EXHIBIT 10
[CONFORMED COPY]
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U.S. $1,500,000,000
CREDIT AGREEMENT
dated as of March 27, 1997
among
MARRIOTT INTERNATIONAL, INC.
as Borrower,
THE BANKS NAMED HEREIN
as 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
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms.......................................................... 1
1.02. Computation of Time Periods.................................................... 27
1.03. Accounting Terms............................................................... 27
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS
2.01. The Revolving Loans............................................................ 27
2.02. The Competitive Bid Loans...................................................... 28
2.03. The Swing Loans................................................................ 29
2.04. The Letters of Credit.......................................................... 29
2.05. Fees........................................................................... 31
2.06. Reductions and Increases of the Commitments.................................... 32
2.07. Repayment...................................................................... 35
2.08. Interest....................................................................... 36
2.09. Interest Rate Determinations................................................... 37
2.10. Prepayments.................................................................... 39
2.11. Payments and Computations...................................................... 39
2.12. Taxes.......................................................................... 41
2.13. Sharing of Payments, Etc....................................................... 44
2.14. Conversion of Revolving Loans.................................................. 45
2.15. Extension of Termination Date.................................................. 45
ARTICLE III
MAKING THE LOANS AND ISSUING THE
LETTERS OF CREDIT
3.01. Making the Revolving Loans..................................................... 49
3.02. Making the Competitive Bid Loans............................................... 52
3.03. Making the Swing Loans, Etc.................................................... 55
3.04. Issuance of Letters of Credit.................................................. 57
3.05. Increased Costs................................................................ 60
3.06. Illegality..................................................................... 62
3.07. Reasonable Efforts to Mitigate................................................. 63
3.08. Right to Replace Affected Person or Lender..................................... 63
3.09. Use of Proceeds................................................................ 64
ARTICLE IV
CONDITIONS OF LENDING
4.01. Conditions Precedent to Initial Borrowing...................................... 64
4.02. Conditions Precedent to Each Revolving Loan Borrowing, Swing Loan
Borrowing and Letter of Credit Issuance........................................ 66
4.03. Conditions Precedent to Each Competitive Bid Loan Borrowing.................... 66
ii
Page
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties of the Borrower................................. 68
ARTICLE VI
COVENANTS OF THE BORROWER
6.01 Affirmative Covenants.......................................................... 70
6.02 Negative Covenants............................................................. 74
ARTICLE VII
EVENTS OF DEFAULT
7.01. Events of Default.............................................................. 77
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.................................................... 81
ARTICLE VIII
THE ADMINISTRATIVE AGENT, THE MANAGING AGENTS,
THE DOCUMENTATION AGENT AND THE LETTER OF CREDIT AGENT
8.01. Authorization and Action....................................................... 84
8.02. Reliance, Etc.................................................................. 85
8.03. Citibank, BNS, Chase and First Chicago and Affiliates.......................... 85
8.04. Lender Credit Decision......................................................... 86
8.05. Indemnification................................................................ 86
8.06. Successor Administrative Agent................................................. 87
ARTICLE IX
MISCELLANEOUS
9.01. Amendments, Etc................................................................ 88
9.02. Notices, Etc................................................................... 88
9.03. No Waiver; Remedies............................................................ 89
9.04. Costs and Expenses............................................................. 89
9.05. Right of Set-off............................................................... 91
9.06. Binding Effect................................................................. 91
9.07. Assignments and Participations................................................. 91
9.08. No Liability of the Issuing Bank or the Letter of Credit Agent................. 97
9.09. Governing Law.................................................................. 97
9.10. Execution in Counterparts...................................................... 97
9.11. Confidentiality................................................................ 98
9.12. Jurisdiction, Etc.............................................................. 98
9.13. WAIVER OF JURY TRIAL........................................................... 99
SCHEDULES
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Schedule I - List of Applicable Lending Offices
Schedule II - Existing Liens
Schedule III - Existing Letters of Credit
EXHIBITS
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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 Borrower's Law Department
Exhibit E - Form of Opinion of Special New York
- Counsel to the Administrative Agent
CREDIT AGREEMENT
Dated as of March 27, 1997
MARRIOTT INTERNATIONAL, INC., a Delaware corporation (the "Borrower"),
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the banks listed on the signature pages hereof under the heading "Banks" (the
"Banks"), CITIBANK, N.A., as administrative agent (in such capacity, the
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"Administrative Agent") for the Lenders hereunder, THE CHASE MANHATTAN BANK and
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THE FIRST NATIONAL BANK OF CHICAGO, as managing agents (in such capacity, the
"Managing Agents"), THE BANK OF NOVA SCOTIA, as documentation agent (in such
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capacity, the "Documentation Agent"), and THE BANK OF NOVA SCOTIA, as letter of
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credit agent (in such capacity, the "Letter of Credit Agent"), agree as follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
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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
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Acceptance.
"Adjusted Total Debt" means, as at any date, the sum for the Borrower
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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
Borrower and its Subsidiaries (other than any such Debt for Borrowed Money
constituting Non-Recourse Indebtedness) outstanding on such date plus
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(b) the excess, if any, of (i) the aggregate of all Guarantees by the
Borrower and its Subsidiaries of Debt for Borrowed Money of others as of
such date over (ii) $400,000,000.
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"Administrative Agent" has the meaning specified in the recital of
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parties to this Agreement.
"Affected Person" has the meaning specified in Sections 2.12(j),
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3.05(d) and 3.06.
Credit Agreement
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"Affiliate" means, as to any Person, any other Person that, directly
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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.
"Applicable Lending Office" means, with respect to each Lender, such
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Lender's Domestic Lending Office in the case of a Base Rate Loan and such
Lender's Eurodollar Lending Office in the case of a Eurodollar 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.
"Applicable Margin" means, as of any date, the applicable margin set
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forth below under the Base Rate column or the Eurodollar Rate column, as
applicable, based upon the Public Debt Rating in effect on such date:
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Public Debt
Rating Eurodollar
S&P/Moody's Base Rate Rate
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Level 1
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A/A2 or higher 0.00% 0.15%
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Level 2
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A-/A3 0.00% 0.15%
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Level 3
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BBB+/Baa1 0.00% 0.215%
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Level 4
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BBB/Baa2 0.00% 0.25%
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Level 5
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BBB-/Baa3 0.00% 0.30%
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Level 6
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Less than Level 5 0.125% 0.475%
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Credit Agreement
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"Applicable Percentage" means, as of any date, the applicable
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percentage set forth below under the Facility Fee column based upon the Public
Debt Rating in effect on such date:
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Public Debt
Rating Facility
S&P/Moody's Fee
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Level 1
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A/A2 or higher 0.075%
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Level 2
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A-/A3 0.100%
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Level 3
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BBB+/Baa1 0.110%
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Level 4
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BBB/Baa2 0.125%
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Level 5
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BBB-/Baa3 0.150%
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Level 6
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Less than Level 5 0.225%
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"Assignment and Acceptance" means an assignment and acceptance entered
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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
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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
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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
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Amount" of such Letter of Credit shall mean, at any time, the maximum amount
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available to be drawn under such Letter of Credit after taking into account all
increases in the availability thereunder.
"BNS" means The Bank of Nova Scotia and its successors.
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"Banks" has the meaning specified in the recital of parties to this
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Agreement.
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"Base Rate" means, for any period, a fluctuating interest rate per
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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
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(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 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
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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
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Section 2.08(a)(i).
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"Base Rate Swing Loan" has the meaning specified in Section 3.03(b).
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"Bondable Lease Obligation" of any Person means the obligation of such
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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
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majeure or loss of a material permit, to make a payment to the landlord (or to
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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.
"Borrower" has the meaning specified in the recital of parties to this
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Agreement.
"Borrowing" means a Revolving Loan Borrowing, a Swing Loan Borrowing
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or a Competitive Bid Loan Borrowing.
"Business Day" means a day of the year on which banks are not required
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or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Loans, on which dealings are carried on in the
London interbank market.
"Change in Control" means:
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(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 Borrower (or other
securities convertible into such Voting Stock) representing not less than
30% of the combined voting power of all Voting Stock of the Borrower; 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 Borrower (together with any new director
whose election by the board of directors or whose nomination for election
by the stockholders of the Borrower 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
Credit Agreement
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retirement of any individual in the ordinary course and not for reasons
related to an actual or proposed change in control of the Borrower) to
constitute a majority of the board of directors of the Borrower; 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, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of, the power to
exercise, directly or indirectly, effective control for any purpose over
Voting Stock of the Borrower (or other securities convertible into such
securities) representing not less than 30% of the combined voting power of
all Voting Stock of the Borrower.
"Chase" means The Chase Manhattan Bank and its successors.
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"Citibank" means Citibank, N.A. and its successors.
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"Closing Date" means the date on which the conditions precedent set
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forth in Section 4.01 are satisfied.
"Code" means the Internal Revenue Code of 1986, as amended from time
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to time, and the regulations promulgated and rulings issued thereunder.
"COLI Debt" means all Indebtedness of the Borrower or any of its
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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 Borrower and such Subsidiaries and at
all times thereafter; and
(b) the documentation with respect to such Indebtedness limits the
recourse of the insurance company issuing the COLI Policies, as lender,
against the Borrower and such Subsidiaries for the payment of such
Indebtedness directly to the ownership interest of the Borrower and its
Subsidiaries in the COLI Policies.
"COLI Policies" means all corporate-owned life insurance policies
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purchased and maintained by the Borrower or
Credit Agreement
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any of its Subsidiaries to insure the lives of certain employees of the Borrower
and its Subsidiaries.
"Commitment" means, as to any Lender, (i) the amount set forth
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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).
"Competitive Bid Loan Borrowing" means a Borrowing from each of the
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Lenders whose offer to make one or more Competitive Bid Loans as part of such
borrowing has been accepted by the Borrower under the auction bidding procedure
described in Section 3.02.
"Competitive Bid Loan Note" means a promissory note of the Borrower
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payable to the order of any Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Lender resulting
from a Competitive Bid Loan made by such Lender.
"Competitive Bid Loan Reduction" has the meaning specified in Section
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2.01.
"Competitive Bid Loan" means a loan by a Lender to the Borrower as
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part of a Competitive Bid Loan Borrowing resulting from the auction bidding
procedure described in Section 3.02.
"Confidential Information" means information that the Borrower or any
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of its Subsidiaries or Affiliates furnishes to the Administrative Agent, any
Managing Agent, the Documentation Agent, the Letter of Credit Agent 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 Borrower, 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 Borrower
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and its Subsidiaries in accordance with GAAP.
Credit Agreement
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"Conversion", "Convert" and "Converted" each refer to a conversion of
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Revolving Loans of one Type into Revolving Loans of the other Type pursuant to
Section 2.14.
"Current Aggregate Commitment" means, at any time, the aggregate
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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:
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(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
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constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Documentation Agent" has the meaning specified in the recital of
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parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender, the
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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 Borrower and the Administrative Agent.
"EBITDA" means, for any period, net income (or net loss) plus the sum
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of (a) Interest Expense, (b) income tax expense, (c) depreciation expense, (d)
amortization expense and
Credit Agreement
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(e) non-recurring non-cash charges (including the cumulative effect of
accounting changes), in each case determined in accordance with GAAP for such
period.
"Eligible Assignee" means:
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(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,
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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
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
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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
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ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414(b) or 414(c) of the Code.
Credit Agreement
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"ERISA Event" means, with respect to any Person, (a) the occurrence of
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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 of its Affiliates 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.
"Eurocurrency Liabilities" has the meaning assigned to that term in
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Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
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office of such Lender specified as its "Eurodollar 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 specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time specify to
the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
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Rate Loan comprising part of the same Revolving Loan Borrowing, an interest rate
per annum equal to the arithmetic average (rounded to the nearest 1/100 of one
percent) of the rates per annum at which deposits in U.S. dollars are offered by
the principal office of each of the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurodollar Rate Loan comprising part of such
Revolving Loan Borrowing to be outstanding during such Interest
Credit Agreement
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Period. The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Loan comprising part of the same Revolving Loan Borrowing shall be determined by
the Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
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provisions of Section 2.09.
"Eurodollar Rate Loan" means a Loan which bears interest as provided
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in Section 2.08(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
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Period for any Eurodollar 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.
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"Excluded Representations" means the representations and warranties
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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 1996 Credit Agreement" means the Credit Agreement dated as
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of July 12, 1996 among the Borrower, the "Lenders", "Managing Agents",
"Documentation Agent" and "Letter of Credit Agent" referred to therein, and
Citibank, as Administrative Agent, as amended to and in effect on the Closing
Date.
"Existing 1997 Credit Agreement" means the Credit Agreement dated as
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of February 21, 1997 among the Borrower, the "Lenders" referred to therein, and
Citibank, as Administrative Agent, as amended to and in effect on the Closing
Date.
Credit Agreement
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"Existing Credit Agreements" means the Existing 1996 Credit Agreement
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and the Existing 1997 Credit Agreement.
"Existing Letters of Credit" means the letters of credit identified on
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Schedule III, each of which is a "Letter of Credit" issued pursuant to the terms
of, and as defined in, the Existing 1996 Credit Agreement.
"FDIC" means the Federal Deposit Insurance Corporation or any
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successor.
"Federal Funds Rate" means, for any period, a fluctuating interest
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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
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Termination Date in effect at such time.
"First Chicago" means The First National Bank of Chicago and its
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successors.
"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.
"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 Borrower with the covenants set forth in
Sections 6.01(j) and (k), "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 Borrower referred to in Section 5.01(e).
Credit Agreement
----------------
13
"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, and in any
event not including the obligations of the Borrower under the Host Marriott
Credit Agreement. The amount of any Guarantee 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 be such Person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Host Marriott Credit Agreement" means the Line of Credit and
------------------------------
Guarantee Reimbursement Agreement dated as of October 8, 1993 between the
Borrower, as lender, and Host Marriott Corporation and certain of its
Subsidiaries, as borrowers, as from time to time amended, modified,
supplemented, extended, or replaced without increase in the commitments of the
Borrower and its Subsidiaries over the original $630,000,000 commitment
thereunder.
"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.
Credit Agreement
----------------
14
"Interest Period" means, for each Revolving Loan comprising part of
---------------
the same Revolving Loan Borrowing, the period commencing on the date of such
Revolving Loan and ending on the last day of the period selected by the Borrower
pursuant to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be one, two,
three or six months (or, if requested by the Borrower and acceptable to each of
the Lenders, nine or twelve months), in each case as the 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; provided, however, that:
-------- -------
(i) the Borrower 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
(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 Eurodollar 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 Borrower 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).
Credit Agreement
----------------
15
"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
-------------------------
$250,000,000 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).
-----------------
"Leverage Ratio" means, as at the last day of any fiscal quarter of
--------------
the Borrower 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.
"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.
Credit Agreement
----------------
16
"Loan Documents" means this Agreement, the Notes and each Letter of
--------------
Credit Agreement.
"Managing Agents" has the meaning specified in the recital of parties
---------------
to this Agreement.
"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
Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, condition (financial or otherwise), operations or properties of the
Borrower 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 Borrower to perform its obligations under the Loan Documents.
"Material Subsidiary" means, at any time, a Subsidiary of the Borrower
-------------------
having (i) at least 10% of the total Consolidated assets of the Borrower and its
Subsidiaries (determined as of the last day of the most recent fiscal quarter of
the Borrower) or (ii) at least 10% of the Consolidated revenues of the Borrower
and its Subsidiaries for the fiscal year of the Borrower 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, 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.
Credit Agreement
----------------
17
"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 Borrower 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 Borrower 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:
(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 Borrower 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 Borrower 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
Credit Agreement
----------------
18
Indebtedness from constituting Non-Recourse Indebtedness; and
(b) if such Indebtedness is incurred after the date hereof by
the Borrower or a Subsidiary of the Borrower 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 Borrower 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 Borrower and its Subsidiaries with respect to such Indebtedness (if
any) consists of property owned by such 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,
Credit Agreement
----------------
19
the Borrower 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 Borrower 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 Borrower), 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 Borrower or one
-------------------
of its Subsidiaries and the owner of a lodging or senior living facility
pursuant to which the Borrower or such Subsidiary operates such lodging or
senior living facility.
"Other Taxes" has the meaning specified in Section 2.12(b).
-----------
Credit Agreement
----------------
20
"Participation Agreement" means a loan participation agreement in
-----------------------
substantially the form of Exhibit C-2 hereto.
"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 Borrower or
such Subsidiary 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);
Credit Agreement
----------------
21
(f) Liens on any property of any Subsidiary of the Borrower to secure
Indebtedness owing by it to the Borrower or another Subsidiary of the
Borrower;
(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 Borrower and its Subsidiaries;
(i) Liens created in connection with the L/C Cash Collateral Account;
(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 Borrower 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 Borrower 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 Borrower 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 contained in the respective security and
margin agreements).
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
----
Credit Agreement
----------------
22
"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 debt issued by the Borrower. 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;
(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 Borrower or any Subsidiary of the Borrower 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 Borrower or such Subsidiary and assumed in connection with
such acquisition;
Credit Agreement
----------------
23
(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
Borrower and its Subsidiaries after December 30, 1994, and (2) such Liens do not
cover current assets of the Borrower or any of its Subsidiaries other than
current assets that relate solely to other property subject to such Lien.
"Quoted Rate Swing Loan" has the meaning specified in Section 3.03(b).
----------------------
"Reference Banks" means Citibank, BNS, Chase and First Chicago.
---------------
"Register" has the meaning specified in Section 9.07(d).
--------
"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 the 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.
Credit Agreement
----------------
24
"Revolving Loan" means a Loan by a Lender to the Borrower as part of a
--------------
Revolving Loan Borrowing and refers to a Base Rate Loan or a Eurodollar 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 the Borrower payable
-------------------
to the order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting
from the Revolving Loans made by such Lender.
"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.
"Self-Insurance Program" means the self-insurance program (including
----------------------
related self-funded insurance programs) established and maintained by the
Borrower in the ordinary course of its business.
"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 Borrower,
(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
Borrower or (y) a grantor trust established for the funding, directly or
indirectly, of the Borrower'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
Credit Agreement
----------------
25
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 Borrower that owns or operates a senior living services facility.
"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, 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 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.
"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 and BNS 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 Borrower, have assumed the obligations of such
Swing Loan Bank
Credit Agreement
----------------
26
with respect to any or all of such Swing Loan Bank's Swing Loans (and its
ability to make Swing Loans) hereunder.
"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 $25,000,000 at any time outstanding and, as to all Swing
Loan Banks collectively, an aggregate amount not to exceed $50,000,000 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.
--------------------
"Taxes" has the meaning specified in Section 2.12(a).
-----
"Termination Date" of any Lender means March 29, 2002 (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
Borrower or any of its Subsidiaries to effect payment to the supplier.
"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.
Credit Agreement
----------------
27
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
------------
ERISA.
"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. Each Lender severally agrees, on
-------------------
the terms and conditions hereinafter set forth, to make Revolving Loans to the
Borrower from time to time on any Business Day during the period from the
Closing Date until the Termination Date of such Lender in an aggregate amount
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"). Each Revolving Loan Borrowing shall be in an aggregate amount not
- ---------
less than $10,000,000 or an integral multiple of $1,000,000 in excess 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 Borrower and the aggregate amount of Competitive Bid Loans
offered to be made by the Lenders and accepted by the Borrower in respect of
Credit Agreement
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28
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 made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
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.
SECTION 2.02. The Competitive Bid Loans.
-------------------------
(a) Each Lender severally agrees that the Borrower may make
Competitive Bid Loan Borrowings from time to time on any Business Day during the
period from the date hereof until the date occurring 30 days 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, the 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) The Borrower shall repay to the Administrative Agent for the
account of each Lender which has made a Competitive Bid Loan, or each other
holder of a Competitive Bid Loan Note, on the maturity date of each Competitive
Bid Loan (such maturity date being that specified by the Borrower 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. The Borrower shall have no right to prepay
any principal amount of any Competitive Bid Loan unless, and then only on the
terms, specified by the Borrower for such Competitive Bid Loan in the related
Notice of Competitive Bid Loan Borrowing delivered
Credit Agreement
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29
pursuant to Section 3.02 and set forth in the Competitive Bid Loan Note
evidencing such Competitive Bid Loan.
(d) The Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Loan 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
Borrower 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 the Borrower resulting from each Competitive
Bid Loan made to the Borrower as part of a Competitive Bid Loan Borrowing shall
be evidenced by a separate Competitive Bid Loan Note of the Borrower payable to
the order of the Lender making such Competitive Bid Loan.
SECTION 2.03. The Swing Loans. The Borrower may request each Swing
---------------
Loan Bank to make, and each Swing Loan Bank may from time to time, in its sole
discretion, make, on the terms and conditions hereinafter set forth, Swing Loans
to the Borrower 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 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, the 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 1996 Credit
Agreement. The Borrower hereby agrees that all Existing Letters of Credit shall
for all purposes be deemed to have been issued under this Agreement and shall be
subject to
Credit Agreement
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30
the provisions hereof (including, without limitation, this Section 2.04 and
Section 3.04).
(b) 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
-----------------
Borrower, or, at the direction of the Borrower, any of its Subsidiaries or any
other Person, 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 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. No Letter of Credit shall have an expiration date (including all
rights of the Borrower 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). Any Standby Letter of Credit may provide that it will be
automatically renewed annually unless notice is given (1) by the Borrower 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 Borrower 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 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. Within the
limits of the Letter of Credit Facility, and subject to the terms hereof, the
Borrower 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.
Credit Agreement
----------------
31
SECTION 2.05. Fees.
----
(a) Facility Fees. The Borrower 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 Closing 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 the last Business Day of each fiscal quarter 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 Borrower 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 Eurodollar Rate borrowings,
payable in arrears quarterly on the last Business Day of each fiscal quarter and
on the Termination Date of such Lender, commencing on the last Business Day of
the fiscal quarter in which the Closing Date shall occur.
(ii) The Borrower 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 the last day of each fiscal
quarter 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 0.075% 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 Borrower 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 Borrower for a Competitive Bid Loan Borrowing pursuant to
Section 3.02.
Credit Agreement
----------------
32
(d) Other Fees. The Borrower 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 Borrower 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 Borrower shall have the right, upon at least five 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 $10,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(b) Optional Increases of the Commitments. (i) Not more than once in
-------------------------------------
any calendar year, the Borrower may propose to increase the Current Aggregate
Commitment by an aggregate amount of not less than $50,000,000 or an integral
multiple of $1,000,000 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 Borrower shall notify the Administrative Agent of its
request to 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 Borrower 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
Credit Agreement
----------------
33
Borrower 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 Borrower'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 Borrower)
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 Borrower 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 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). 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 thereof to the Borrower) 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
Credit Agreement
----------------
34
$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 Lender
that offers a Proposed Increased Commitment 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 Borrower shall borrow Revolving Loans from all or certain
of the Lenders and/or (subject to compliance by the Borrower 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 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:
Credit Agreement
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35
(x) first to New Lenders (to the extent of their respective
-----
Proposed New Commitments) in such a manner as the Borrower 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 to each New Lender and each other Lender whose Commitment is being
increased, 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. The Borrower shall repay the principal amount
---------------
of each Revolving Loan made by each Lender, and each Revolving Loan made by such
Lender shall mature, on the Termination Date of such Lender.
(b) Competitive Bid Loans. The Borrower shall repay the principal
---------------------
amount of each Competitive Bid Loan made by each Lender as provided in Section
2.02(c).
(c) Swing Loans. The 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 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 Borrower 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 Borrower) the outstanding principal amount of each
Letter of Credit Loan made by each of them on demand
Credit Agreement
----------------
36
(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 Borrower
may prepay any Letter of Credit Loan at any time. The Issuing Bank shall give
notice to the Borrower 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 Section 3.04(b), and each Lender shall give notice to the Borrower 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. The Borrower shall prepay Loans on such
-------------------
dates and in such amounts as shall be necessary such that at no time shall (a)
the sum of (i) the aggregate amount of all Revolving Loans, Swing Loans,
Competitive Bid Loans and Letter of Credit Loans plus (ii) the Available Amount
----
of all Letters of Credit exceed (b) the then Current Aggregate Commitment.
SECTION 2.08. Interest.
--------
(a) Ordinary Interest. The Borrower shall pay interest on the unpaid
-----------------
principal amount of each Loan made by each Lender from the date of such
Revolving Loan or, as specified in clause (i) of this Section 2.08(a), such
Swing Loan or Letter of Credit Loan, until such principal amount shall be paid
in full, at the following rates per annum:
(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 plus the Applicable Margin, payable on the last day of each (A)
----
calendar quarter such Revolving Loan or Swing Loan is outstanding or (B)
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) Eurodollar Rate Loans. If such Revolving Loan is a Eurodollar
---------------------
Rate Loan, a rate per annum equal at all times during each Interest Period
for such Revolving Loan to the sum of the Eurodollar Rate for such Interest
Period plus the Applicable Margin, payable on the last day of such Interest
----
Period and, if such Interest Period has a duration of more
Credit Agreement
----------------
37
than three months, at three-month intervals following the first day of such
Interest Period.
(b) Default Interest. Notwithstanding the foregoing, the Borrower
----------------
shall pay interest on (x) the unpaid principal amount of each Loan owing to each
Lender 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 Eurodollar 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 Borrower
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, furnished by each Reference Bank for the purpose of determining the
applicable interest rate under Section 2.08(a)(ii).
(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 the second sentence in the
definition of "Eurodollar Rate", the Administrative Agent receives notice from
two or more of the Reference Banks that U.S. dollar deposits are not being
offered by such Reference Bank or Banks to prime banks in the London interbank
market for the applicable Interest Period or in the applicable amounts, the
Administrative Agent shall so notify the Borrower of such circumstances,
whereupon the right of the Borrower to select Eurodollar Rate Loans for any
requested Revolving Loan Borrowing or any subsequent Revolving Loan
Credit Agreement
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38
Borrowing shall be suspended until the first date on which the circumstances
causing such suspension cease to exist. If the Borrower 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
Eurodollar Rate was to be determined shall be converted to a Notice of Revolving
Loan Borrowing for a Base Rate Loan, such Notice of Revolving Loan Borrowing
shall be deemed to be canceled and of no force or effect, and Borrower shall not
be liable to the Administrative Agent or any Lender with respect thereto except
as set forth in Section 9.04(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 Borrower and the Lenders
promptly of the end of such suspension, and thereafter the Borrower shall be
entitled, on the terms and subject to the conditions set forth herein, to borrow
Eurodollar Rate Loans.
(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 Eurodollar 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 Eurodollar Rate Loan having an
initial Interest Period ending after such Lender's Termination Date, (ii) have
any outstanding Eurodollar 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 Eurodollar
Rate Loan if such Eurodollar Rate Loan would have an initial Interest Period
ending after such Lender's Termination Date. If any Relevant Lender has
outstanding a Eurodollar 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 Eurodollar Rate Loan pursuant to clause
(iii) above, such Lender's ratable share of such Eurodollar Rate Loan (in the
case of said clause (ii)) shall be repaid by the 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 Borrower on the
day on which the Loans of Lenders unaffected by said clause (iii) are so
Converted. Subject to the terms and conditions hereof, the Borrower may fund
the repayment of the Relevant Lenders' ratable shares of such Eurodollar Rate
Loans and Base Rate Loans by borrowing from Lenders hereunder that are not
Relevant Lenders.
Credit Agreement
----------------
39
SECTION 2.10. Prepayments.
-----------
(a) The Borrower 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) The Borrower may, upon at least (i) 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) one Business Day's notice with
respect to 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, the Borrower shall, prepay the outstanding principal
amounts of the Loans 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 an integral multiple of $1,000,000 in excess
thereof and (y) if any prepayment of any Eurodollar Rate Loans shall be made on
a date which is not the last day of an Interest Period for such Loans, the
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 the Borrower therefor
(with a copy of such demand to the Administrative Agent) within 20 Business Days
after such prepayment.
SECTION 2.11. Payments and Computations.
-------------------------
(a) The Borrower shall make each payment hereunder and under the
Notes not later than 11:00 A.M. (New York City time) on the day when due in U.S.
dollars to the Administrative Agent at its address referred to in Section 9.02
in same day funds. The Administrative Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest or
facility 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. 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
Credit Agreement
----------------
40
thereby to the Lender assignee or New Lender thereunder (as 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 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 Eurodollar Rate or the Federal Funds Rate shall be made by
the Administrative Agent on the basis of a year of 360 days, 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 facility 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 Eurodollar 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
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the 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 the 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.
Credit Agreement
----------------
41
SECTION 2.12. Taxes.
-----
(a) Any and all payments by the 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, each Managing Agent, the
Documentation Agent, the Letter of Credit Agent and the Administrative 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 the 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) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies 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) The 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) the Borrower shall
-------- -------
not 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
Credit Agreement
----------------
42
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 the Borrower in contesting any Taxes or Other Taxes which the Borrower
reasonably deems to be not correctly or legally asserted or otherwise not due
and owing and (iii) the Borrower shall not 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 the Borrower for indemnification therefor. This indemnification shall be
made within 30 days from the 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 the
Borrower, the 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) 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 the 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 Borrower (but only so long thereafter as such Lender remains
lawfully able to do so), shall provide the Borrower with Internal Revenue
Service Form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is entitled to
benefits under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest or certifying 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,
withholding tax at such rate 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 lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes
Credit Agreement
----------------
43
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 1001 or 4224, that
the Lender considers to be confidential, the Lender shall give notice thereof to
the Borrower 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 has failed to
provide the Borrower with the appropriate form described in Section 2.12(e) or
notice that it cannot provide such form (other than if such failure is due to a
----- ----
change in law occurring subsequent to the date on which a form originally was
required to be provided, or if such form 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 imposed by the
United States; provided, however, that should a Lender become subject to Taxes
-------- -------
because of its failure to deliver a form required hereunder, the 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 as may be required under
Section 2.12(e) thereafter ceases to qualify for complete exemption from United
States withholding tax, such Lender may assign its interest under this
Credit Agreement
----------------
44
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
United States 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
Borrower hereunder, the agreements and obligations of the Borrower 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 the Borrower is required to pay any Lender any Taxes under
Section 2.12(c), such Lender shall be an "Affected Person", and the Borrower
---------------
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. The 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 the
Borrower in the amount of such participation.
Credit Agreement
----------------
45
SECTION 2.14. Conversion of Revolving Loans.
-----------------------------
(a) Optional. The 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 Business Day prior to the date of the proposed Conversion into
Eurodollar 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 comprising the same Revolving Loan Borrowing into Revolving Loans of
the other Type; provided, however, that any Conversion of Eurodollar Rate Loans
-------- -------
into Base Rate Loans shall be made only on the last day of an Interest Period
for such Eurodollar Rate Loans and any Conversion of Base Rate Loans into
Eurodollar 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 Eurodollar
Rate Loans, the duration of the initial Interest Period for such Revolving
Loans. Each notice of Conversion shall be irrevocable and binding on the
Borrower.
(b) Mandatory. If the Borrower shall fail to select the duration of
---------
any Interest Period for any Eurodollar 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 Borrower and the Lenders,
whereupon each such Eurodollar Rate Loan will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Loan.
(c) Conversions Generally. The 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
Borrower's representations and warranties pursuant to Section 4.02 or Section
4.03.
SECTION 2.15. Extension of Termination Date.
-----------------------------
(a) The Borrower 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 Closing Date, request that each Lender extend such Lender's Termination Date
to the date (the "New Termination Date") that is one year after the
--------------------
Credit Agreement
----------------
46
then Final Termination Date. Each Lender, acting in its sole discretion, shall,
by 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").
------------------------------
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
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 Borrower 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:
Credit Agreement
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47
(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 Borrower 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 Borrower 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 Borrower 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
Consent Date, and the Borrower will not have the right to take any of the
actions specified in Section 2.15(b)(ii)(2).
(c) Replacement by the Borrower 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;
Credit Agreement
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48
(3) the Borrower 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
Borrower hereunder (including, without limitation, payments due such
Assignors, if any, under Sections 2.12, 3.05 and 9.04(c)); and
(4) the Borrower 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.
"Assignment Date" means the Anniversary Date or such earlier date as
---------------
shall be acceptable to the Borrower, the relevant Assignors, the relevant
Assignees and the Administrative Agent.
"Assignors" means, at any time, the Lenders to be replaced by the
---------
Borrower pursuant to Section 2.15(b)(ii)(2)(Y).
Credit Agreement
----------------
49
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 Borrower 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.
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) on the third Business Day prior
to the date of a Eurodollar Rate Loan Borrowing, and (y) 11:00 A.M. (New York
City time) on the day of a Base Rate Loan Borrowing, by the Borrower to the
Credit Agreement
----------------
50
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)
Type of Revolving Loan comprising such Revolving Loan Borrowing, (iii) aggregate
amount of such Revolving Loan Borrowing, and (iv) in the case of a Revolving
Loan Borrowing comprised of Eurodollar Rate Loans, initial Interest Period for
each such Revolving Loan. Each Lender shall (A) before 11:00 A.M. (New York
City time) on the date of such Borrowing (in the case of a Eurodollar 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 its
address referred to in Section 9.02, in same day funds, such Lender's ratable
portion of such Revolving Loan Borrowing; provided that, with respect to
--------
Borrowings of Eurodollar Rate Loans, no Lender having a Termination Date prior
to the last day of the initial Interest Period for such Eurodollar 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
Borrower at the Administrative Agent's aforesaid address; 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 the 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 Borrower may not select Eurodollar Rate Loans for any Revolving Loan
Borrowing if the aggregate amount of such Revolving Loan Borrowing is less than
$10,000,000.
(c) Subject to Sections 2.09(c) and 3.06, each Notice of Revolving
Loan Borrowing shall be irrevocable and binding on the Borrower. In the case of
any Revolving Loan Borrowing which the related Notice of Revolving Loan
Borrowing specifies is to be comprised of Eurodollar Rate Loans, the Borrower
shall indemnify
Credit Agreement
----------------
51
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 date of any Revolving Loan Borrowing 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 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 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 the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the 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 the 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 the
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
Credit Agreement
----------------
52
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 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 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 earlier than the date occurring 7 days after the
date of such Competitive Bid Loan Borrowing or 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, and any other terms to be applicable to such Competitive
Bid Loan Borrowing, not later than (i) 10:00 A.M. (New York City time) at least
one Business Day prior to the date of the proposed Competitive Bid Loan
Borrowing, if the Borrower 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 City time) at least four Business
Days prior to the date of the proposed Competitive Bid Loan Borrowing, if the
Borrower 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 Borrower by sending such Lender a copy of the related Notice of Competitive
Bid Loan Borrowing.
(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 the 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 Borrower),
before 10:00 A.M. (New York City time) (i) on the date of such proposed
Competitive Bid Loan Borrowing,
Credit Agreement
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53
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 Borrower of such offer before 9:00 A.M. (New York
City 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 City 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 Borrower shall, in turn, (i) before 11:30 A.M. (New York City
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 City 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 than the maximum amount, notified to the Borrower 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
Credit Agreement
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54
offers made by Lenders pursuant to paragraph (b) above by giving the
Administrative Agent notice to that effect.
(d) If the Borrower 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 Borrower 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 Borrower,
(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 City 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 its address referred to in Section 9.02 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 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
Borrower shall be in compliance with the
Credit Agreement
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55
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 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 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
the requested (i) Swing Loan Bank, (ii) date of such Borrowing (which shall be a
Business Day), (iii) amount of such Borrowing, (iv) maturity of such Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing) and (v) account of the 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 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 Borrower; 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 Borrower 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
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56
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 Borrower cancels such Swing Loan Borrowing pursuant to
paragraph (c)(A) above, such Swing Loan Borrowing shall not be made. If the
Borrower 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 Borrower at the account
specified in the relevant Notice of Swing Loan Borrowing.
(e) If the Borrower accepts an offer by a Swing Loan Bank for a
Quoted Rate Swing Loan as provided above, such Swing Loan Bank will provide the
Borrower 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 Borrower 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 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. 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 Borrower (or
any other account party), the existence of any
Credit Agreement
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57
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 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 Borrower 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
Credit Agreement
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58
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 Borrower for use in connection with such requested
Letter of Credit. 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
Borrower at its office referred to in Section 9.02 or as otherwise agreed with
the Borrower 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.
(ii) 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 Borrower 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 Borrower 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. 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. 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, 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 Borrower hereby agrees to each
such sale and assignment. Each Lender's obligations to make such payments to the
Administrative Agent for
Credit Agreement
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59
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 Borrower (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. 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 Day next succeeding such demand if notice of such demand is given
after such time. 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. 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. 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 Borrower 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
Credit Agreement
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60
Borrower is without prejudice to, and does not constitute a waiver of, any
rights the Borrower 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 Borrower
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 Borrower 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;
(iii) the existence of any claim, set-off, defense or other right that
the Borrower 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 Borrower.
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 Eurodollar Rate Reserve Percentage, in each case as of the date
of determination thereof)
Credit Agreement
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61
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 Eurodollar Rate Loans, then the Borrower 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
120-day period prior to the date of such demand. A certificate as to the amount
of such increased cost, submitted to the Borrower 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 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 Borrower 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 120-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 Borrower 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 Borrower 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
Credit Agreement
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62
that includes deposits by reference to which the interest rate on Eurodollar
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
Eurodollar Rate Loans) an additional amount (determined by such Lender and
notified to the Borrower through the Administrative Agent) equal to the product
of the following for each Eurodollar Rate Loan for each day during such Interest
Period:
(i) the principal amount of such Eurodollar 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 Eurodollar
Rate Loan for such Interest Period as provided in this Agreement (less the
Applicable Margin) and the denominator of which is one minus the Eurodollar
-----
Rate Reserve Percentage in effect on such day minus (y) such numerator; and
-----
(iii) 1/360.
(d) If the Borrower is required to pay any Lender any amounts under
this Section 3.05, the applicable Lender shall be an "Affected Person", and the
---------------
Borrower 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 Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Loans or to
fund or maintain Eurodollar Rate Loans hereunder, then, subject to the
provisions of Section 3.08, (i) the obligation of such Lender to make Eurodollar
Rate Loans hereunder shall be suspended until the first date on which the
circumstances causing such suspension cease to exist, (ii) any Eurodollar 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 Borrower
---------------
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 Borrower,
the Administrative Agent and the Lenders promptly of the end of such suspension,
and thereafter
Credit Agreement
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63
the Borrower shall be entitled to borrow Eurodollar 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 Borrower 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 Eurodollar
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 Borrower
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 Borrower. In the event the Borrower 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, the
Borrower 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 Borrower 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 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, and (ii) the Borrower
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 Borrower hereunder to and including the date of
termination,
Credit Agreement
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64
including without limitation payments due such Affected Person under Section
2.12 and costs incurred under Section 3.05.
(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 Borrower 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) 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 the Borrower agrees that it shall use such proceeds) for general
corporate purposes (including, without limitation, commercial paper backup and
to finance acquisitions) of the Borrower and its Subsidiaries; provided that
--------
neither any Lender, any Managing Agent, the Documentation Agent, the Letter of
Credit Agent nor the Administrative 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
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65
occasion of the initial Borrowing or, if earlier, of the Issuing Bank to issue
the initial Letter of Credit (other than an Existing Letter of Credit), is
subject to the following conditions precedent being satisfied on or before April
15, 1997:
(a) The Administrative Agent shall have received on or before the day
of the initial Borrowing or such initial issuance the following 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 to the order of the
Lenders, respectively.
(ii) Certified copies of (x) the charter and by-laws of the
Borrower, (y) the resolutions of the Board of Directors of the
Borrower 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 Borrower certifying the names and true signatures of the officers
of the Borrower authorized to sign this Agreement and the Notes and
the other documents to be delivered hereunder.
(iv) A favorable opinion of the Borrower'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,
special New York counsel to the Administrative Agent, substantially in
the form of Exhibit E.
(b) The Administrative Agent shall have received evidence that, prior
to or simultaneously with such initial Borrowing or issuance, the Borrower
shall have (i) repaid in full the outstanding principal amount of each of
the outstanding "Loans" as defined in the Existing Credit Agreements
together with all accrued and unpaid interest thereon, all fees payable in
respect thereof and all other
Credit Agreement
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66
amounts payable thereunder, and (ii) canceled each of the "Commitments" as
defined therein.
(c) The Borrower shall have paid all accrued fees and expenses of the
Administrative Agent and the fees of the Managing Agents, the Documentation
Agent, the Letter of Credit Agent and the Lenders (including the fees and
expenses of counsel to the Administrative Agent to the extent then
payable).
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 Borrower to request a Swing Loan Borrowing or the issuance of a Letter of
Credit, shall be subject to the further conditions precedent that on the date of
such Borrowing or issuance of a Letter of Credit the following statements shall
be true (and the acceptance by the Borrower of the proceeds of such Borrowing or
of such Letter of Credit shall constitute a representation and warranty by the
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.
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:
Credit Agreement
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(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 Borrower of the
proceeds of such Competitive Bid Loan Borrowing shall constitute a
representation and warranty by the Borrower 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 Borrower that has been
provided to the Administrative Agent and each Lender by the Borrower
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.
Credit Agreement
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of the Borrower. The
----------------------------------------------
Borrower represents and warrants as follows:
(a) The Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, (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 Borrower of the
Loan Documents, and the consummation of the transactions contemplated
hereby, are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene the
Borrower's certificate of incorporation or by-laws, (ii) violate any law,
rule or regulation (including, without limitation, the Securities Act of
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 Borrower 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 Borrower or its Subsidiaries. The Borrower 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.
Credit Agreement
----------------
69
(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 Borrower 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 Borrower
enforceable against the Borrower in accordance with its terms.
(e) The Borrower has heretofore furnished to each of the Lenders
consolidated balance sheets of the Borrower and its Subsidiaries as at
January 3, 1997 and the related consolidated statements of income, retained
earnings and cash flows of the Borrower and its Subsidiaries for the fiscal
year ended on said date, with the opinion thereon (in the case of said
consolidated balance sheet and statements) of Arthur Andersen LLP. All
such financial statements are complete and correct and fairly present the
consolidated financial condition of the Borrower and its Subsidiaries as at
said date and the consolidated results of their operations for the fiscal
year ended on said date, all in accordance with GAAP. Since January 3,
1997, there has been no Material Adverse Change.
(f) No information, exhibit or report furnished by or on behalf of
the Borrower 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.
(g) There is no pending or threatened action or proceeding affecting
the Borrower 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
Credit Agreement
----------------
70
or could reasonably be expected to result in a liability to the Borrower or
its ERISA Affiliates in excess of $5,000,000.
(i) Neither the Borrower 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 Borrower nor any of its ERISA
Affiliates, to the best of the Borrower'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 Borrower 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 Borrower 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 Borrower or the Borrower and its
Subsidiaries taken as a whole.
ARTICLE VI
COVENANTS OF THE BORROWER
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 Borrower
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
Credit Agreement
----------------
71
Laws, except, in each case, any non-compliance which would not have a
Material Adverse Effect.
(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 Borrower 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
Borrower 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 Borrower 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 Borrower 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 Borrower and its Material Subsidiaries may
-------- -------
consummate any transaction permitted under Section 6.02(b) and (ii) neither
the Borrower nor such Subsidiary shall be required to preserve any right or
franchise (other than the corporate existence of the Borrower) when, in the
good faith business judgment of the Borrower, such preservation or
maintenance is neither necessary nor appropriate for the prudent management
of the business of the Borrower.
(f) Visitation Rights. At any reasonable time during normal business
-----------------
hours and upon reasonable prior notice and
Credit Agreement
----------------
72
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 Borrower and any of its Subsidiaries, and to discuss the
affairs, finances and accounts of the Borrower 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 Borrower and each such Subsidiary in accordance
with GAAP.
(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
Borrower, quarterly condensed and consolidated balance sheets and
consolidated statement of cash flows of the Borrower as of the end of
such quarter and statements of income of the Borrower 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
Borrower (or another appropriate officer of the Borrower 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)
and (k), provided that in the event of any change in GAAP used in
--------
preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with Section
6.01(j) or (k), a statement of reconciliation conforming any
information in such certificates with GAAP;
Credit Agreement
----------------
73
(ii) as soon as available and in any event within 105 days after
the end of each fiscal year of the Borrower, 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 Borrower, containing audited
financial statements for such year certified by (a) Arthur Andersen
LLP, (b) any other "Big Six" 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 Borrower 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 Borrower setting forth details
of such Event of Default or Default and the action which the Borrower
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 Borrower may from
time to time make available to any of its public security holders or
bond holders;
(v) promptly and in any event within 15 days after the Borrower
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 Borrower 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 Borrower describing such ERISA
Event and the action, if any, which the Borrower or such ERISA
Affiliate proposes to take with respect thereto;
(vi) promptly and in any event within 10 Business Days after
receipt thereof by the Borrower 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;
(vii) with respect to liabilities or potential liabilities of the
Borrower or any of its ERISA
Credit Agreement
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74
Affiliates of $10,000,000 or more, promptly and in any event within 20
Business Days after receipt thereof by the Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a copy of each
notice received by the Borrower 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 Borrower or any ERISA
Affiliate in connection with any event described in clause (1) or (2)
above; and
(viii) promptly after request therefor, such other business and
financial information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries
that any Lender through the Administrative Agent may from time to time
reasonably request.
(j) Minimum Net Worth. Maintain, as at the last day of each fiscal
-----------------
quarter of the Borrower ending after the date hereof, a net worth of not
less than:
(i) $500,000,000 minus
-----
(ii) the lesser of (x) the aggregate consideration paid by the
Borrower in respect of the purchase by the Borrower of its common
stock during the period from December 30, 1995 through and including
the date of determination and (y) $200,000,000 plus
----
(iii) 25% of the cumulative Consolidated net income of the
Borrower (if positive) for the fiscal years (if any) ended during the
period from December 30, 1995 through and including the date of
determination.
(k) Leverage Ratio. Maintain, as at the last day of each fiscal
--------------
quarter of the Borrower ending after the date hereof, 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 Borrower will
not, unless the Required Lenders shall otherwise consent in writing:
Credit Agreement
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75
(a) Liens, Etc. 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 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 Closing Date and described on
Schedule II ("Existing Liens"), and any renewal, extension or
--------------
replacement (or successive renewals, extensions or replacements)
thereof which does not encumber any property of the Borrower or its
Subsidiaries other than (1) the property encumbered by the Lien being
renewed, extended or replaced, (2) property acquired by the Borrower
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 Borrower principally engaged in the business of finance,
banking, credit, leasing, insurance or other similar operations;
(v) Liens on properties of Subsidiaries of the Borrower, 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. Not, and 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
Credit Agreement
----------------
76
transactions) all or substantially all of the property (whether now
owned or hereafter acquired) of the Borrower 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 or contract services group of the
Borrower and its Subsidiaries, taken as a whole, to, or
(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 Borrower,
(1) the Borrower 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 Borrower'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. Enter into, or permit any of its
----------------------------
Subsidiaries to enter into, any transaction with an Affiliate of the
Borrower (other than the Borrower's Subsidiaries) that would be material in
relation to the Borrower and its Subsidiaries, taken as a whole, even if
otherwise permitted under this Agreement, except on terms that are fair and
reasonable to the Borrower and its Subsidiaries and on terms no less
favorable to the Borrower or such Subsidiary (considered as a whole in
conjunction with all other existing arrangements and relationships with
such Affiliate) than the Borrower or such Subsidiary would obtain in a
comparable arm's-length transaction with a Person not an Affiliate.
(d) Dividends, Etc. 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 Borrower, or
purchase,
Credit Agreement
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77
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 Borrower 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. Engage in, or permit any of its
----------------------------
Subsidiaries to engage in, any business that is material to the Borrower
and its Subsidiaries, taken as a whole, that is not carried on by the
Borrower or its Subsidiaries as of the Closing Date (or directly related to
a business carried on as of such date) and which would have a Material
Adverse Effect.
(f) Accounting Changes. 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. Permit more than 25%, after applying the proceeds
------------
of each Loan, of the value of the assets of the Borrower and its
Subsidiaries (as determined in good faith by the Borrower) that are subject
to Section 6.02(a) or Section 6.02(b) to consist of or be represented by
margin stock within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System, as such Regulation U is from time
to time amended.
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) The Borrower shall fail to pay any principal of any Loan when
the same becomes due and payable; or (ii) the 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 the Borrower herein or by
the Borrower (or any of its officers)
Credit Agreement
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78
under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 6.01(j) or (k) 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
agreement shall remain unremedied for 30 days after written notice thereof
shall have been given to the Borrower by the Administrative Agent or the
Required Lenders; or
(d) The Borrower 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 Borrower 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 other event
shall occur or condition shall exist under any agreement or instrument
relating to any such Indebtedness and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of 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
-------- -------
or an event permitting acceleration of any Indebtedness which is included
under this clause (d) solely because of a Guarantee by the Borrower or one
of its Material Subsidiaries, an Event of Default will not exist under this
clause (d) so long as the Borrower 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
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79
(e) The Borrower 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 Borrower 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 Borrower 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 Borrower 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 stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(g) A Change of Control shall occur; or
(h) 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 Borrower or any ERISA Affiliate related to
such ERISA Event) exceeds $20,000,000; or
(i) The Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it
Credit Agreement
----------------
80
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 Borrower 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
(j) The Borrower 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 Borrower 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
Borrower, 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 Borrower, 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 the Borrower; provided, however, that in
-------- -------
the event of an actual or deemed entry of an order for relief with respect to
the Borrower 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 the Borrower.
Credit Agreement
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81
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 Borrower to, and forthwith upon such
demand the Borrower 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 the Administrative Agent, the Letter of Credit Agent, the
Managing Agents, the Documentation 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 Borrower 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 Borrower 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 Borrower 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,
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82
(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 Borrower in substitution
for or in addition to any or all of the then existing L/C Cash Collateral
Account Collateral,
(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 Borrower, 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 Borrower 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 Borrower 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 Borrower or at its order (a) accrued
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83
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 Borrower
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 Borrower 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 Borrower 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 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. The Borrower agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice to the
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
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84
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 Borrower 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 Borrower 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.
ARTICLE VIII
THE ADMINISTRATIVE AGENT, THE MANAGING AGENTS,
THE DOCUMENTATION AGENT AND THE LETTER OF CREDIT AGENT
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 the Borrower pursuant to the
terms of this Agreement.
Credit Agreement
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85
SECTION 8.02. Reliance, Etc.
--------------
(a) None of the Administrative Agent, any Managing Agent, the
Documentation Agent, the Letter of Credit Agent 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 the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (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 the Borrower or to inspect the property (including
the books and records) of the 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, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
(b) The Managing Agents, as such, and the Documentation Agent, as
such, shall have no duties or obligations whatsoever with respect to this
Agreement, the Notes or any other document or any matter related thereto.
SECTION 8.03. Citibank, BNS, Chase and First Chicago and Affiliates.
-----------------------------------------------------
With respect to its respective Commitment, the Loans made by it and the Notes
issued to it, each of Citibank, BNS, Chase and First Chicago shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Administrative Agent, a Managing Agent or the
Documentation Agent, as the case may be;
Credit Agreement
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86
and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include each of Citibank, BNS, Chase and First Chicago in its individual
capacity. Citibank, BNS, Chase and First Chicago and their respective affiliates
may accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if each of Citibank, BNS, Chase and
First Chicago were not the Administrative Agent, a Managing Agent or the
Documentation Agent, as the case may be, 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 the Administrative Agent, any
Managing Agent, the Documentation Agent, the Letter of Credit 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 the
Administrative Agent, any Managing Agent, the Documentation Agent, the Letter of
Credit 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 the
---------------
Administrative Agent, the Managing Agents, the Documentation Agent and the
Letter of Credit Agent (in each case to the extent not reimbursed by the
Borrower), 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 the
Administrative Agent, any Managing Agent, the Documentation Agent or the Letter
of Credit Agent in any way relating to or arising out of this Agreement or any
action taken or omitted by the Administrative Agent, any Managing Agent, the
Documentation Agent or the Letter of Credit Agent under this Agreement in their
respective capacities 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 the Administrative Agent's, any Managing Agent's, the Documentation Agent's
or the Letter of Credit Agent's gross negligence or willful misconduct. Without
limitation of the
Credit Agreement
----------------
87
foregoing, each Lender agrees to reimburse the Administrative Agent, any
Managing Agent, the Documentation Agent and the Letter of Credit 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 the Administrative Agent, each Managing
Agent, the Documentation Agent or the Letter of Credit Agent in connection with
the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Administrative Agent, any Managing Agent, the
Documentation Agent or the Letter of Credit Agent is not reimbursed for such
expenses by the Borrower as required under Section 9.04(a).
SECTION 8.06. Successor Administrative Agent. The Administrative
------------------------------
Agent may resign at any time by giving written notice thereof to the Lenders and
the Borrower 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 Borrower, 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.
Credit Agreement
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88
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 the 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 or (f) amend this Section 9.01; and
provided further that (1) no amendment, waiver or consent shall, unless in
- -------- -------
writing and signed by the Administrative Agent, the Letter of Credit Agent, the
Documentation Agent, a Managing Agent or a Swing Loan Bank, as the case may be,
in addition to the Lenders required above to take such action, affect the rights
or duties of the Administrative Agent, the Letter of Credit Agent, the
Documentation Agent, such Managing Agent or such Swing Loan Bank, as the case
may be, under this Agreement or any Note and (2) no amendment, waiver or consent
shall, unless in writing and signed by a Lender that has made a Competitive Bid
Loan, in addition to the Lenders required above to take such action, affect the
rights or duties of such Lender in respect of such Competitive Bid Loan.
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 the Borrower, to its address 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 specified
opposite its name on Schedule I hereto; if to any other Lender, to its
Credit Agreement
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89
Domestic Lending Office specified in the Acceptance pursuant to which it became
a Lender; if to any Managing Agent, the Documentation Agent or the Letter of
Credit Agent, to its address specified on the signature pages hereto; and if to
the Administrative Agent, at its address at 1 Court Square, Long Island City,
New York 11120, Attention: Lei Tang (or her successors), telephone number (718)
248-4490, telecopier number (718) 248-4844; or to the Borrower 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 Borrower
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 Borrower 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 Borrower further
Credit Agreement
----------------
90
agrees to pay on demand all 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 Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Letter of Credit Agent, each Managing Agent, the
Documentation 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 Borrower, 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 Eurodollar Rate Loan is
made other than on the last day of the Interest Period for such 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 Borrower gives notice of a Loan conversion pursuant to Section 2.09(c), then
the Borrower 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
Credit Agreement
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91
funds acquired by any Lender to fund or maintain such Revolving 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 deposits at any account with respect to which such
account states that the Borrower 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 Borrower against any and all of the obligations of the Borrower
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 Borrower 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 Borrower, each Managing Agent, the
Documentation Agent, the Letter of Credit Agent and the Administrative Agent and
when the Administrative Agent shall have been notified by each Bank that such
Bank has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent, each Managing Agent, the
Documentation Agent, the Letter of Credit Agent and each Lender and their
respective successors and assigns, except that the Borrower shall not 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:
-------- -------
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92
(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 Borrower and the Administrative 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 Borrower shall otherwise agree,
(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 Borrower 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
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93
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance.
(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 the
Borrower or the performance or observance by the 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 the Administrative Agent, any Managing Agent, the Documentation
Agent, the Letter of Credit 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
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94
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 the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document 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 the Administrative
Agent, any Managing Agent, the Documentation Agent, the Letter of Credit 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 the 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 Borrower or any
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95
Lender at any reasonable time and from time to time upon reasonable prior
notice. The Administrative Agent shall provide the Borrower 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 Borrower.
Within five Business Days after its receipt of such notice, the 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
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-l hereto. Such surrendered Revolving Note or Notes shall be marked
"canceled" and shall be returned promptly to the Borrower.
(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 Borrower. Within five Business Days after its
receipt of such notice, the 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
-------- -------
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----------------
96
obligations under this Agreement (including, without limitation, its Commitment
to the Borrower 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 Borrower, the Administrative Agent, the
Managing Agents, the Documentation Agent, the Letter of Credit Agent 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)
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 the 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 Borrower 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 Borrower furnished to such Lender by or on behalf of the Borrower; provided
--------
that, prior to any such disclosure of Confidential 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
Borrower 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 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 the Borrower create a
Credit Agreement
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97
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. The 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 the
------
Borrower shall have a claim against the Issuing Bank, and the Issuing Bank shall
be liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the 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 laws 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 constitute one and the same
agreement.
Credit Agreement
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98
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 Administrative Agent,
---------------
any Managing Agent, the Documentation Agent, the Letter of Credit Agent or any
Lender shall disclose any Confidential Information to any Person without the
consent of the Borrower, 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 Borrower 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 and (d) 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 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 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 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 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
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99
parties hereto 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.
SECTION 9.13. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
--------------------
ADMINISTRATIVE AGENT, THE MANAGING AGENTS, THE DOCUMENTATION AGENT, THE LETTER
OF CREDIT AGENT AND 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 THE ADMINISTRATIVE AGENT, THE MANAGING AGENTS, THE
DOCUMENTATION AGENT, THE LETTER OF CREDIT AGENT OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Credit Agreement
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100
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.
MARRIOTT INTERNATIONAL, INC.
By /s/ Carolyn B. Handlon
--------------------------------
Title: Vice President &
Assistant Treasurer
Administrative Agent
--------------------
CITIBANK, N.A.,
as Administrative Agent
By /s/ Stuart c. Miller
-------------------------------
Title: V.P./S.C.O.
Managing Agents
---------------
THE CHASE MANHATTAN BANK,
as Managing Agent
By /s/ William J. Caggiano
-------------------------------
Title: Managing Director
Address:
270 Park Avenue
New York, New York 10017
Credit Agreement
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101
THE FIRST NATIONAL BANK OF
CHICAGO, as Managing Agent
By /s/ Gregory A. Gilbert
-------------------------------
Title: Vice President
Address:
One First National Plaza,
Suite 0318
Chicago, Illinois 60670
The Documentation Agent
-----------------------
THE BANK OF NOVA SCOTIA,
as Documentation Agent
By /s/ J.R. Trimble
-------------------------------
Title: Senior Relationship
Manager
Address:
One Liberty Plaza
New York, New York 10006
Letter of Credit Agent
----------------------
THE BANK OF NOVA SCOTIA,
as Letter of Credit Agent
By /s/ J.R. Trimble
-------------------------------
Title: Senior Relationship
Manager
Address:
One Liberty Plaza
New York, New York 10006
Credit Agreement
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102
Commitment Banks
- ---------- -----
$80,000,000.00 CITIBANK, N.A.
By /s/ Stuart G. Miller
-------------------------------
Title: V.P./S.C.O.
$80,000,000.00 THE BANK OF NOVA SCOTIA
By /s/ J.R. Trimble
-------------------------------
Title: Senior Relationship
Manager
$72,000,000.00 THE CHASE MANHATTAN BANK
By /s/ William J. Caggiano
--------------------------------
Title: Managing Director
$72,000,000.00 THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Gregory A. Gilbert
-------------------------------
Title: Vice President
$62,000,000.00 BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Dale Mason
-------------------------------
Title: Vice President
Credit Agreement
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103
$62,000,000.00 THE BANK OF NEW YORK
By /s/ Gregory P. Shefrin
-------------------------------
Title: Vice President
$62,000,000.00 CIBC INC.
By /s/ Christopher P. Kleczkowski
-------------------------------
Title: Director, CIBC Wood Gundy
Securities Corp., as
Agent
$62,000,000.00 DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By /s/ David H. Kahn
-------------------------------
Title: Assistant Vice President
By /s/ Susan M. O'Connor
-------------------------------
Title: Director
$62,000,000.00 FIRST UNION NATIONAL BANK OF
MARYLAND
By /s/ Barbara K. Angel
-------------------------------
Title: Vice President
$62,000,000.00 MELLON BANK, N.A.
By /s/ Laurie G. Dunn
-------------------------------
Title: Vice President
Credit Agreement
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104
$62,000,000.00 THE MITSUI TRUST AND BANKING
COMPANY, LIMITED
By /s/ Margaret Holloway
-------------------------------
Title: Vice President & Manager
$62,000,000.00 THE SANWA BANK, LIMITED NEW YORK
BRANCH
By /s/ Douglas J. Sorresso
-------------------------------
Title: Vice President
$50,000,000.00 BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By /s/ Catherine Moeser
-------------------------------
Title: Assistant Vice President
$50,000,000.00 THE FUJI BANK, LIMITED
By /s/ Toshiaki Yakura
-------------------------------
Title: Senior Vice President
$50,000,000.00 LTCB TRUST COMPANY
By /s/ Rene LeBlanc
-------------------------------
Title: Senior Vice President
$50,000,000.00 THE SAKURA BANK, LIMITED
By /s/ Yasumasa Kikuchi
-------------------------------
Title: Senior Vice President
Credit Agreement
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105
$42,000,000.00 BANK OF HAWAII
By /s/ Joseph T. Donaldson
-------------------------------
Title: Vice President
$42,000,000.00 COMERICA BANK
By /s/ Tamara J. Gurne
-------------------------------
Title: Assistant Vice President
$42,000,000.00 FIRST NATIONAL BANK OF MARYLAND
By /s/ Lauren D. Johnston
-------------------------------
Title: Assistant Vice President
$42,000,000.00 FLEET NATIONAL BANK
By /s/ Dorothy E. Bambach
-------------------------------
Title: Senior Vice President
$42,000,000.00 SOCIETE GENERALE
By /s/ Sedare Coradin
-------------------------------
Title: Vice President
Credit Agreement
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106
$35,000,000.00 BANCA COMMERCIALE ITALIANA - NEW
YORK BRANCH
By /s/ Charles Dougherty
-------------------------------
Title: Vice President
By /s/ B. Carlson
-------------------------------
Title: Assistant Vice President
$35,000,000.00 CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Mary P. Daly
-------------------------------
Title: Vice President
$35,000,000.00 FIRST HAWAIIAN BANK
By /s/ Travis Ruetinik
-------------------------------
Title: Corporate Banking Officer
$35,000,000.00 THE INDUSTRIAL BANK OF JAPAN TRUST
COMPANY
By /s/ Masahiro Ito
-------------------------------
Title: Senior Vice President
$35,000,000.00 THE NORTHERN TRUST COMPANY
By /s/ Joe Yacullo
-------------------------------
Title: Vice President
Credit Agreement
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107
$35,000,000.00 SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By /s/ Janet P. Sammons
-------------------------------
Title: Vice President
$30,000,000.00 THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By /s/ John C. Kissinger
-------------------------------
Title: Joint General Manager
$25,000,000.00 RIGGS BANK N.A.
By /s/ Margaret Mary Scelzo
-------------------------------
Title: Senior Vice President
$25,000,000.00 UNITED STATES NATIONAL BANK OF
OREGON
By /s/ Douglas A. Rich
-------------------------------
Title: Vice President
$1,500,000,000.00 Total of the Commitments
Credit Agreement
----------------