such assignment shall be to a Subsidiary of the
assigning Lender or to a Subsidiary of the bank holding company of
which the assigning Lender is a Subsidiary) the Company, the
Administrative Agent and the Letter of Credit Agent shall have
consented to such assignment (which consents shall not be unreasonably
withheld or delayed),
(iv) after giving effect to such assignment, the
assigning Lender (together with all Affiliates of such Lender) shall
continue to hold no less than 25% of its original Commitment hereunder
and of the Loans owing to it, unless the Company shall otherwise
agree,
84
(v) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with
any Note or Notes subject to such assignment and a processing and
recordation fee of $2,500, and
(vi) unless the Company and the Administrative Agent
otherwise agree, the Termination Date of the assignee under each such
assignment shall be deemed to be the then Final Termination Date.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall relinquish its rights and be released from its
obligations under this Agreement, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance.
Notwithstanding anything to the contrary contained herein except for
the conditions set for in clause (iv) of this Section 9.07(a), any Bank (a
"Granting Bank") may grant to a special purpose funding vehicle (a "SPC"),
------------- ---
identified as such in writing from time to time by the Granting Bank to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Advance that such Granting Bank would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing
-------------
herein shall constitute a commitment by any SPC to make any Advance, (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Advance, the Granting Bank shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Bank to the same extent, and as if, such
Advance were made by such Granting Bank. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Bank). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 9.07 except for the
conditions set forth in clause (iii) of this Section 9.07(a), any SPC may (i)
with notice to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Advances to the Granting Bank or to any
Eligible Assignee (consented to by the Borrower, the Administrative Agent and
the Letter of Credit Agent) providing liquidity and/or credit support to or for
the account of such SPC to support the funding or maintenance of Advances and
(ii) disclose on a confidential basis any non-public information relating to its
Advances to any rating agency,
85
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This section may not be amended without the
written consent of the SPC.
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Borrower or the performance
or observance by any Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section
5.01 and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such Assignment
and Acceptance; (iv) such assignee will, independently and without reliance
upon any Agent, such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative
Agent and the Letter of Credit Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent and the Letter of Credit Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(c) Each New Lender shall submit a New Commitment Acceptance in
accordance with the provisions of Section 2.06(b). Upon the execution,
delivery, acceptance and recording of a New Commitment Acceptance, from and
after the Increase Date related thereto such New Lender shall be a party
hereto and have the rights and obligations of a Lender hereunder having the
Commitment specified therein (or such lesser Commitment as shall be
allocated to such New Lender in accordance with Section 2.06(b)(vi) or
2.15(d)). By executing and delivering a New Commitment Acceptance, the New
Lender thereunder confirms to and agrees with the other parties hereto as
follows: (i) such New Lender hereby agrees that no Lender has made any
representation or warranty, or assumes any responsibility with respect to,
(x) any statements, warranties or representations made in or in connection
with this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument
or document furnished pursuant hereto or (y) the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document
86
furnished pursuant hereto; (ii) such New Lender confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 5.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such New Commitment Acceptance; (iii) such New
Lender will, independently and without reliance upon any Agent or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (iv) such New Lender
confirms that it is an Eligible Assignee; (v) such New Lender appoints and
authorizes the Administrative Agent and the Letter of Credit Agent to take
such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent and the Letter of
Credit Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vi) such New Lender agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance and
each New Commitment Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Revolving Loans owing to,
each Lender from time to time (the "Register"). The entries in the Register
--------
shall be conclusive and binding for all purposes, absent manifest error,
and each Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection
by the Company or any Lender at any reasonable time and from time to time
upon reasonable prior notice. The Administrative Agent shall provide the
Company with a copy of the Register upon request.
(e) (i) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that it
is an Eligible Assignee, together with any Revolving Loan Note or
Notes subject to such assignment, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C-1 hereto, (1) accept such
Assignment and Acceptance, (2) record the information contained
therein in the Register and (3) give prompt notice thereof to the
Company. Within five Business Days after its receipt of such notice,
the relevant Borrower, at its own expense, shall execute and deliver
to the Administrative Agent in exchange for the surrendered Revolving
Loan Note or Notes a new Revolving Loan Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and a new Revolving Loan
Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Revolving Loan Notes
shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Revolving Loan Note or Notes,
shall be dated the effective date of
87
such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit A-1 hereto. Such surrendered Revolving Note or
Notes shall be marked "canceled" and shall be returned promptly to the
Company.
(ii) Upon its receipt of a New Commitment Acceptance
executed by a New Lender representing that it is an Eligible Assignee,
the Administrative Agent shall, if such New Commitment Acceptance has
been completed and is in substantially the form of Exhibit C-3 hereto,
(1) accept such New Commitment Acceptance, (2) record the information
contained therein in the Register and (3) give prompt notice thereof
to the Company. Within five Business Days after its receipt of such
notice, the relevant Borrower, at its own expense, shall execute and
deliver to the Administrative Agent a new Revolving Loan Note to the
order of such New Lender in an amount equal to the Commitment assumed
by it pursuant to such New Commitment Acceptance. Such new Revolving
Loan Note shall be dated the relevant Increase Date and shall
otherwise be in substantially the form of Exhibit A-l hereto.
(f) Each Lender may sell participations to one or more banks or
other entities in or to a portion of its rights and obligations under this
Agreement (including, without limitation, a portion of its Commitment, the
Loans owing to it and the Note or Notes held by it); provided, however,
-------- -------
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment hereunder) shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder
of any such Note for all purposes of this Agreement, (iv) the Borrowers,
the Agents and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations
under this Agreement, (v) except in the case of a participation involving a
Lender and one of its Affiliates (and this exception shall apply only so
long as the participant remains an Affiliate of such Lender), the parties
to each such participation shall execute a participation agreement in
substantially the form of the Participation Agreement, and (vi) no
participant under any such participation shall have any right to approve
any amendment to or waiver of any provision of any Loan Document, or any
consent to any departure by any Borrower therefrom, except to the extent
that such amendment, waiver or consent would alter the principal of, or
interest on, the Loan or Loans in which such participant is participating
or any fees or other amounts payable to the Lenders hereunder, or postpone
any date fixed for any payment of principal of, or interest on, the Loans
or any fees or other amounts payable hereunder. Each Lender shall provide
the Company with a list of entities party to all Participation Agreements
with such Lender upon request.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.07, disclose to the assignee or participant or proposed assignee
or participant, any information, including Confidential Information,
relating to the Borrowers furnished to such Lender by or on behalf of the
Borrowers; provided that, prior to any such disclosure of Confidential
--------
88
Information, the assignee or participant or proposed assignee or
participant shall be informed of the confidential nature of such
Confidential Information and shall agree to (i) preserve the
confidentiality of any Confidential Information relating to the Borrowers
received by it from such Lender and (ii) be bound by the provisions of
Section 9.11.
(h) Notwithstanding any other provision in this Section 9.07, no
Lender may assign its interest to an Eligible Assignee if, as of the
effective date of such assignment, such assignment would increase the
amount of Taxes, Other Taxes or increased costs payable under Sections 2.12
or 3.05, respectively.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time and without the consent of the
Administrative Agent or any Borrower create a security interest in all or
any portion of its rights under this Agreement (including, without
limitation, the Loans owing to it and the Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
SECTION 9.08. No Liability of the Issuing Bank or the Letter
----------------------------------------------
of Credit Agent. Each Borrower assumes all risks of the acts or omissions of any
---------------
beneficiary or transferee of any Letter of Credit with respect to its use of
such Letter of Credit. Neither the Issuing Bank, the Letter of Credit Agent, nor
any of their respective officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that each
------
Borrower shall have a claim against the Issuing Bank, and the Issuing Bank shall
be liable to such Borrower, to the extent of any direct, but not consequential,
damages suffered by such Borrower that were caused by (i) the Issuing Bank's
willful misconduct or gross negligence in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank's willful failure to make lawful payment under a
Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Bank acting in
good faith may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 9.09. Governing Law. This Agreement and the Notes shall be
-------------
governed by, and construed in accordance with, the law of the State of New York.
SECTION 9.10. Execution in Counterparts. This Agreement may be
-------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall
89
constitute one and the same agreement. Delivery of an executed counterpart of
this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.11. Confidentiality. None of the Agents or any Lender shall
---------------
disclose any Confidential Information to any Person without the consent of the
Company, other than (a) to such Person's Affiliates and their officers,
directors, employees, agents, counsel, auditors and advisors of such Person or
such Person's Affiliates, (b) to a proposed assignee or to a proposed
participant; provided that prior to any such disclosure, the proposed assignee
--------
or the participant shall deliver to the Company a written agreement to preserve
the confidentiality of any Confidential Information to the extent required by
this Agreement, and then only on a confidential basis, (c) as required by any
law, rule or regulation or judicial process, (d) in connection with any
litigation to which any Lender or the Administrative Agent is a party or in
connection with the exercise of any remedy hereunder or under any Note (provided
--------
that, in the case of this clause (d), such Lender or the Administrative Agent,
as the case may be, uses reasonable efforts under the circumstances to obtain
reasonable assurances that confidential treatment will be accorded to such
information in connection with such litigation or exercise) and (e) as requested
or required by any state, federal or foreign authority or examiner regulating
banks or banking or any aspects of any Lender's activities.
SECTION 9.12. Jurisdiction, Etc.
------------------
(a) Each of the parties hereto (and each Designated Borrower, by its
acceptance of the proceeds of Loans made to it) hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any New York State court or federal court of the United
States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
agreement or the other Loan Documents, or for recognition or enforcement of
any judgment, and each of the parties hereto and each Designated Borrower
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in any such New
York State or, to the extent permitted by law, in such federal court. Each
of the parties hereto and each Designated Borrower agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right
that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents in the courts of any
jurisdiction.
(b) Each of the parties hereto and each Designated Borrower
irrevocably and unconditionally waives, to the fullest extent it may
legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out
of or relating to this Agreement or the other Loan Documents in any New
York State or federal court. Each of the parties hereto and each Designated
Borrower hereby irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
90
SECTION 9.13. WAIVER OF JURY TRIAL. EACH BORROWER, EACH AGENT AND EACH
--------------------
OF THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS OR
THE ACTIONS OF ANY AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 9.14. Judgment Currency. This is an international loan
-----------------
transaction in which the specification of Dollars or an Alternate Currency, as
the case may be (the "Specified Currency"), any payment in New York City or the
------------------
country of the Specified Currency, as the case may be (the "Specified Place"),
---------------
is of the essence, and the Specified Currency shall be the currency of account
in all events relating to Loans denominated in the Specified Currency. The
payment obligations of the Borrowers under this Agreement and the Notes shall
not be discharged by an amount paid in another currency or in another place,
whether pursuant to a judgment or otherwise, to the extent that the amount so
paid on conversion to the Specified Currency and transfer to the Specified Place
under normal banking procedures does not yield the amount of the Specified
Currency at the Specified Place due hereunder. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due hereunder in the
Specified Currency into another currency (the "Second Currency"), the rate of
---------------
exchange which shall be applied shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding that on
which such judgment is rendered. The obligation of each Borrower in respect of
any such sum due from it to the Administrative Agent or any Lender hereunder (an
"Entitled Person") shall, notwithstanding the rate of exchange actually applied
---------------
in rendering such judgment, be discharged only to the extent that on the
Business Day following receipt by such Entitled Person of any sum adjudged to be
due hereunder or under the Notes in the Second Currency such Entitled Person may
in accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Second Currency so
adjudged to be due; and each Borrower hereby, as a separate obligation and
notwithstanding any such judgment, agrees to indemnify such Entitled Person
against, and to pay such Entitled Person on demand in the Specified Currency,
any difference between the sum originally due to such Entitled Person in the
Specified Currency and the amount of the Specified Currency so purchased and
transferred.
SECTION 9.15. European Monetary Union.
-----------------------
(a) Payments by the Administrative Agent Generally. With respect to
----------------------------------------------
the payment of any amount denominated in Euros, the Administrative Agent
shall not be liable to any of the Borrowers or any of the Lenders in any
way whatsoever for any delay, or the consequences of any delay, in the
crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have
taken all relevant steps to achieve, on the date required by this
Agreement, the payment of such amount in immediately available, freely
transferable, cleared funds (in Euros) to the account of any Borrower or
any Lender in the Principal Financial Center in
91
the Participating Member State which such Borrower or such Lender, as the
case may be, shall have specified for such purpose. For the purposes of
this paragraph, "all relevant steps" means all such steps as may be
------------------
prescribed from time to time by the regulations or operating procedures of
such clearing or settlement system as the Administrative Agent may from
time to time determine for the purpose of clearing or settling payments in
Euros.
(b) Other Consequential Changes. Without prejudice to the respective
---------------------------
liabilities of the Borrowers to the Lenders and the Lenders to the
Borrowers under or pursuant to this Agreement, except as expressly provided
in this Section, each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from
time to time reasonably specify to be necessary or appropriate to reflect
the introduction of or changeover to Euros in Participating Member States.
ARTICLE X
GUARANTEE
SECTION 10.01. Guarantee. The Company hereby guarantees to
---------
each Lender and the Administrative Agent and their respective successors and
assigns the prompt payment in full when due (whether at stated maturity, by
acceleration, by optional prepayment or otherwise) of the principal of and
interest on the Loans made by the Lender to, and the Notes held by each Lender
of, each Designated Borrower and all other amounts from time to time owing to
the Lenders or the Administrative Agent by any Designated Borrower under this
Agreement pursuant to its Designation Letter and under the Notes, in each case
strictly in accordance with the terms thereof (such obligations being herein
collectively called the "Guaranteed Obligations"). The Company hereby further
----------------------
agrees that if any Designated Borrower shall fail to pay in full when due
(whether at stated maturity, by acceleration, by optional prepayment or
otherwise) any of the Guaranteed Obligations, the Company will promptly pay the
same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
by acceleration or otherwise) in accordance with the terms of such extension or
renewal.
SECTION 10.02. Obligations Unconditional.
-------------------------
(a) The obligations of the Company hereunder are unconditional
irrespective of (i) the value, genuineness, validity, regularity or
enforceability of any of the Guaranteed Obligations, (ii) any modification,
amendment or variation in or addition to the terms of any of the Guaranteed
Obligations or any covenants in respect thereof or any security therefor,
(iii) any extension of time for performance or waiver of performance of any
covenant of any Designated Borrower or any failure or omission to enforce
any right with regard to any of the Guaranteed Obligations, (iv) any
exchange, surrender, release of any
92
other guaranty of or security for any of the Guaranteed Obligations, or (v)
any other circumstance with regard to any of the Guaranteed Obligations
which may or might in any manner constitute a legal or equitable discharge
or defense of a surety or guarantor, it being the intent hereof that the
obligations of the Company hereunder shall be absolute and unconditional
under any and all circumstances.
(b) The Company hereby expressly waives diligence, presentment,
demand, protest, and all notices whatsoever with regard to any of the
Guaranteed Obligations and any requirement that the Administrative Agent or
any Lender exhaust any right, power or remedy or proceed against any
Designated Borrower hereunder or under the Designation Letter of such
Designated Borrower or any Note of such Designated Borrower or any other
guarantor of or any security for any of the Guaranteed Obligations.
SECTION 10.03. Reinstatement. The guarantee in this Article X shall be
-------------
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Designated Borrower in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by any holder(s) of any of the
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise.
SECTION 10.04. Subrogation. Until the termination of the Commitments
-----------
and the payment in full of the principal of and interest on the Loans and all
other amounts payable to the Administrative Agent or any Lender hereunder, the
Company hereby irrevocably waives all rights of subrogation or contribution,
whether arising by operation of law (including, without limitation, any such
right arising under the Federal Bankruptcy Code) or otherwise, by reason of any
payment by it pursuant to the provisions of this Article X.
SECTION 10.05. Remedies. The Company agrees that, as between the
--------
Company on the one hand and the Lenders and the Administrative Agent on the
other hand, the obligations of any Designated Borrower guaranteed under this
Agreement may be declared to be forthwith due and payable, or may be deemed
automatically to have been accelerated, as provided in Article VII, for purposes
of Section 10.01 hereof notwithstanding any stay, injunction or other
prohibition (whether in a bankruptcy proceeding affecting such Designated
Borrower or otherwise) preventing such declaration as against such Designated
Borrower and that, in the event of such declaration or automatic acceleration
such obligations (whether or not due and payable by such Designated Borrower)
shall forthwith become due and payable by the Company for purposes of said
Section 10.01.
SECTION 10.06. Continuing Guarantee. The guarantee in this Article X
--------------------
is a continuing guarantee and shall apply to all Guaranteed Obligations whenever
arising.
93
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
The Borrower
------------
MARRIOTT INTERNATIONAL, INC.
By /s/ Arne M. Sorenson
-------------------------------------
Name: Arne M. Sorenson
Title: Executive Vice President and Chief
Financial Officer
The Administrative Agent
------------------------
CITIBANK, N.A.,
as Administrative Agent
By /s/ Steven R. Victorin
-----------------------------------
Name: Steven R. Victorin
Title: Vice President
The Letter of Credit Agent
--------------------------
THE BANK OF NOVA SCOTIA,
as Letter of Credit Agent
By /s/ Todd S. Meller
-----------------------------------
Name: Todd S. Meller
Title: Managing Director
Address:
One Liberty Plaza
New York, New York 10006
94
COMMITMENT BANKS
---------- -----
$89,000,000 CITIBANK, N.A.
By /s/ Steven R. Victorin
--------------------------------
Name: Steven R. Victorin
Title: Vice President
$89,000,000 THE BANK OF NOVA SCOTIA
By /s/ Todd S. Meller
--------------------------------
Name: Todd S. Meller
Title: Managing Director
$73,000,000 BANK OF AMERICA, N.A.
By /s/ Ansel McDowell
--------------------------------
Name: Ansel McDowell
Title: Principal
$73,000,000 THE CHASE MANHATTAN BANK
By /s/ John F. Mix
--------------------------------
Name: John F. Mix
Title: Vice President
$73,000,000 FLEET NATIONAL BANK
By /s/ Roger C. Boucher
--------------------------------
Name: Roger C. Boucher
Title: Director
95
$64,000,000 MELLON BANK, N.A.
By /s/ Maria N. Sisto
--------------------------------
Name: Maria N. Sisto
Title: Vice President
$64,000,000 MERRILL LYNCH BANK USA
By /s/ D. Kevin Imlay
--------------------------------
Name: D. Kevin Imlay
Title: Senior Credit Officer
$64,000,000 SUNTRUST BANK
By /s/ Paul R. Beliveau
--------------------------------
Name: Paul R. Beliveau
Title: Vice President
$64,000,000 HSBC BANK USA
By /s/ Johan Sorensson
--------------------------------
Name: Johan Sorensson
Title: First Vice President
$60,000,000 COMERICA BANK
By /s/ Jeffrey M. Lafferty
--------------------------------
Name: Jeffrey M. Lafferty
Title: Account Representative
96
$57,000,000 DEUTSCHE BANK AG, NEW YORK
BRANCH
By /s/ Stephen P. Lapham
---------------------------------
Name: Stephen P. Lapham
Title: Director
By /s/ Brenda Casey
---------------------------------
Name: Brenda Casey
Title: Vice President
$50,000,000 BANCA DI ROMA - NEW YORK
BRANCH
By /s/ C. Strike
---------------------------------
Name: C. Strike
Title: Assistant Vice President
By /s/ S. Paley
---------------------------------
Name: S. Paley
Title: First Vice President
$50,000,000 BANCA NAZIONALE DEL LAVORO
S.P.A. NEW YORK BRANCH
By /s/ Giulio Giovine
---------------------------------
Name: Giulio Giovine
Title: Vice President
By /s/ Carlo Vecchi
---------------------------------
Name: Carlo Vecchi
Title: Senior Vice President
97
$50,000,000 BARCLAYS BANK PLC
By /s/ Nicholas A. Bell
---------------------------------
Name: Nicholas A. Bell
Title: Director
$50,000,000 THE BANK OF NEW YORK
By /s/ Steven Cavaluzzo
---------------------------------
Name: Steven Cavaluzzo
Title: Vice President
$50,000,000 CREDIT SUISSE FIRST BOSTON
By /s/ Bill O'Daly
---------------------------------
Name: Bill O'Daly
Title: Vice President
By /s/ William S. Lutkins
---------------------------------
Name: William S. Lutkins
Title: Vice President
$50,000,000 FIRST UNION NATIONAL BANK
By /s/ Nicholas A.J. Hahn
---------------------------------
Name: Nicholas A.J. Hahn
Title: AVP
98
$50,000,000 FUJI BANK
By /s/ Raymond Ventura
---------------------------------
Name: Raymond Ventura
Title: Senior Vice President
$50,000,000 SUMITOMO MITSUI BANKING
CORPORATION
By /s/ Edward D. Henderson, Jr.
---------------------------------
Name: Edward D. Henderson, Jr.
Title: Senior Vice President
$50,000,000 WACHOVIA, N.A.
By /s/ Meg Beveridge
---------------------------------
Name: Meg Beveridge
Title: Vice President
$45,000,000 BANK OF HAWAII
By /s/ Donna R. Parker
---------------------------------
Name: Donna R. Parker
Title: Vice President
$40,000,000 ALLFIRST BANK
By /s/ Shelly M. Trimble
---------------------------------
Name: Shelly M. Trimble
Title: Vice President
99
$35,000,000 BANK ONE, NA
By /s/ Dennis J. Redpath
----------------------------------
Name: Dennis J. Redpath
Title: Director, Capital Markets
$35,000,000 FIRST HAWAIIAN BANK
By /s/ Seth A. Bond
----------------------------------
Name: Seth A. Bond
Title: Assistant Vice President
$25,000,000 CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Mary P. Daly
----------------------------------
Name: Mary P. Daly
Title: Vice President
$25,000,000 LEHMAN COMMERCIAL PAPER, INC.
By /s/ Michele Swanson
----------------------------------
Name: Michele Swanson
Title: Authorized Signatory
$25,000,000 RIGGS BANK N.A.
By /s/ Marian Egge
----------------------------------
Name: Marian Egge
Title: Vice President
100
$25,000,000 THE SANWA BANK, LIMITED
By /s/ John T. Feeney
--------------------------------
Name: John T. Feeney
Title: Vice President
$25,000,000 WELLS FARGO BANK, NATIONAL
ASSOCIATION
By /s/ Lori A. Ross
--------------------------------
Name: Lori A. Ross
Title: Vice President
101
SCHEDULE I
Applicable Lending Offices
--------------------------------------------------------------------------------
CITIBANK, N.A. THE BANK OF NOVA SCOTIA
Domestic Lending Office: Domestic Lending Office:
2 Penns Way, Suite 200 One Liberty Plaza
New Castle, Delaware 19720 New York, NY 10006
Attn: Betsy Wier Attn: Pier Griffith
Fax: 302-894-6120 Fax: (212) 225-5145
Tele: 302-894-6025 Tele: (212) 225-5084
With copies to Christen Laughton Eurodollar Lending Office
Fax: 302-894-6120 One Liberty Plaza
Tele: 302-894-6005 New York, NY 10006
Attn: Pier Griffith
Eurodollar Lending Office: Fax: (212) 225-5145
2 Penns Way, Suite 200 Tele: (212) 225-5084
New Castle, Delaware 19720
Attn: Betsy Wier
Fax: 302-894-6120
Tele: 302-894-6025
With copies to Christen Laughton
Fax: 302-894-6120
Tele: 302-894-6005
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
BANK OF AMERICA, N.A. FLEET NATIONAL BANK
Domestic Lending Office: Domestic Lending Office:
901 Main Street, 51st Floor 100 Federal Street
Dallas, TX 75202 MA DE 10010A
Attn: Ansel McDowel Boston, MA 02110
Fax: 214-209-0085 Attn: Roger Boucher
Tele: 214-209-0014 Fax: 617-434-0601
Tele: 617-434-3951
Eurodollar Lending Office:
901 Main Street, 51/st/ Floor Eurodollar Lending Office:
Dallas, TX 75202 100 Federal Street
Attn: Ansel McDowel MA DE 10010A
Fax: 214-209-0085 Boston, MA 02110
Tele: 214-209-0014 Attn: Roger Boucher
Fax: 617-434-0601
Tele: 617-434-3951
--------------------------------------------------------------------------------
THE CHASE MANHATTAN BANK MELLON BANK, N.A.
Domestic Lending Office: Domestic Lending Office:
270 Park Avenue, 31st Floor 3 Mellon Bank Center, 12/th/ Floor
New York, NY 10017 Pittsburgh, PA 15259
Attn: Sannford M. Richards
Eurodollar Lending Office: Fax: (412) 209-6118
One Chase Manhattan Plaza, 8/th/ Floor Tele: (412) 234-8285
New York, NY 10081
Attn: Joan Gaston Eurodollar Lending Office:
Fax: (212) 552-5701 3 Mellon Bank Center, 12/th/ Floor
Tele: (212) 552-7237 Pittsburgh, PA 15259
Attn: Sannford M. Richards
Fax: (412) 209-6118
Tele: (412) 234-8285
--------------------------------------------------------------------------------
MERRILL LYNCH BANK USA SUNTRUST BANK
Domestic Lending Office: Domestic Lending Office:
15 W. South Temple, Suite 300 120 E. Baltimore Street, 24/th/ Floor
Salt Lake City, UT 84101 Baltimore, MD 21202
Attn: Butch Alder Attn: Andrew J. Hines
Fax: 801-531-7470 Fax: (410) 986-1672
Tele: 801-526-8324 Tele: (410) 986-1827
Eurodollar Lending Office: Eurodollar Lending Office:
15 W. South Temple, Suite 300 120 E. Baltimore Street, 24/th/ Floor
2
--------------------------------------------------------------------------------
Salt Lake City, UT 84101 Baltimore, MD 21202
Attn: Butch Alder Attn: Andrew J. Hines
Fax: 801-531-7470 Fax: (410) 986-1672
Tele: 801-526-8324 Tele: (410) 986-1827
--------------------------------------------------------------------------------
HSBC BANK USA COMERICA BANK
Domestic Lending Office: Domestic Lending Office:
425 Fifth Avenue 500 Woodward Avenue, 9/th/ Floor
New York, NY 10018 MC 3279
Detroit, MI 48275-3279
Eurodollar Lending Office:
425 Fifth Avenue Eurodollar Lending Office:
New York, NY 10018 500 Woodward Avenue, 9/th/ Floor
MC 3279
Detroit, MI 48275-3279
--------------------------------------------------------------------------------
DEUTSCHE BANK AG, NEW YORK BANCA DI ROMA - NEW YORK BRANCH
BRANCH
Domestic Lending Office:
Domestic Lending Office: 34 East 51st Street
130 Liberty Street New York, NY 10022
MS NYC02-1407
New York, NY 10006 Eurodollar Lending Office:
Attn: Wendy Williams 34 East 51/st/ Street
Fax: (212) 250-7351 New York, NY 10022
Tele: (212) 250-4854
Eurodollar Lending Office:
130 Liberty Street
MS NYC02-1407
New York, NY 10006
Attn: Wendy Williams
Fax: (212) 250-7351
Tele: (212) 250-4854
--------------------------------------------------------------------------------
BANCA NAZIONALE DEL LAVORO BARCLAYS BANK PLC
S.P.A. NEW YORK BRANCH
Domestic Lending Office:
Domestic Lending Office: 222 Broadway
25 West 51st Street New York, NY 10038
New York, NY 10019 Attn: Christine Batiz
Fax: (212) 412-5387
Eurodollar Lending Office: Tele: (212) 412-3701
25 West 51/st/ Street
--------------------------------------------------------------------------------
3
--------------------------------------------------------------------------------
New York, NY 10019 Eurodollar Lending Office:
222 Broadway
New York, NY 10038
Attn: Christine Batiz
Fax: (212) 412-5387
Tele: (212) 412-3701
--------------------------------------------------------------------------------
4
--------------------------------------------------------------------------------
THE BANK OF NEW YORK CREDIT SUISSE FIRST BOSTON
Domestic Lending Office: Domestic Lending Office:
One Wall Street, 22nd Floor Eleven Madison Avenue
New York, NY 10286 New York, NY 10010
Attn: Steven P. Cavaluzzo Attn: William O'Daly
Fax: (212) 635-6434 Fax: (212) 325-8314
Tele: (212) 635-1059 Tele: (212) 325-1986
Eurodollar Lending Office: Eurodollar Lending Office:
One Wall Street, 22nd Floor Eleven Madison Avenue
New York, NY 10286 New York, NY 10010
Attn: Steven P. Cavaluzzo Attn: William O'Daly
Fax: (212) 635-6434 Fax: (212) 325-8314
Tele: (212) 635-1059 Tele: (212) 325-1986
--------------------------------------------------------------------------------
FIRST UNION NATIONAL BANK FUJI BANK
Domestic Lending Office: Domestic Lending Office:
201 South College Street DC-5 To Be Delivered
Charlotte, NC 28288-0169
Attn: John Reid Eurodollar Lending Office:
Fax: (704) 383-7611 To Be Delivered
Tele: 704-383-1385
Eurodollar Lending Office:
201 South College Street DC-5
Charlotte, NC 28288-0169
Attn: John Reid
Fax: (704) 383-7611
Tele: 704-383-1385
--------------------------------------------------------------------------------
SUMITOMO MITSUI BANKING WACHOVIA, N.A.
CORPORATION
Domestic Lending Office:
Domestic Lending Office: 191 Peachtree Street
277 Park Avenue Atlanta, GA 30303
New York, NY 10172 Attn: Meg Beveridge
Fax: (212) 224-5197 Fax: (404) 332-4058
Tele: (404) 332-6576
Eurodollar Lending Office:
277 Park Avenue Eurodollar Lending Office:
New York, NY 10172 191 Peachtree Street
Fax: (212) 224-5197 Atlanta, GA 30303
Attn: Meg Beveridge
--------------------------------------------------------------------------------
5
--------------------------------------------------------------------------------
Fax: (404) 332-4058
Tele: (404) 332-6576
--------------------------------------------------------------------------------
6
--------------------------------------------------------------------------------
BANK OF HAWAII ALLFIRST BANK
Domestic Lending Office: Domestic Lending Office:
130 Merchant Street, 20th Floor 601 13/th/ Street, NW
Honolulu, HI 96813 Suite 1000 North
Attn: Donna Arakawa Washington, DC 20005
Fax: (808) 693-1672 Attn: Shelly Trimble
Tele: (808) 693-1698 Fax: 202-661-7236
Tele: 202-661-7239
Eurodollar Lending Office:
130 Merchant Street, 20/th/ Floor Eurodollar Lending Office:
Honolulu, HI 96813 601 13/th/ Street, NW
Attn: Donna Arakawa Suite 1000 North
Fax: (808) 693-1672 Washington, DC 20005
Tele: (808) 693-1698 Attn: Shelly Trimble
Fax: 202-661-7236
Tele: 202-661-7239
--------------------------------------------------------------------------------
BANK ONE, NA FIRST HAWAIIAN BANK
Domestic Lending Office: Domestic Lending Office:
One Bank One Plaza 999 Bishop Street - 11/th Floor
Suite IL1-0315 Honolulu, Hawaii 96813
Chicago, IL 60670 Attn: Charles L. Jenkins
Attn: Dennis Redpath Fax: 808-525-6372
Fax: 312-732-5939 Tele: 808-525-6289
Tele: 312-732-3044
Eurodollar Lending Office:
Eurodollar Lending Office: 999 Bishop Street - 11/th/ Floor
One Bank One Plaza Honolulu, Hawaii 96813
Suite IL1-0315 Attn: Charles L. Jenkins
Chicago, IL 60670 Fax: 808-525-6372
Attn: Dennis Redpath Tele: 808-525-6289
Fax: 312-732-5939
Tele: 312-732-3044
--------------------------------------------------------------------------------
CREDIT LYONNAIS RIGGS BANK N.A.
NEW YORK BRANCH
Domestic Lending Office:
Domestic Lending Office: 808 17/th/ Street, NY
1301 Avenue of the Americas Washington, DC 20006
New York, New York 10019 Attn: Marian Egge
Attn: Mary Daly Fax: 202-835-5977
Fax: 212-261-7532 Tele: 202-835-4355
Tele: 212-261-7842
--------------------------------------------------------------------------------
7
--------------------------------------------------------------------------------
Eurodollar Lending Office:
Eurodollar Lending Office: 808 17/th/ Street, NY
1301 Avenue of the Americas Washington, DC 20006
New York, New York 10019 Attn: Marian Egge
Attn: Mary Daly Fax: 202-835-5977
Fax: 212-261-7532 Tele: 202-835-4355
Tele: 212-261-7842
--------------------------------------------------------------------------------
SANWA BANK LIMITED WELLS FARGO BANK, NATIONAL ASSOCIATION
Domestic Lending Office: Domestic Lending Office:
55 East 52nd Street 201 Third Street
New York, NY 10055 MAC 0187-081
Attn: John Feeney San Francisco, CA 94103
Fax: (212) 754-1304 Attn: Ginnie Padgett
Tele: (212) 339-6366 Fax: (415) 979-0675
Tele: (415) 477-5374
Eurodollar Lending Office:
55 East 52nd Street Eurodollar Lending Office:
New York, NY 10055 201 Third Street
Attn: John Feeney MAC 0187-081
Fax: (212) 754-1304 San Francisco, CA 94103
Tele: (212) 339-6366 Attn: Ginnie Padgett
Fax: (415) 979-0675
Tele: (415) 477-5374
--------------------------------------------------------------------------------
LEHMAN COMMERCIAL PAPER INC.
Domestic Lending Office:
3 World Financial Center, 8/th/ Floor
New York, New York 10285
Attn: Nancy Wong
Fax: 212-526-6535
Tele: 212-526-7365
Eurodollar Lending Office:
3 World Financial Center, 8/th/ Floor
New York, New York 10285
Attn: Nancy Wong
Fax: 212-526-6535
Tele: 212-526-7365
--------------------------------------------------------------------------------
8
SCHEDULE II
Existing Liens
--------------------------------------------------------------------------------
Description Obligor Lien
--------------------------------------------------------------------------------
Non-Recourse Indebtedness:
Delta Airlines Boeing 767 lease Essex House Condominium $53.8 million
Corp.
--------------------------------------------------------------------------------
Liens encumbering the fee interests Various
(including subordination of the
right to receive ground rent) of
the Company and its Subsidiaries in
land leased to:
(1) Courtyard by Marriott L.P.
(2) Courtyard by Marriott II L.P.
(3) Fairfield Inn by Marriott L.P.
--------------------------------------------------------------------------------
SCHEDULE III
Mandatory Costs
The Mandatory Cost rate is an addition to the interest rate on a sum
to compensate a Bank for the cost resulting from the imposition from time
to time under the Bank of England Act 1998 (the "Act") and/or by the Bank
---
of England and/or the Financial Services Authority (the "FSA") (or other
---
United Kingdom governmental authorities or agencies) of a requirement to
place non-interest bearing cash ratio deposits or special deposits (whether
interest bearing or not) with the Bank of England and/or pay fees to the
FSA calculated by reference to liabilities used to fund the sum.
The Mandatory Cost rate will be the rate determined by the
Administrative Agent (in consultation with the applicable Bank) (and
rounded upward, if necessary, to the next 1/16th of 1%) as the rate
resulting from the application (as appropriate) of the formula:
for Pounds Sterling sums: XL + S(L - D) + F x 0.01
------------------------
100 - (X+S)
for other sums: F x 0.01
--------
300
where on the day of application:
X is the percentage of eligible liabilities (in excess of any stated
minimum) by reference to which the applicable Bank is required under
the Act to maintain, cash ratio deposits with the Bank of England;
L is the percentage rate per annum at which Pounds Sterling deposits for
the relevant period are offered by the applicable Bank to leading
banks in the London interbank market at or about 11:00 am (London
time) on that day;
F is the rate of charge payable by the applicable Bank to the FSA under
the Fees Regulations expressed in pounds per (pound)1 million of the
Bank's fee base;
S is the level of interest bearing special deposits, expressed as a
percentage of eligible liabilities, which the applicable Bank is
required to maintain by the Bank of England (or other United Kingdom
governmental authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England to the
applicable Bank on special deposits.
(X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall be
counted as zero.)
The Mandatory Cost rate attributable to a sum for any period
shall be calculated at or about 11:00 am (London time) on the first day of
such period for the duration of such period.
The determination of the Mandatory Cost rate in relation to any
period shall, in the absence of manifest error, be conclusive and binding
on the parties hereto.
If there is a change in circumstance (including the imposition of
alternative or additional requirements) which in the reasonable opinion of
the applicable Bank or the Administrative Agent renders or will render
either formula (or any element thereof or any defined term used therein)
inappropriate or inapplicable, the Administrative Agent may vary the same
after notice to the Company. Any such variation shall, in the absence of
manifest error, be conclusive and binding on the parties and shall apply
from the date specified in such notice.
For the purposes of this Schedule:
The terms "eligible liabilities" and "special deposits" shall
-------------------- ----------------
bear the meanings given to them under or pursuant to the Act by the Bank of
England (as appropriate), on the day of the application of the formula;
"fee base" has the meaning given to it in the Fees Regulations;
--------
"Fees Regulations" shall mean, as appropriate, either:
----------------
(a) the Banking Supervision (Fees) Regulations 2000; or
(b) such regulations as from time to time may be in force, relating
to the payment of fees for banking supervision.
2
SCHEDULE IV
Swing Loan Banks
--------------------------------------------------------------------------------
Swing Loan Bank Swing Loan Limit
--------------------------------------------------------------------------------
Citibank, N.A. $89,000,000
--------------------------------------------------------------------------------
First Union National Bank $50,000,000
--------------------------------------------------------------------------------
Bank One, NA $35,000,000
--------------------------------------------------------------------------------