EXECUTION COPY
U.S. $120,000,000
THREE YEAR CREDIT AGREEMENT
Dated as of June 16, 2003
Among
GATX FINANCIAL CORPORATION
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITICORP USA, INC.
as Administrative Agent
and
CITIGROUP GLOBAL MARKETS INC.
and
J.P. MORGAN SECURITIES INC.
As Joint Lead Arrangers and Book Managers
TABLE OF CONTENTS
<Table>
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 12
SECTION 1.03. Accounting Terms 12
ARTICLE II
SECTION 2.01. The Advances and Letters of Credit 12
SECTION 2.02. Making the Advances 12
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit 13
SECTION 2.04. Fees 14
SECTION 2.05. Optional Termination or Reduction of the Commitments 15
SECTION 2.06. Repayment 15
SECTION 2.07. Interest on Advances 16
SECTION 2.08. Interest Rate Determination 16
SECTION 2.09. Optional Conversion of Advances 17
SECTION 2.10. Prepayments of Advances 17
SECTION 2.11. Increased Costs 17
SECTION 2.12. Illegality 18
SECTION 2.13. Payments and Computations 18
SECTION 2.14. Taxes 19
SECTION 2.15. Sharing of Payments, Etc. 20
SECTION 2.16. Evidence of Debt 20
SECTION 2.17. Use of Proceeds 20
SECTION 2.18. Increase in the Aggregate Commitments 21
</Table>
<Table>
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 22
SECTION 3.02. Conditions Precedent to Each Borrowing, Commitment Increase and Issuance 23
SECTION 3.03. Determinations Under Section 3.01 23
ARTICLE IV
SECTION 4.01. Representations and Warranties 23
ARTICLE V
SECTION 5.01. Affirmative Covenants 25
SECTION 5.02. Negative Covenants 27
SECTION 5.03. Financial Covenants 30
ARTICLE VI
SECTION 6.01. Events of Default 30
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default 32
ARTICLE VII
SECTION 7.01. Authorization and Action 32
SECTION 7.02. Agent's Reliance, Etc. 32
SECTION 7.03. Citicorp and Affiliates 33
SECTION 7.04. Lender Credit Decision 33
SECTION 7.05. Indemnification 33
SECTION 7.06. Successor Agent 34
SECTION 7.07. Other Agents. 34
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 34
SECTION 8.02. Notices, Etc. 34
SECTION 8.03. No Waiver; Remedies 35
SECTION 8.04. Costs and Expenses 35
</Table>
ii
<Table>
SECTION 8.05. Right of Set-off 36
SECTION 8.06. Binding Effect 36
SECTION 8.07. Assignments and Participations 36
SECTION 8.08. Confidentiality 38
SECTION 8.09. Governing Law 39
SECTION 8.10. Execution in Counterparts 39
SECTION 8.11. Jurisdiction, Etc. 39
SECTION 8.12. No Liability of the Issuing Banks 39
SECTION 8.13. Waiver of Jury Trial 40
</Table>
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Schedules
Schedule I - List of Applicable Lending Offices
Schedule 2.01(b) - Existing Letters of Credit
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
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THREE YEAR CREDIT AGREEMENT
Dated as of June 16, 2003
GATX FINANCIAL CORPORATION, a Delaware corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders (the "Initial
Lenders") and initial issuing banks (the "Initial Issuing Banks") listed on the
signature pages hereof, CITIGROUP GLOBAL MARKETS INC. and J.P. MORGAN SECURITIES
INC., as joint lead arrangers and book managers, and CITICORP USA, INC.
("Citicorp"), as administrative agent (the "Agent") for the Lenders (as
hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Advance" means an advance by a Lender to the Borrower as part
of a Borrowing and refers to a Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be a "Type" of Advance).
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank at its office at 388 Greenwich Street, New York,
New York 10013, Account No. 36852248, Attention: Bank Loan
Syndications.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable Margin" means as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
<Table>
<Caption>
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Moody's Base Rate Advances Eurodollar Rate Advances
- ------------------ --------------------- ------------------------
Level 1
A- / A3 or above 0.000% 0.625%
Level 2
BBB+ / Baa1 0.000% 0.825%
Level 3
BBB / Baa2 0.000% 1.250%
Level 4
BBB- / Baa3 0.200% 1.700%
Level 5
BB+ / Ba1 0.600% 2.100%
Level 6
Lower than Level 5 1.250% 2.750%
</Table>
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
<Table>
<Caption>
Public Debt Rating Applicable
S&P/Moody's Percentage
- ------------------ ----------
Level 1
A- / A3 or above 0.125%
Level 2
BBB+ / Baa1 0.175%
Level 3
BBB / Baa2 0.250%
Level 4
BBB- / Baa3 0.300%
Level 5
BB+ / Ba1 0.400%
Level 6
Lower than Level 5 0.500%
</Table>
"Applicable Utilization Fee" means, as of any date that the
aggregate Advances plus the aggregate Available Amount of the Letters
of Credit outstanding exceed 50% of the aggregate Revolving Credit
Commitments, a percentage per annum determined by reference to the
Public Debt Rating in effect on such date as set forth below:
<Table>
<Caption>
Public Debt Rating Applicable
S&P/Moody's Utilization Fee
- ------------------ ---------------
Level 1
A- / A3 or above 0.125%
Level 2
BBB+ / Baa1 0.250%
Level 3
BBB / Baa2 0.500%
Level 4
BBB- / Baa3 0.500%
Level 5
BB+ / Ba1 0.750%
Level 6
Lower than Level 5 0.750%
</Table>
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section
2.18(b).
"Assumption Agreement" has the meaning specified in Section
2.18(c)(ii).
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
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"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Borrower Information" has the meaning specified in Section
8.08.
"Borrowing" means a borrowing consisting of simultaneous
Advances of the same Type made by each of the Lenders pursuant to
Section 2.01.
"Business Day" means a day of the year other than Saturday or
Sunday or a day on which banks are not required or authorized by law to
close in New York City and, if the applicable Business Day relates to
any Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of
such Person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or
group (within the meaning of the Securities Exchange Act of 1934 and
the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof), of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Borrower, other than by GATX
Corporation or a wholly-owned Subsidiary thereof; or (b) for the period
of 12 consecutive months, a majority of the Board of Directors of the
Borrower shall no longer be composed of individuals (i) who were
members of said Board on the first day of such period, (ii) whose
election or nomination to said Board was approved by individuals
referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of said Board or (iii) whose
election or nomination to said Board was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of
such election or nomination at least a majority of said Board.
"Citibank" means Citibank, N.A.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
a Person, whether through the ability to exercise voting power, by
contract or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto.
"Commitment" means a Revolving Credit Commitment or a Letter
of Credit Commitment.
"Commitment Date" has the meaning specified in Section
2.18(b).
"Commitment Increase" has the meaning specified in Section
2.18(a).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
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"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08 or 2.09.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would,
unless cured or waived, become an Event of Default.
"Disclosed Litigation" means litigation disclosed in any
filing made by the Borrower prior to the date hereof pursuant to the
Securities and Exchange Act of 1934, as amended.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and 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 Agent.
"Effective Date" has the meaning specified in Section 3.01,
which is June 16, 2003.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender that is in the business of making and/or buying loans of the
type described therein; and (iii) any other Person approved by the
Agent, each Issuing Bank and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance
with Section 8.07, the Borrower, such approvals not to be unreasonably
withheld or delayed; provided, however, that neither the Borrower nor
an Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or
binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management,
release or threatened release of any Hazardous Material or to health
and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect
to a Plan (other than an event for which the 30 day notice period is
waived); (b) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section
302 of ERISA), whether or not waived; (c) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan;
(d) the incurrence by the Borrower or any of its ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination
of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the
4
incurrence by the Borrower or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
from the Borrower or any ERISA Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and 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 Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Moneyline Telerate
Markets Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period or, if for any
reason such rate is not available, the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate 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 Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period. If the Moneyline
Telerate Markets Page 3750 (or any successor page) is unavailable, the
Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing shall be determined by
the Agent on the basis of applicable rates furnished to and received by
the Agent from the Reference Banks two Business Days before the first
day of such Interest Period, subject, however, to the provisions of
Section 2.08.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period 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 a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Taxes" means, with respect to the Agent, any Lender
or any other recipient of any payment to be made by or on account of
any obligation of the Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient
is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located,
(b) any branch profits taxes imposed by the
5
United States of America or any similar tax imposed by any other
jurisdiction in which the Lender or such other recipient is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to
a request by the Borrower under Section 8.07(a)), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement or is
attributable to such Foreign Lender's failure or inability to comply
with Section 2.14(e), except to the extent that such Foreign Lender's
assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.14(a).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than the United States of America, any
State thereof or the District of Columbia.
"GAAP" has the meaning specified in Section 1.03.
"GARC" means a special purpose subsidiary, owned, directly or
indirectly, by the Borrower, and organized for the purposes of (i)
entering into one or more financings of equipment and related leases,
(ii) subleasing of equipment pursuant to subleases and (iii) engaging
in such other activities as are necessary, convenient or incidental
thereto. Each GARC shall be formed in a manner so that in the event of
a bankruptcy of the Borrower or any of its non-GARC subsidiaries, the
assets and liabilities of such GARC will not be consolidated with the
assets and liabilities of the Borrower or any of such subsidiaries.
"GATX Corporation" means GATX Corporation, a New York
corporation.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the
owner of such Indebtedness or other obligation of the payment thereof,
(c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation; provided,
that the term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or
other pollutants, including petroleum or petroleum distillates,
asbestos or
6
asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price
protection agreement or other interest or currency exchange rate or
commodity price hedging arrangement.
"Increase Date" has the meaning specified in Section 2.18(a).
"Increasing Lender" has the meaning specified in Section
2.18(b).
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily
paid, (d) all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred
purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect
of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers'
acceptances; provided, however, that "Indebtedness" shall not include
(x) Secured Nonrecourse Obligations and (y) nonrecourse obligations
incurred in connection with leveraged lease transactions as determined
in accordance with GAAP.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indenture Limit" means (a) the maximum amount of additional
indebtedness secured by liens or charges that may be incurred under
Section 10.6 (3) of the Indenture dated July 31, 1989, as supplemented
and amended by a Supplemental Indenture dated as of December 18, 1991,
by a Second Supplemental Indenture dated as of January 2, 1996 and by a
Third Supplemental Indenture dated as of October 14, 1997, between
Borrower and JP Morgan Chase Bank, as Trustee (the "Indenture") with
respect to the Borrower's $250,000,000 8.875% Senior Notes due 2009
without requiring the Borrower to equally and ratably secure
indebtedness outstanding under the 8.875% Senior Notes due 2009 minus
(b) the sum of all outstanding amounts under (i) the Indenture with
respect to the Borrower's Medium Term Notes - Series B and Medium Term
Notes - Series C, (ii) the Term Loan Agreement dated as of October 16,
1998 among the Borrower, the lenders named therein and Bayerische
Landesbank, as Agent and (iii) the Term Loan Agreement, dated as of
April 9, 2001, among Borrower, the lenders named therein and Bayerische
Landesbank, New York Branch, as Administrative Agent.
"Information Memorandum" means the information memorandum
dated May, 2003 used by the Agent in connection with the syndication of
the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance 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 or three weeks or one, two, three or six months, as the
Borrower may, upon notice received by the Agent not later than 1:00
P.M. (New York City time) on the third Business Day prior to the first
day of such Interest Period, select; provided, however, that:
7
(a) the Borrower may not select any Interest Period
that ends after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) 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, however, 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; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Issuing Bank" means an Initial Issuing Bank, an Assuming
Lender or any Eligible Assignee to which a portion of the Letter of
Credit Commitment hereunder has been assigned pursuant to Section 8.07
so long as such Eligible Assignee expressly agrees to perform in
accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by it as an Issuing Bank
and notifies the Agent of its Applicable Lending Office (which
information shall be recorded by the Agent in the Register), for so
long as the Initial Issuing Bank, Assuming Lender or Eligible Assignee,
as the case may be, shall have a Letter of Credit Commitment.
"L/C Cash Collateral Account" means an interest bearing cash
collateral account to be established and maintained by the Agent, over
which the Agent shall have sole dominion and control, upon terms as may
be satisfactory to the Agent.
"L/C Related Documents" has the meaning specified in Section
2.06(b)(i).
"Lenders" means the Initial Lenders, each Issuing Bank, each
Assuming Lender that shall become a party hereto pursuant to Section
2.18 and each Person that shall become a party hereto pursuant to
Section 8.07.
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to each
Initial Issuing Bank, the amount set forth opposite the Initial Issuing
Bank's name on the signature pages hereto under the caption "Letter of
Credit Commitment" or, if such Initial Issuing Bank has entered into
one or more Assignment and Acceptances, the amount set forth for such
Issuing Bank in the Register maintained by the Agent pursuant to
Section 8.07(d) as such Issuing Bank's "Letter of Credit Commitment",
as such amount may be reduced at or prior to such time pursuant to
Section 2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Issuing Banks'
Letter of Credit Commitments at such time and (b) $35,000,000, as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letters of Credit" has the meaning specified in Section
2.01(b).
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in, on or of such asset and (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease
or title retention agreement (or any
8
financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset, other than an operating lease.
"Material Adverse Effect" means a material adverse effect on
(a) the business, financial condition, operations, properties or,
solely for purposes of any representations or warranties made on the
Effective Date, prospects of the Borrower and its Subsidiaries taken as
a whole, (b) the ability of the Borrower to perform any of its
obligations under this Agreement (including the timely payment of all
amounts due hereunder), (c) the rights of or benefits available to the
Agent and the Lenders under this Agreement or (d) the validity or
enforceability of this Agreement.
"Material Indebtedness" means Indebtedness (other than the
Advances), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and its Subsidiaries in an aggregate
principal amount exceeding $25,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the
Borrower or any Subsidiary in respect of any Hedging Agreement at any
time shall be the maximum aggregate amount (giving effect to any
netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Worth" means, as at any date for any Person, the total
stockholders' equity for such Person and its Subsidiaries (determined
on a consolidated basis without duplication).
"Note" means a promissory note of the Borrower payable to the
order of any Lender, delivered pursuant to a request made under Section
2.16 in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from
the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to,
this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar
functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes or under ERISA in
respect of contingent liabilities thereunder that are not yet
due or are being contested in compliance with Section 5.01(d);
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by
law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are
being contested in compliance with Section 5.01(d);
(c) pledges and deposits made in the ordinary course
of business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business; and
9
(e) easements, zoning restrictions, rights-of-way
and similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from
the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not
include any Lien securing Indebtedness.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of
which the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Public Debt Rating" means, as of any date, the rating that
has been most recently announced by either S&P or Moody's, as the case
may be, for any class of non-credit enhanced long-term senior unsecured
debt issued by the Borrower or, if any such rating agency shall have
issued more than one such rating, the lowest such rating issued by such
rating agency. For purposes of the foregoing, (a) if only one of S&P
and Moody's shall have in effect a Public Debt Rating, the Applicable
Margin, the Applicable Percentage and the Applicable Utilization Fee
shall be determined by reference to the available rating; (b) if
neither S&P nor Moody's shall have in effect a Public Debt Rating, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee will be set in accordance with Level 6 under the
definition of "Applicable Margin", "Applicable Percentage" or
"Applicable Utilization Fee", as the case may be; (c) if the ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the higher rating unless such
ratings differ by two or more levels, in which case the applicable
level will be deemed to be one level below the higher of such levels;
(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; and (e) if
S&P or Moody's shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or Moody's,
as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
"Ratable Share" of any amount means, with respect to any
Lender at any time, the product of (a) a fraction the numerator of
which is the amount of such Lender's Revolving Credit Commitment at
such time and the denominator of which is the aggregate Revolving
Credit Commitments at such time and (b) such amount.
"Reference Banks" means Citicorp, JPMorgan Chase Bank,
Deutsche Bank AG New York Branch and Bank of Montreal.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest of the
Revolving Credit Commitments.
"Revolving Credit Commitment" means as to any Lender (a) the
amount set forth opposite such Lender's name on the signature pages
hereof, (b) if such Lender has become a Lender hereunder pursuant to an
Assumption Agreement, the amount set forth in such Assumption Agreement
or (c) if such Lender has entered into any Assignment and Acceptance,
the amount set forth for such Lender in the Register
10
maintained by the Agent pursuant to Section 8.07(d), as such amount may
be reduced pursuant to Section 2.05.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"Secured Nonrecourse Obligations" means (i) secured
obligations of the Borrower taken on a consolidated basis where
recourse of the payee of such obligations is expressly limited to an
assigned lease or loan receivable and the property related thereto,
(ii) debt of Single Transaction Subsidiaries or (iii) liabilities of
the Borrower taken on a consolidated basis to manufacturers of leased
equipment where such liabilities are payable solely out of revenues
derived from the leasing or sale of such equipment; excluding, however,
nonrecourse obligations incurred in connection with leveraged lease
transactions as determined in accordance with GAAP.
"Single Transaction Subsidiary" means any Subsidiary whose
assets consist solely of financing transactions and the proceeds
thereof with one or more obligors where the obligations of such
Subsidiary are not guaranteed by the Borrower or any other Subsidiary
and for which neither the Borrower nor such other Subsidiary is liable.
"subsidiary" means, with respect to any Person (the "Parent")
at any date, any other Person that, as of such date, the accounts of
which would be consolidated with those of the Parent in the Parent's
consolidated financial statements if such financial statements were
prepared in accordance with GAAP, as well as any other Person (a) of
which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in
the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) the
financial statements of which shall be (or should be) consolidated with
the financial statements of such Person in accordance with GAAP.
"Subsidiary" means any subsidiary of the Borrower.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Termination Date" means the earlier of (a) June 16, 2006 and
(b) the date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01.
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement, the borrowing of Advances, the
issuance of Letters of Credit and the use of the proceeds thereof.
"Unused Commitment" means, with respect to each Lender at any
time, (a) such Lender's Revolving Credit Commitment at such time minus
(b) the sum of (i) the aggregate principal amount of all Advances made
by such Lender (in its capacity as a Lender) and outstanding at such
time, plus (ii) such Lender's Ratable Share of the aggregate Available
Amount of all the Letters of Credit outstanding at such time.
"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 if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
11
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
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles of the United States consistent with those in effect on
the date, and applied in the preparation, of the financial statements referred
to in Section 4.01(d) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an amount not to
exceed at any time such Lender's Unused Commitment. Each Borrowing shall be in
an aggregate amount of $1,000,000 or an integral multiple thereof and shall
consist of Advances of the same Type made on the same day by the Lenders ratably
according to their respective Revolving Commitments. Within the limits of each
Lender's Revolving Credit Commitment, the Borrower may borrow under this Section
2.01(a), prepay pursuant to Section 2.10 and reborrow under this Section
2.01(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (each, a "Letter of
Credit") for the account of the Borrower from time to time on any Business Day
during the period from the Effective Date until 30 days before the Termination
Date in an aggregate Available Amount (i) for all Letters of Credit issued by
each Issuing Bank not to exceed at any time the lesser of (x) the Letter of
Credit Facility at such time and (y) such Issuing Bank's Letter of Credit
Commitment at such time and (ii) for each such Letter of Credit not to exceed an
amount equal to the Unused Commitments of the Lenders at such time. Each Letter
of Credit shall be in for an amount of $40,000 or more. No Letter of Credit
shall have an expiration date (including all rights of the Borrower or the
beneficiary to require renewal) later than the earlier of (x) the date that is
one year after the date of issuance thereof or (y) 10 Business Days prior to the
Termination Date. Within the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(b), repay any Advances
resulting from drawings thereunder pursuant to Section 2.03(c) and request the
issuance of additional Letters of Credit under this Section 2.01(b). Each letter
of credit listed on Schedule 2.01(b) shall be deemed to constitute a Letter of
Credit issued hereunder, and each Lender that is an issuer of such a Letter of
Credit shall, for purposes of Section 2.03, be deemed to be an Issuing Bank for
each such letter of credit, provided than any renewal or replacement of any such
letter of credit shall be issued by an Issuing Bank pursuant to the terms of
this Agreement.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made on
notice, given not later than (x) 1:00 P.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances or (y) 1:00 P.M. (New York City
time) on the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Agent, which shall give
to each Lender prompt notice thereof by telecopier or telex. Each such notice of
a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telecopier or telex in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Type of Advances comp rising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Lender shall,
before 3:00 P.M. (New York City time) on the date of such Borrowing make
available for the account of its Applicable Lending Office to the Agent at the
Agent's Account, in same day funds, such Lender's ratable portion of such
Borrowing. After the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make such funds
available to the Borrower at the Agent's address referred to in Section 8.02.
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(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for any Borrowing if
the aggregate amount of such Borrowing is less than $1,000,000 or if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances
may not be outstanding as part of more than six separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender,
including, without limitation, any loss (excluding loss of anticipated profits
(including the Applicable Margin)), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds as a result of any
failure to fulfill on or before the date specified in such Notice of Borrowing
for such Borrowing the applicable conditions set forth in Article III.
(d) Unless the Agent shall have received notice from a Lender prior to
the date of any Borrowing that such Lender will not make available to the Agent
such Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the 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 Agent, such Lender and the
Borrower severally agree to repay to the 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 Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit. (a) Request for Issuance. (i) Each Letter of Credit shall be issued
upon notice, given not later than 1:00 P.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of Credit
(or on such shorter notice as the applicable Issuing Bank may agree), by the
Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent, 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 telephone, confirmed
immediately in writing, or telecopier or telex, 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 (which
shall not be later one year after the issuance thereof), (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 customary application and agreement for letter
of credit as such Issuing Bank may specify to the Borrower requesting such
issuance for use in connection with such requested Letter of Credit (a "Letter
of Credit Agreement"). If the requested form of such Letter of Credit is
acceptable to such Issuing Bank in its sole discretion, such Issuing Bank will,
upon fulfillment of the applicable conditions set forth in Article III, make
such Letter of Credit available to the Borrower requesting such issuance at its
office referred to in Section 8.02 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.
(b) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Ratable Share of the aggregate amount available to be drawn under such
Letter of Credit. The Borrower hereby agrees to each such participation. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Agent, for the account of such Issuing
Bank, such Lender's Ratable Share of each drawing made under a Letter of Credit
13
funded by such Issuing Bank and not reimbursed by the Borrower on the date made,
or of any reimbursement payment required to be refunded to the Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender further acknowledges and agrees that its participation
in each Letter of Credit will be automatically adjusted to reflect such Lender's
Ratable Share of the Available Amount of such Letter of Credit at each time such
Lender's Revolving Credit Commitment is amended pursuant to the operation of
Section 2.18, an assignment in accordance with Section 8.07 or otherwise
pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by any such Issuing Bank of an Advance, which shall be a
Base Rate Advance, in the amount of such draft. Each Issuing Bank shall give
prompt notice (and such Issuing Bank will use its commercially reasonable
efforts to deliver such notice within one Business Day) of each drawing under
any Letter of Credit issued by it to the Borrower and the Agent. Upon written
demand by such Issuing Bank, with a copy of such demand to the Agent, each
Lender shall pay to the Agent such Lender's Ratable Share of such outstanding
Advance, by making available for the account of its Applicable Lending Office to
the Agent for the account of such Issuing Bank, by deposit to the Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Advance to be funded by such Lender. Promptly after
receipt thereof, the Agent shall transfer such funds to such Issuing Bank. Each
Lender agrees to fund its Ratable Share of an outstanding Advance on (i) the
Business Day on which demand therefor is made by such Issuing 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. If and to the extent
that any Lender shall not have so made the amount of such Advance available to
the Agent, such Lender agrees to pay to the Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
any such Issuing Bank until the date such amount is paid to the Agent, at the
Federal Funds Rate for its account or the account of such Issuing Bank, as
applicable. If such Lender shall pay to the Agent such amount for the account of
any such Issuing Bank on any Business Day, such amount so paid in respect of
principal shall constitute an Advance made by such Lender on such Business Day
for purposes of this Agreement, and the outstanding principal amount of the
Advance made by such Issuing Bank shall be reduced by such amount on such
Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (i) to
the Agent on the first Business Day of each month a written report summarizing
issuance and expiration dates of Letters of Credit during the preceding month
and drawings during such month under all Letters of Credit and (ii) to the Agent
and each Lender on the first Business Day of each calendar quarter a written
report setting forth the average daily aggregate Available Amount during the
preceding calendar quarter of all Letters of Credit.
(e) Failure to Make Advances. The failure of any Lender to make the
Advance to be made by it on the date specified in Section 2.03(c) shall not
relieve any other Lender of its obligation hereunder to make its Advance on such
date, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on such date.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the aggregate amount of
such Lender's Revolving Credit Commitment from the date hereof in the case of
each Initial Lender and from the effective date specified in the Assumption
Agreement or in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date at a rate per
annum equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing June 30, 2003, and on the Termination Date.
(b) Letter of Credit Fees. (i) The Borrower shall pay to the Agent for
the account of each Lender a commission on such Lender's Ratable Share of the
average daily aggregate Available Amount of all Letters of Credit outstanding
from time to time at a rate per annum equal to the Applicable Margin for
Eurocurrency Rate Advances in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September
14
and December, commencing June 30, 2003, and on the Termination Date, and after
the Termination Date payable upon demand; provided that the Applicable Margin
shall increase by 2% upon the occurrence and during the continuation of an Event
of Default if the Borrower is required to pay default interest pursuant to
Section 2.07(b).
(ii) The Borrower shall pay to each Issuing Bank for its own
account such reasonable and customary fronting, issuance, presentation,
amendment and other processing fees as may from time to time be agreed
in writing between the Borrower and such Issuing Bank.
(c) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as have been agreed between the Borrower and the Agent.
SECTION 2.05. Optional Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Agent, to terminate in whole or permanently reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
SECTION 2.06. Repayment. (a) Advances. The Borrower shall repay to the
Agent for the ratable account of the Lenders on the Termination Date the
aggregate principal amount of the Advances then outstanding.
(b) Letter of Credit Reimbursements. The obligations of the Borrower
under this Agreement, any Letter of Credit Agreement and any other agreement or
instrument, in each case, relating to any Letter of Credit 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
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
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, any Letter of Credit Agreement or any other
agreement or instrument, in each case, relating thereto (all of the
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 which any such
beneficiary or any such transferee may be acting), any Issuing Bank,
the Agent, any Lender 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 any 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;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any guarantee, for all or any of the obligations of the
Borrower in respect of the L/C Related Documents; or
15
(vii) 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 or a guarantor.
SECTION 2.07. Interest on Advances. (a) Scheduled Interest. The
Borrower shall pay interest on the unpaid principal amount of each Advance owing
to each Lender from the date of such Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance
is a Base Rate Advance, a rate per annum equal at all times to the sum
of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time plus (z) the
Applicable Utilization Fee in effect from time to time, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of
an Event of Default under Section 6.01(a), the Agent may, and upon the request
of the Required Lenders shall, require the Borrower to pay interest ("Default
Interest") on (i) the unpaid principal amount of each Advance 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 2% per
annum above the rate per annum required to be paid on such Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law,
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 2% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to clause
(a)(i) above, provided, however, that following acceleration of the Advances
pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder
whether or not previously required by the Agent.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the 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 Agent for the purpose of determining any
such interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to the Borrower and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Agent shall notify
the Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such Advances will
automatically, on the last day
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of the then existing Interest Period therefor, Convert into a Eurodollar Rate
Borrowing having an Interest Period of one month.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $1,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(f) If Moneyline Telerate Markets Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for determining
the Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances,
(ii) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or to Convert Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Advances. The Borrower may on any
Business Day, upon notice given to the Agent not later than 1:00 P.M. (New York
City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.08 and 2.12, Convert all
Advances of one Type comprising the same Borrowing into Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b) and no Conversion of any Advances shall result in
more separate Borrowings than permitted under Section 2.02(b). Each such notice
of a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Advances. The Borrower may, upon notice
at least two Business Days' prior to the date of such prepayment, in the case of
Eurodollar Rate Advances, and not later than 1:00 P.M. (New York City time) on
the date of such prepayment, in the case of Base Rate Advances, to the 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
amount of the Advances comprising part of the same 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 of $3,000,000 or an integral multiple
of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation 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),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or agreeing to issue or
of issuing or maintaining or participating in Letters of Credit (excluding for
purposes of this Section 2.11 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.14 shall govern), (ii)
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changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof and (iii) any such costs reflected in the
Eurodollar Rate Reserve Percentage), then the Borrower shall from time to time,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) Except to the extent reflected in the Eurodollar Rate Reserve
Percentage, if any Lender determines that compliance with any law or regulation
or any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law) 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, upon demand by such Lender
(with a copy of such demand to the Agent), the Borrower shall pay to the Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, 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 Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
(c) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than six months prior to the date that such Lender
notifies the Borrower of the change or circumstance giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the change or circumstance
giving rise to such increased costs or reductions is retroactive, then the
six-month period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the 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 any Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar
Rate Advances hereunder, (a) each Eurodollar Rate Advance will automatically,
upon such demand, Convert into a Base Rate Advance and (b) the obligation of the
Lenders to make Eurodollar Rate Advances or to Convert Advances into Eurodollar
Rate Advances shall be suspended until the Agent shall notify the Borrower and
the Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
each payment hereunder, irrespective of any right of counterclaim or set-off,
not later than 1:00 P.M. (New York City time) on the day when due in U.S.
dollars to the Agent at the Agent's Account in same day funds. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal, interest, facility fees or commissions ratably (other than amounts
payable pursuant to Section 2.04(b)(ii), 2.11, 2.14 or 8.04(c)) to the Lenders
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 any Assuming Lender becoming a
Lender hereunder as a result of a Commitment Increase pursuant to Section 2.18,
and upon the Agent's receipt of such Lender's Assumption Agreement and recording
of the information contained therein in the Register, from and after the
applicable Increase Date the Agent shall make all payments hereunder and under
any Notes issued in connection therewith in respect of the interest assumed
thereby to the Assuming Lender. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 8.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
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(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note
held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on clause (i) of the definition
of "Base Rate" shall be made by the 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 and of fees and Letter of Credit
commissions shall be made by the 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, fees or
commissions are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) 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, fee or commission, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the 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 Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the 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 the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the 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 Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by or an account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Agent, Lender or Issuing Bank
(as the case may be) 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
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Agent, each Lender and each
Issuing Bank, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) paid by the Agent, such Lender or the Issuing Bank, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or an Issuing Bank, or by the Agent on its own behalf or on
behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest
error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
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with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate. Each Foreign Lender will, on or
prior to the date of its execution and delivery of this Agreement in the case of
each Initial Lender and on the date of the Assumption Agreement or the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as reasonably requested in
writing by the Borrower (but only so long as such Lender remains lawfully able
to do so), shall provide each of the Agent and the Borrower with two original
Internal Revenue Service Forms W-8BEN or W-8ECI, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes.
SECTION 2.15. 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 Advances owing to it (other than
pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to 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 2.15
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.
SECTION 2.16. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the Borrower
(with a copy of such notice to the Agent) to the effect that a Note is required
or appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the Advances owing to, or to be made by, such
Lender, the Borrower shall promptly execute and deliver to such Lender a Note
payable to the order of such Lender in a principal amount up to the Revolving
Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 8.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and (iv)
the amount of any sum received by the Agent from the Borrower hereunder and each
Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from the Borrower to,
in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; provided,
however, that the failure of the Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of the Borrower under this
Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) for general
corporate purposes of the Borrower and its Subsidiaries.
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SECTION 2.18. Increase in the Aggregate Commitments. (a) The Borrower
may, at any time prior to June 30, 2003, and, after such date, not more than
once in any calendar year prior to the Termination Date, by notice to the Agent,
request that the aggregate amount of the Commitment be increased by an amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof (each a
"Commitment Increase") to be effective as of a date that is at least 90 days
prior to the scheduled Termination Date then in effect (the "Increase Date") as
specified in the related notice to the Agent; provided, however that (i) in no
event shall the aggregate amount of the Commitments at any time exceed
$200,000,000 and (ii) on the date of any request by the Borrower for a
Commitment Increase and on the related Increase Date, the applicable conditions
set forth in Article III shall be satisfied.
(b) The Agent shall promptly notify the Lenders and such other Eligible
Assignees as the Borrower may identify of a request by the Borrower for a
Commitment Increase, which notice shall include (i) the proposed amount of such
requested Commitment Increase, (ii) the proposed Increase Date and (iii) the
date by which Lenders and such Eligible Assignees wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date"). Each Lender that is willing to participate
in such requested Commitment Increase (each an "Increasing Lender") and each
Eligible Assignee that is willing to participate in such requested Commitment
Increase (each, an "Assuming Lender") shall, in its sole discretion, give
written notice to the Agent on or prior to the Commitment Date of the amount by
which it is willing to participate in such Commitment Increase; provided,
however, that the Commitment of each such Assuming Lender shall be in an amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof. If the
Lenders and Assuming Lenders notify the Agent that they are willing to increase
the amount of their respective Commitments by an aggregate amount that exceeds
the amount of the requested Commitment Increase, the requested Commitment
Increase shall be allocated among the Lenders and Assuming Lenders willing to
participate therein in such amounts as are agreed between the Borrower and the
Agent.
(c) Promptly following each Commitment Date, the Agent shall notify the
Borrower as to the amount, if any, by which the Increasing Lenders and Assuming
Lenders are willing to participate in the requested Commitment Increase. On each
Increase Date, each Assuming Lender shall become a Lender party to this
Agreement as of such Increase Date and the Commitment of each Increasing Lender
for such requested Commitment Increase shall be so increased by such amount (or
by the amount allocated to such Lender pursuant to the last sentence of Section
2.18(b)) as of such Increase Date; provided, however, that the Agent shall have
received on or before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of
Directors of the Borrower or the Executive Committee of such Board
approving the Commitment Increase and the corresponding modifications
to this Agreement and (B) an opinion of counsel for the Borrower (which
may be in-house counsel), confirming the opinion delivered pursuant to
Section 3.01(e)(iv);
(ii) an assumption agreement from each Assuming Lender, if
any, in form and substance satisfactory to the Borrower and the Agent
(each an "Assumption Agreement"), duly executed by such Eligible
Assignee, the Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the
Borrower and the Agent.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.18(c), the Agent shall notify
the Lenders (including, without limitation, each Assuming Lender) and the
Borrower, on or before 1:00 P.M. (New York City time), by telecopier or telex,
of the occurrence of the Commitment Increase to be effected on such Increase
Date and shall record in the Register the relevant information with respect to
each Increasing Lender and each Assuming Lender on such date. Each Increasing
Lender and each Assuming Lender shall, as of the Increase Date, fund their
respective Ratable Shares of each Borrowing then outstanding, which funds the
Agent shall distribute to the other Lenders to effect a funding of each such
Borrowing by each of the Lenders (including the Increasing Lenders and the
Assuming Lenders) ratably in accordance with their Ratable Shares after giving
effect to the applicable Commitment Increase and, if the applicable Increase
Date is
21
not the last day of an Interest Period, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) Nothing shall have come to the attention of the Lenders during the
course of their due diligence investigation to lead them to believe that the
Information Memorandum, together with any update supplied by the Borrower to the
Lenders, was or has become misleading, incorrect or incomplete in any material
respect; without limiting the generality of the foregoing, the Lenders shall
have been given such access to the management, records, books of account,
contracts and properties of the Borrower and its Subsidiaries as they shall have
requested.
(b) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(c) The Borrower shall have paid all reasonable invoiced fees and
expenses of the Agent and the Lenders (including the fees and expenses of
counsel to the Agent).
(d) On the Effective Date, the following statements shall be true and
the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Borrower, dated the Effective Date,
stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(e) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the Agent
and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent
requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Agreement and the Notes, and
of 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 reasonably acceptable opinion of Ronald Ciancio,
general counsel of the Borrower, substantially in the form of Exhibit D
hereto and as to such other matters as any Lender through the Agent may
reasonably request.
(v) A reasonably acceptable opinion of Shearman & Sterling
LLP, counsel for the Agent, in form and substance satisfactory to the
Agent.
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SECTION 3.02. Conditions Precedent to Each Borrowing, Commitment
Increase and Issuance. The obligation of each Lender to make an Advance on the
occasion of each Borrowing, each Commitment Increase and the obligations of each
Issuing Bank to issue a Letter of Credit shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such
Borrowing, the applicable Increase Date or such issuance (a) the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing, request for Commitment Increase, Notice of Issuance and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing,
such Increase Date or such issuance such statements are true):
(i) the representations and warranties contained in Section
4.01 (except the representations set forth in subsection (d)(ii)
thereof and in subsection (f) thereof) are correct on and as of such
date, before and after giving effect to such Borrowing, such Commitment
Increase or such issuance and to the application of the proceeds
therefrom, as though made on and as of such date,
(ii) no event has occurred and is continuing, or would result
from such Borrowing, such Commitment Increase or such issuance or from
the application of the proceeds therefrom, that constitutes a Default;
and
(iii) in the case of a Borrowing or issuance, the Indenture
Limit, calculated using the Borrower's most recent available
information, exceeds the aggregate principal amount of the Advances
plus the Available Amount of the Letters of Credit to be outstanding
after giving effect to such Borrowing or issuance, respectively;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Borrower represents
and warrants as follows:
(a) Organization; Powers. Each of the Borrower and its Subsidiaries is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
(b) Authorization; Enforceability. The Transactions are within the
Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
23
(c) Governmental Approvals; No Conflicts. The Transactions (i) do not
require any consent or approval of, registration or filing with, or any other
action by, any Governmental Authority, except such as have been obtained or made
and are in full force and effect, (ii) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Borrower or any of its Subsidiaries or any order of any Governmental Authority,
(iii) will not violate or result in a default under any indenture, agreement or
other instrument binding upon the Borrower or any of its Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be made by
the Borrower or any of its Subsidiaries, and (iv) will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
(d) Financial Condition; No Material Adverse Change. (i) The Borrower
has heretofore furnished to the Lenders its consolidated balance sheet and
statements of income, stockholders equity and cash flows (A) as of and for the
fiscal year ended December 31, 2002, reported on by Ernst & Young, independent
public accountants, and (B) as of and for the fiscal quarter and the portion of
the fiscal year ended March 31, 2003, certified by its chief financial officer.
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and
its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, consistently applied, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (B) above.
(ii) Except for disclosures, if any, made in filings by the
Borrower prior to the date hereof pursuant to the Securities and
Exchange Act of 1934, as amended, since December 31, 2002, there has
been no material adverse change in the business, assets, operations or
condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole.
(e) Properties. (i) Each of the Borrower and its Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property
material to its business, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes.
(ii) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, trade names, copyrights, patents and
other intellectual property material to its business, and the use
thereof by the Borrower and its Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(f) Litigation and Environmental Matters. (i) There are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority
pending against or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries (A) which are likely,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Litigation) or (B) that involve this Agreement or the
Transactions.
(ii) Except for the Disclosed Litigation and except with
respect to any other matters that, individually or in the aggregate,
are not likely to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (A) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (B) has
become subject to any Environmental Liability, (C) has received notice
of any claim with respect to any Environmental Liability or (D) knows
of any basis for any Environmental Liability.
(iii) Since the date of this Agreement, there has been no
change in the status of the Disclosed Litigation that, individually or
in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
(g) Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so,
24
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No Default has occurred and is continuing.
(h) Investment and Holding Company Status. Neither the Borrower nor any
of its Subsidiaries is (i) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (ii) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
(i) Taxes. Each of the Borrower and its Subsidiaries has timely filed
or caused to be filed all Tax returns and reports required to have been filed
and has paid or caused to be paid all Taxes required to have been paid by it,
except (i) Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable, has
set aside on its books adequate reserves or (ii) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse
Effect.
(j) ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) as of the date of the
most recent financial statements reflecting such amounts: (i) did not exceed the
fair market value of the assets of such Plan by an aggregate amount in excess of
$25,000,000 or (ii) if such shortfall is in excess of such amount, such
shortfall could not reasonably be expected to result in a Material Adverse
Effect.
(k) Disclosure. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower to the Agent or
any Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time. There is no fact known to the Borrower that could
reasonably be expected to have a Material Adverse Effect that has not been
disclosed herein or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to the Lenders for use in
connection with the transactions contemplated hereby.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants. Until the Commitments and Letters
of Credit have expired or been terminated and the principal of and interest on
each Advance and all fees payable hereunder shall have been paid in full, the
Borrower covenants and agrees with the Lenders that:
(a) Financial Statements and Other Information. The Borrower will
furnish to the Agent and each Lender:
(i) within 105 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by Ernst & Young
or other independent public accountants of recognized national standing
(without a going "concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit)
to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied (the
furnishing of the Borrower's Form 10-K will satisfy the requirements of
this Section 5.01(a)(i));
25
(ii) within 55 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes (the furnishing of the Borrower's Form 10-Q will satisfy the
requirements of this Section 5.01(a)(ii));
(iii) concurrently with any delivery of financial statements
under clause (i) or (ii) above, a certificate of a Financial Officer of
the Borrower (A) certifying as to whether a Default has occurred since
the delivery of the previous such certificate, or, with respect to the
first such certificate, the date hereof and, if such Default has
occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (B) setting forth reasonably
detailed calculations demonstrating compliance with Sections 5.02(a)
and 5.03 and (C) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited
financial statements referred to in Section 4.01(d) and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(iv) concurrently with any delivery of financial statements
under clause (i) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(v) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, as the case may be; and
(vi) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as the Agent or any Lender may reasonably
request.
(b) Notices of Material Events. The Borrower will furnish to the Agent
and each Lender prompt written notice of the following:
(i) the occurrence of any Default;
(ii) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that are
likely to result in a Material Adverse Effect;
(iii) the occurrence of any ERISA Event that could reasonably
be expected to result in a Material Adverse Effect; and
(iv) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
26
(c) Existence; Conduct of Business. The Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 5.02.(b).
(d) Payment of Obligations. The Borrower will, and will cause each of
its Subsidiaries to, pay its obligations, including Tax liabilities, that, if
not paid, could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (i) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (ii) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (iii) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse
Effect.
(e) Maintenance of Properties; Insurance. The Borrower will, and will
cause each of its Subsidiaries to, (i) keep and maintain all property material
to the conduct of its business in good working order and condition, ordinary
wear and tear excepted, and (ii) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations except to the extent that the failure
to maintain any such insurance could not reasonably be expected to result in a
Material Adverse Effect.
(f) Books and Records; Inspection Rights. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries are made of all dealings and transactions
in relation to its business and activities. The Borrower will, and will cause
each of its Subsidiaries to, permit any representatives designated by the Agent
or any Lender, upon reasonable prior notice and (unless an Event of Default has
occurred and is continuing, at the expense of the Agent or such Lender, as the
case may be), to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances and condition
with its officers and independent accountants, all at such reasonable times and
as often as reasonably requested.
(g) Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
(h) Use of Proceeds. The proceeds of the Advances will be used only for
general corporate purposes of the Borrower and its Subsidiaries in the ordinary
course of business. No part of the proceeds of any Advance will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations U and X.
SECTION 5.02. Negative Covenants. Until the Commitments and Letters of
Credit have expired or terminated and the principal of and interest on each
Advance and all fees payable hereunder have been paid in full the Borrower
covenants and agrees with the Lenders that:
(a) Negative Pledge. The Borrower will not, nor will it permit any
Subsidiary to, create, incur, assume or suffer to exist any Lien in, of or on
any property of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, except:
(i) Liens created pursuant to this Section 5.02(a);
(ii) Liens existing on the date of this Agreement;
(iii) Permitted Encumbrances;
27
(iv) Liens on property of a Subsidiary of the Borrower to
secure only obligations owing to the Borrower or another such
Subsidiary or Liens on property of any Person which becomes a
Subsidiary of the Borrower after the date of this Agreement, provided
that such Liens are in existence at the time such Person becomes a
Subsidiary of the Borrower and were not created in anticipation
thereof;
(v) Liens upon real and/or tangible personal property acquired
after the date hereof (by purchase, construction or otherwise) by the
Borrower or any of its Subsidiaries, each of which Liens either (A)
existed on such property before the time of its acquisition and was not
created in anticipation thereof, or (B) was created solely for the
purpose of securing Indebtedness representing, or incurred to finance,
refinance or refund, the cost (including the cost of construction) of
such property; provided that no such Lien shall extend to or cover any
property of the Borrower or such Subsidiary other than the property so
acquired and improvements thereon; provided, further, that the
principal amount of Indebtedness secured by any such Lien shall at no
time exceed the fair market value (as determined in good faith by a
senior financial officer of the Borrower) of such property at the time
it was acquired (by purchase, construction or otherwise); and provided
finally, that such Lien attaches to such asset concurrently with or
within 18 months of acquisition thereof;
(vi) Liens on assets related to railcar operating leases
(including, but not limited to, car service contracts and cash
collateral accounts funded with revenues under such leases) securing
obligations of the Borrower or a Subsidiary under such lease;
(vii) attachment, judgment and other similar Liens arising in
connection with court proceedings, provided that (A) the execution or
other enforcement of such Liens in an aggregate amount exceeding
$25,000,000 is effectively stayed and (B) the claims secured thereby
are being actively contested in good faith and by appropriate
proceedings;
(viii) in addition to the Lien permitted in the foregoing
clauses (i) through (vii) of this Section 5.02(a), Liens incurred in
the ordinary course of business of the Borrower and its Subsidiaries,
provided that the aggregate amount of indebtedness secured by Liens
pursuant to this clause (ix) shall not at any time exceed $250,000;
(ix) any extension, renewal or replacement, or the combination
of, the foregoing, provided, however, that the Liens permitted
hereunder shall not be spread to cover any additional Indebtedness or
property (other than a substitution of like property), and
(x) additional Liens upon real and/or personal property of the
Borrower or such Subsidiary created after the date hereof so long as
Unsecured Debt (as defined below) shall not, at any time, exceed
Eligible Assets (as defined below).
For the purposes of Section 5.02(a)(x):
"Eligible Assets" means for the Borrower, the difference, as
at any date of determination, of the following (each of the following
items being as reflected in the Borrower's balance sheet (and/or notes
thereto) delivered in accordance with Section 5.01(a)(i) or (ii)
hereof): (A) the sum of (i) cash plus (ii) available for sale
securities plus (iii) direct financing leases plus (iv) leveraged
leases plus (v) loans plus (vi) operating lease assets, facilities and
other- net plus (vii) investment in joint ventures plus (viii) assets
held (or contracted to be acquired) for sale and lease plus (ix)
investment in future residuals minus (B) (i) encumbered assets plus
(ii) leveraged leases plus (iii) 50% of investment in joint ventures.
"Unsecured Debt" means for Borrower, the sum, as at any date
of determination, of the following (each of the following items being
as reflected in the Borrower's balance sheet (and/or notes thereto)
delivered in accordance with Section 5.01(a)(i) or (ii) hereof): (i)
commercial paper and bankers acceptances plus (ii) notes payable
(including without limitation, any indebtedness payable in respect of
28
borrowings under existing unsecured credit facilities) plus (iii)
Capital Lease Obligations plus (iv) senior term notes, so long as, in
each case, such item is unsecured.
(b) Fundamental Changes. (i) The Borrower will not, and will not permit
any Subsidiary to, merge into or consolidate with any other Person, or permit
any other Person to merge into or consolidate with it, or sell, transfer, lease
or otherwise dispose of (in one transaction or in a series of transactions) all
or substantially all of its assets, or all or substantially all of the stock of
any of its Subsidiaries (in each case, whether now owned or hereafter acquired),
or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default shall have occurred and be continuing (A)
any Person may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (B) any Person may merge into any Subsidiary in a
transaction in which the surviving entity is a Subsidiary, (C) any Subsidiary
may sell, transfer, lease or otherwise dispose of its assets to the Borrower or
to another Subsidiary and (D) any Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to the
Lenders.
(ii) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and its
subsidiaries on the date of execution of this Agreement, and businesses
reasonably related thereto, including, without limitation, the business
of leasing, investing in, financing and selling transportation,
industrial and commercial equipment and commercial and other real
estate investment property and companies and activities related
thereto.
(c) Transactions with Affiliates. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (i) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (ii)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliate and (iii) any transaction permitted by Section 5.02(b);
provided that the foregoing provisions of this Section 5.02(c) shall not
prohibit any such Person from declaring or paying any lawful dividend so long
as, after giving effect thereto, no Default shall have occurred and be
continuing.
(d) Restrictive Agreements. The Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, enter into, incur or permit
to exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (i) the ability of the Borrower or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets, which
restriction (or condition) is more restrictive, in substance, than the
restrictions in Section 5.02(a), or (ii) the ability of any Subsidiary, other
than KVG Kesselwagen Vermietgesellschaft, m.b.h., KVG Kesselwagen
Vermietgesellschaft mbH and Dyrekcja Eksploatacji Cystem Sp. z.o.o. to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Borrower or any other Subsidiary or
to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided that
(A) the foregoing shall not apply to restrictions and conditions imposed by law
or by this Agreement, (B) the foregoing shall not apply to restrictions and
conditions existing on the date hereof (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (C) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(D) clause (i) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (E) clause (i) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof. For the purposes of this Section 5.02(d), the term
"Subsidiary" does not include any GARC or Single Transaction Subsidiary.
(e) Fiscal Year. The Borrower will not permit its fiscal year to end on
other than December 31 and for each of is fiscal quarters to end on other than
the last day of standard calendar quarters.
29
SECTION 5.03. Financial Covenants. Until the Commitments and Letters
of Credit have expired or terminated and the principal and interest on each
Advance and all fees payable hereunder have been paid in full the Borrower
covenants and agrees with the Lenders that:
(a) Net Worth. The Borrower will not permit its Net Worth to be, at any
time, less than $1,100,000,000 and
(b) Fixed Charge Coverage. The Borrower will not permit its Fixed
Charge Coverage Ratio, as at any fiscal quarter end, to be less than 1.30 to 1.
For the purposes of this Section 5.03(b),
"Cash Flow" means, for any period, the sum, for the Borrower
and its consolidated Subsidiaries, of the following: (i) net income,
(ii) income taxes, (iii) non-cash provisions for, or actual write-offs
of, assets (without duplication in respect of any prior period) and
(iv) Fixed Charges.
"Fixed Charge Coverage Ratio" means, for any day, the ratio of
(i) Cash Flow for the period of four consecutive fiscal quarters of the
Borrower ending on or most recently ended prior to such day to (ii)
Fixed Charges for such period.
"Fixed Charges" means the sum, for any period for the Borrower
and its consolidated Subsidiaries, of the following: (i) Interest
Expense plus (ii) estimate of that portion of minimum rents under
operating leases representing the interest factor.
"Interest Expense" means, for any period, the sum, for the
Borrower and its consolidated Subsidiaries, of the following: (i) all
interest in respect of Indebtedness (including the interest component
of any payments in respect of Capital Lease Obligations) accrued or
capitalized during such period (whether or not actually paid during
such period) plus (ii) the net amount payable (or minus the net amount
receivable) under Hedging Agreements relating to interest during such
period (whether or not actually paid or received during such period).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of or interest on any
Advance or any fee or any other amount payable under this Agreement, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of two Business Days;
(b) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary (i) in this Agreement or any amendment or
modification hereof or (ii) in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement or any
amendment or modification thereof, shall prove to have been incorrect in any
material respect when made or deemed made;
(c) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.01(b), (c) (with respect to the
Borrower's existence) or (h) or in Sections 5.02 or 5.03;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a) or (c) of this Section 6.01), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Agent (given at
the request of any Lender) to the Borrower;
30
(e) the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable
and after any applicable grace and/or notice period;
(f) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (after giving effect to any applicable grace period and/or notice
period) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (f) shall not apply
to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(h) the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (g) of this Section 6.01, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Subsidiary
or for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;
(i) the Borrower or any Subsidiary shall become unable, admit
in writing or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of $25,000,000 shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any Subsidiary to
enforce any such judgment;
(k) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
or
(l) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments (other than the Commitments to make Advances by an Issuing Bank or a
Lender pursuant to Section 2.03(c)), and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (g) or (h) of this Article, the Commitments (other
than the
31
Commitments to make Advances by an Issuing Bank or a Lender pursuant to Section
2.03(c)) shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Agent may with the consent, or shall at the request, of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, (a) pay to the Agent on behalf of the Lenders in same
day funds at the 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 or (b) make such other arrangements in
respect of the outstanding Letters of Credit as shall be acceptable to the
Required Lenders. If at any time the Agent determines that any funds held in the
L/C Cash Collateral Account are subject to any right or claim of any Person
other than the Agent and the Lenders 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 Agent, pay to the Agent, as additional funds
to be deposited and held in the L/C Cash Collateral Account, an amount equal to
the excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the Agent
determines to be free and clear of any such right and claim. Upon the drawing of
any Letter of Credit, to the extent funds are on deposit in the L/C Cash
Collateral Account, such funds shall be applied to reimburse the Issuing Banks
to the extent permitted by applicable law. After (i) no Event of Default shall
be continuing or (ii) all such Letters of Credit shall have expired or been
fully drawn upon and all other obligations of the Borrower hereunder and under
the Notes shall have been paid in full, the balance, if any, in such LC Cash
Collateral Account shall be returned to the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender (in its
capacity as a Lender and an Issuing Bank, as applicable) hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion 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 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, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The 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.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any
of its 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 this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assumption Agreement entered into by an
Assuming Lender as provided in Section 2.18 or an Assignment and Acceptance
entered into by such Lender, as assignor, and an Eligible Assignee, as assignee,
as provided in Section 8.07; (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, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or the existence at any
time of any Default 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, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with,
32
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 or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 7.03. Citicorp and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citicorp 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 Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citicorp in its
individual capacity. Citicorp and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from 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 Citicorp were not
the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose any information obtained or received by it or any
of its Affiliates relating to the Borrower or any of its Subsidiaries to the
extent such information was obtained or received in any capacity other than as
Agent.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 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 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 7.05. Indemnification. (a) The Lenders agree to
indemnify the Agent (to the extent not reimbursed by the Borrower) from and
against such Lender's Ratable Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement
(collectively, the "Indemnified Costs"), provided that no Lender shall be liable
for any portion of the Indemnified Costs resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its Ratable Share
of any out-of-pocket expenses (including counsel fees) incurred by the 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 Agent is not
reimbursed for such expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section
7.05(a) applies whether any such investigation, litigation or proceeding is
brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing
Banks (to the extent not promptly reimbursed by the Borrower) from and against
such Lender's Ratable Share of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against any such Issuing Bank in any way relating to or arising out of
this Agreement or any action taken or omitted by such Issuing Bank hereunder or
in connection herewith; provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Issuing Bank's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon
demand for its Ratable Share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section
8.04, to the extent that such Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrower.
(c) The failure of any Lender to reimburse the Agent promptly
upon demand for its ratable share of any amount required to be paid by the
Lenders to the Agent as provided herein shall not relieve any other Lender of
its obligation hereunder to reimburse the Agent for its ratable share of such
amount, but no Lender shall be responsible for the failure of any other Lender
to reimburse the Agent or an Issuing Bank for such other Lender's Ratable Share
of such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder,
33
the agreement and obligations of each Lender contained in this Section 7.05
shall survive the payment in full of principal, interest and all other amounts
payable hereunder and under the Notes.
SECTION 7.06. Successor Agent. The 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 Agent with the consent, so long as no Event of Default has occurred
and is continuing, of the Borrower, which consent shall not be unreasonably
withheld or delayed. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be 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 $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 7.07. Other Agents. Each Lender hereby acknowledges
that neither the documentation agent nor any other Lender designated as any
"Agent" on the signature pages hereof has any liability hereunder other than in
its capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the 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 3.01, (b) other than as
provided in Section 2.18, increase the Commitments of the Lenders, (c) reduce
the principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of principal of,
or interest on, the Advances or any fees or other amounts payable hereunder, (e)
change the percentage of the Revolving Credit Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder or (f)
amend this Section 8.01; and provided further that (x) no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this Agreement or any Note and (y) no amendment, waiver or consent
shall, unless in writing and signed by the Issuing Banks in addition to the
Lenders required above to take such action, adversely affect the rights or
obligations of the Issuing Banks under this Agreement.
SECTION 8.02. Notices, Etc. (a) All notices and other
communications provided for hereunder shall be either (x) in writing (including
telecopier, telegraphic or telex communication) and mailed, telecopied,
telegraphed, telexed or delivered or (y) as and to the extent set forth in
Section 8.02(b) and in the proviso to this Section 8.02(a), if to the Borrower,
at its address at 500 West Monroe Street, Chicago, Illinois 60661, Attention:
Treasurer; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Agent, at its
address at Two Penns Way, New Castle, Delaware 19720, Attention: Bank Loan
Syndications Department; or, as to the Borrower or the Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent,
provided that materials required to be delivered pursuant to Section 5.01(a)
shall be delivered to the Agent as specified in Section 8.02(b) or as otherwise
specified to the Borrower by the Agent. All such notices and communications
shall, when mailed, telecopied, telegraphed or e-mailed, be effective when
deposited in the mails, telecopied, delivered to the telegraph company or
confirmed by e-mail, respectively, except that notices and
34
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
(b) So long as Citicorp or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Section 5.01(a) shall be
delivered to the Agent in an electronic medium in a format reasonably acceptable
to the Agent and the Lenders by e-mail at oploanswebadmin@citigroup.com and
shall deliver in written form such materials to any Lender that so requests in
writing. The Borrower agrees that the Agent may make such materials, as well as
any other written information, documents, instruments and other material
relating to the Borrower, any of its Subsidiaries or any other materials or
matters relating to this Agreement, the Notes or any of the transactions
contemplated hereby (collectively, the "Communications") available to the
Lenders by posting such notices on Intralinks, "e-Disclosure", the Agent's
internet delivery system that is part of Fixed Income Direct, Global Fixed
Income's primary web portal, or a substantially similar electronic system (the
"Platform"). The Borrower acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the Agent nor
any of its Affiliates warrants the accuracy, adequacy or completeness of the
Communications or the Platform and each expressly disclaims liability for errors
or omissions in the Communications or the Platform. No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the Agent
or any of its Affiliates in connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the
next sentence) (a "Notice") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this Agreement;
provided that if requested by any Lender the Agent shall deliver a copy of the
Communications to such Lender by email or telecopier. Each Lender agrees (i) to
notify the Agent in writing of such Lender's e-mail address to which a Notice
may be sent by electronic transmission (including by electronic communication)
on or before the date such Lender becomes a party to this Agreement (and from
time to time thereafter to ensure that the Agent has on record an effective
e-mail address for such Lender) and (ii) that any Notice may be sent to such
e-mail address.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the 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 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all reasonable costs and expenses of the Agent in connection with
the preparation, execution, delivery, administration, modification and amendment
of this Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all reasonable due diligence, syndication
(including printing, distribution and bank meetings), transportation and
duplication expenses and (B) the reasonable fees and expenses of counsel for the
Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under this Agreement. The Borrower further agrees to
pay on demand all costs and expenses of the Agent and the Lenders, if any
(including, without limitation, reasonable 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 fees and expenses
of counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Agent and 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)
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the
35
Advances or (ii) the actual or alleged presence of Hazardous Materials on any
property of the Borrower or any of its Subsidiaries or any Environmental
Liability relating in any way to the Borrower or any of its Subsidiaries, except
to the extent such claim, damage, loss, liability or expense resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower also agrees not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, and the Lenders and the Agent agree not to assert any such claim
against the Borrower, on any theory of liability, arising out of or otherwise
relating to the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason, or by an Eligible Assignee to a Lender other than on the last
day of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 8.07(a), the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (excluding loss of anticipated profits (including the Applicable Margin)),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.11, 2.14 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. 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 6.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender or such Affiliate 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 the 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, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender and its Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the 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 8.07. Assignments and Participations. (a) Each Lender
may and, if demanded by the Borrower (following a demand by such Lender pursuant
to Section 2.11 or 2.14 or a suspension of Eurodollar Rate Advances pursuant to
Section 2.12 and only if no Event of Default has occurred and is continuing)
upon at least five Business Days' notice to such Lender and the Agent, will
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Revolving Credit
36
Commitment, its undrawn Letter of Credit Commitment, the Advances owing to it,
its participations in Letters of Credit and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under this Agreement, (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of (x) the Revolving Credit
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) the undrawn Letter of
Credit Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the applicable Assignment and
Acceptance) shall in no event be less than $1,000,000, unless, in each case, the
Borrower and the Agent otherwise agree, (iii) each such assignment shall be to
an Eligible Assignee, (iv) each such assignment made as a result of a demand by
the Borrower pursuant to this Section 8.07(a) shall be arranged by the Borrower
after consultation with the Agent and shall be either an assignment of all of
the rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall
have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
$3,500 payable by the parties to each such assignment, provided, however, that
no such recordation fee shall be payable in the case of an assignment made at
the request of the Borrower. 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, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than its rights under
Sections 2.11, 2.14 and 8.04 to the extent any claim thereunder relates to an
event arising prior to such assignment) and be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto).
(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, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, 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 4.01 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 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 Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
37
(c) 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 Note or Notes subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assumption Agreement and each Assignment and
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 Advances 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 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 Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than the Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and any Note or Notes held by it); provided, however, that (i) such Lender's
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 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 and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Borrower Information relating to the
Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or 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 8.08. Confidentiality. Neither the Agent nor any
Lender may disclose to any Person any confidential, proprietary or non-public
information of the Borrower furnished to the Agent or the Lenders by the
Borrower (such information being referred to collectively herein as the
"Borrower Information"), except that each of the Agent and each of the Lenders
may disclose Borrower Information (i) to its and its affiliates' employees,
officers, directors, agents and advisors (it being understood that the Persons
to whom such disclosure is made will be informed of the confidential nature of
such Borrower Information and instructed to keep such Borrower Information
confidential on substantially the same terms as provided herein), (ii) to the
extent requested by any regulatory authority, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iv)
to any other party to this Agreement, (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this Section 8.08, to any assignee
or participant or prospective assignee or participant, (vii) to the extent such
Borrower Information (A) is or becomes generally available to the public on a
non-confidential basis other than as a result of a breach of this Section 8.08
by the Agent or such Lender, or (B) is or becomes available to the Agent or such
Lender on a nonconfidential basis from a source
38
other than the Borrower and (viii) with the consent of the Borrower.
Notwithstanding anything herein to the contrary, the Agent and the Lenders may
disclose to any and all Persons, without limitation of any kind, the U.S. tax
treatment and tax structure of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are
provided to the Agent or any Lender relating to such U.S. tax treatment and tax
structure.
SECTION 8.09. 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 8.10. 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. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. 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 Notes, 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 court or, to
the extent permitted by law, in such federal court. The Borrower hereby agrees
that service of process in any such action or proceeding brought in the any such
New York State court or in such federal court may be made upon CT Corporation
System at its offices at 111 Eighth Avenue, New York, New York 10011 (the
"Process Agent") and the Borrower hereby irrevocably appoints the Process Agent
its authorized agent to accept such service of process, and agrees that the
failure of the Process Agent to give any notice of any such service shall not
impair or affect the validity of such service or of any judgment rendered in any
action or proceeding based thereon. The Borrower hereby further irrevocably
consents to the service of process in any action or proceeding in such courts by
the mailing thereof by any parties hereto by registered or certified mail,
postage prepaid, to the Borrower at its address specified pursuant to Section
8.02. 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 Notes 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 Notes
in any New York State or federal court. Each of the 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 8.12. No Liability of the Issuing Banks. 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
an Issuing Bank nor any of its 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 such 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 such Issuing Bank, and such Issuing Bank
shall be liable to the Borrower, to the extent of any direct, but not
consequential damages suffered by the Borrower that the Borrower proves were
caused by (i) such 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) such 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, such
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation.
39
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
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 this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
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.
GATX FINANCIAL CORPORATION
By
-----------------------------------
Title:
CITICORP USA, INC.,
as Agent
By
-----------------------------------
Title:
Initial Lenders
Letter of Credit Commitment
$13,000,000 CITIBANK, N.A.
By
-----------------------------------
Title:
$22,000,000 THE BANK OF NEW YORK
By
-----------------------------------
Title:
$35,000,000 Total of the Letter of
Credit Commitments
Revolving Credit Commitment
$37,000,000 CITICORP USA, INC.
By
-----------------------------------
Title:
$37,000,000 JPMORGAN CHASE BANK
By
-----------------------------------
Title:
40
$20,000,000 BMO NESBITT BURNS FINANCING, INC.
By
-----------------------------------
Title:
$15,000,000 THE BANK OF NEW YORK
By
-----------------------------------
Title:
$11,000,000 DEUTSCHE BANK AG, NEW YORK BRANCH
By
-----------------------------------
Title:
By
-----------------------------------
Title:
$120,000,000 Total of the Revolving
Credit Commitments
41
SCHEDULE I
GATX FINANCIAL CORPORATION
THREE YEAR CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
<Table>
<Caption>
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
- ---------------------- ----------------------- -------------------------
BMO Nesbitt Burns Financing, Inc. 115 S. LaSalle Street, 17W 115 S. LaSalle Street, 17W
Chicago, IL 60605 Chicago, IL 60605
Attn: Betty Rutherford Attn: Betty Rutherford
T: 312 750-3885 T: 312 750-3885
F: 312 750-4345 F: 312 750-4345
The Bank of New York One Wall Street One Wall Street
New York, NY 10286 New York, NY 10286
Attn: Kathy D'Elena Attn: Kathy D'Elena
T: 212 635-6691 T: 212 635-6691
F: 212 635-7923 F: 212 635-7923
Citicorp USA, Inc. Two Penns Way Two Penns Way
New Castle, DE 19720 New Castle, DE 19720
Attn: David Graber Attn: David Graber
T: 302 894-6034 T: 302 894-6034
F: 212 994-0961 F: 212 994-0961
Deutsche Bank AG, New York 31 West 52nd Street 31 West 52nd Street
Branch New York, NY 10019 New York, NY 10019
Attn: Esther Ocampo Attn: Esther Ocampo
T: 213 620-8241 T: 213 620-8241
F: 213 620-8293 F: 213 620-8293
JPMorgan Chase Bank 111 Fannin Avenue, 10th Floor 111 Fannin Avenue, 10th Floor
Houston, TX 77002 Houston, TX 77002
Attn: Cymbeline Forde Attn: Cymbeline Forde
T: 713 750-7911 T: 713 750-7911
F: 713 750-2938 F: 713 750-2938
</Table>
SCHEDULE 2.01(b)
Existing Letters of Credit
<Table>
<Caption>
ISSUER GUARANTEED PARTY/BENEFICIARY AMOUNT EXPIRY
GATX:
The Bank of New York Trail, LTD $ 1,000,000 11/30/03
L/C No. 43602
The Bank of New York Trail, LTD $ 2,523,950 12/31/03
L/C No. 35322
The Bank of New York Travelers Ins. Co. $ 164,672 12/31/03
L/C No. 35210
The Bank of New York Northwestern National $ 100,000 03/31/04
L/C No. 17115
The Bank of New York Royal Insurance Co. $ 386,000 10/01/03
L/C No. 14703
The Bank of New York CIGNA Insurance Co. $ 13,571,259 12/31/03
L/C No. 18448
The Bank of New York SRI Monroe Street Venture, LLC $ 1,510,275 12/31/03
L/C No. 43600
The Bank of New York Kemper Insurance Company $ 2,021,000 10/01/03
L/C No. 45090
GATX Rail:
The Bank of New York Safeco Insurance Co $ 45,000 11/30/03
------------
L/C No. 31582
$ 21,322,156
============
Citibank, N.A. Kemper Insurance Company $ 4,088,000 10/01/03
L/C No. NY-668-30033706
$ 4,088,000
============
</Table>
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, GATX FINANCIAL
CORPORATION, a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Revolving Credit Commitment in figures] or, if less, the aggregate principal
amount of the Advances made by the Lender to the Borrower pursuant to the Three
Year Credit Agreement dated as of June 16, 2003 among the Borrower, the Lender
and certain other lenders parties thereto, and Citicorp USA, Inc. as Agent for
the Lender and such other lenders (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citicorp, as Agent, at 388 Greenwich Street, New
York, New York 10013, in same day funds. Each Advance owing to the Lender by the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
GATX FINANCIAL CORPORATION
By
-----------------------------
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
<Table>
<Caption>
AMOUNT OF
AMOUNT OF PRINCIPAL PAID UNPAID PRINCIPAL NOTATION
DATE ADVANCE OR PREPAID BALANCE MADE BY
- ---- --------- -------------- ---------------- --------
</Table>
2
EXHIBIT B - FORM OF NOTICE OF
BORROWING
Citicorp USA, Inc., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, GATX Financial Corporation, refers to the
Three Year Credit Agreement, dated as of June 16, 2003 (as amended or modified
from time to time, the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, certain Lenders parties
thereto and Citicorp USA, Inc., as Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the "
Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, 200_.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is _____ [week[s]]
[month[s]].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement (except the representations set forth in
subsection (d)(ii) thereof and in subsection (f) thereof) are correct,
before and after giving effect to the Proposed Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date;
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default; and
(C) after giving effect to the Proposed Borrowing, the
Indenture Limit, calculated using the Borrower's most recent available
information, exceeds the aggregate principal amount of the Advances
plus the Available Amount of the outstanding Letters of Credit, as set
forth on the attached Schedule I.
Very truly yours,
GATX FINANCIAL CORPORATION
By
-----------------------------
Title:
SCHEDULE I - INDENTURE LIMIT CALCULATION
(Thousands)
Tangible Assets
Current Liabilities
Net Tangible Assets
30% of Net Tangible Assets
Less: Purchase Money Liens
Other Liens
Maximum of Additional Secured Indebtedness under Scn 10.6 (3) of D Indenture
MINUS:
Medium Term Notes - Series B
Medium Term Notes - Series C
BLB - October 16, 1998 Term Loan
BLB - April 9, 2001 Term Loan
INDENTURE LIMIT
AGGREGATE ADVANCES AND LOC's UNDER FACILITY
EXCESS OF INDENTURE LIMIT OVER ADVANCES AND LOC's
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Three Year Credit Agreement dated as
of June 16, 2003 (as amended or modified from time to time, the "Credit
Agreement") among GA TX FINANCIAL CORPORATION, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement) and Citicorp USA,
Inc., as agent for the Lenders (the "Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof equal to the percentage interest specified on Schedule 1 hereto of
all outstanding rights and obligations under the Credit Agreement together with
participations in Letters of Credit held by the Assignor on the date hereof.
After giving effect to such sale and assignment, the Assignee's Revolving Credit
Commitment and the amount of the Advances owing to the Assignee will be as set
forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with, the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) 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 the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note[, if any] held by the Assignor [and requests that the
Agent exchange such Note for a new Note payable to the order of [the Assignee in
an amount equal to the Revolving Credit Commitment assumed by the Assignee
pursuant hereto or new Notes payable to the order of the Assignee in an amount
equal to the Revolving Credit Commitment assumed by the Assignee pursuant hereto
and] the Assignor in an amount equal to the Revolving Credit Commitment retained
by the Assignor under the Credit Agreement, [respectively,] as specified on
Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor 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
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service forms required under Section 2.14 of
the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest and facility fees with
respect thereto) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the Notes for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
<Table>
Percentage interest assigned: %
------
Assignee's Revolving Credit Commitment: $
------
Aggregate outstanding principal amount of Advances assigned: $
------
Principal amount of Note payable to Assignee: $
------
Principal amount of Note payable to Assignor: $
------
Effective Date*:_______________________, 200_
</Table>
[NAME OF ASSIGNOR], as Assignor
By
---------------------------------
Title:
Dated:_______________________, 200_
[NAME OF ASSIGNEE], as Assignee
By
---------------------------------
Title:
Dated:_______________________, 200_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
- ----------
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
3
Accepted [and Approved]** this
__________ day of _______________, 200_
CITICORP USA, INC., as Agent
By
-------------------------------------
Title:
[Approved this __________ day
of _______________, 200_
GATX FINANCIAL CORPORATION
By ]*
-------------------------------------
Title:
- ----------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
4
EXHIBIT D - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
[Effective Date]
To the Lenders parties to the
Credit Agreement referred to below and
Citicorp USA, Inc., as Agent
388 Greenwich Street
New York, NY 10013
Ladies and Gentlemen:
I have acted as counsel to GATX Financial Corporation, a Delaware corporation
(the "Company") in connection with the Three Year Credit Agreement dated as of
the date hereof (the "Credit Agreement") among the Company, the Lenders as
defined in the Credit Agreement, and Citicorp USA, Inc., as Administrative
Agent.
In my capacity as such counsel, I or other attorneys of the Company have
examined the Credit Agreement, as well as originals, or copies certified or
otherwise identified to my satisfaction, of such other records and documents as
I have deemed necessary as a basis for the opinions expressed below. In such
examination, I have assumed the genuineness of all documents submitted to me as
originals, and the conformity to the originals of all documents submitted to me
as copies.
Based upon the foregoing, it is my opinion that:
(a) The Company is duly organized, validly existing and
in good standing under the laws of the State of
Delaware.
(b) The Credit Agreement and all certificates, documents,
instruments, and agreements delivered under or in
connection with the Credit Agreement, (i) have been
properly authorized by all necessary corporate
action, (ii) do not require the approval of any
holder of shares, stocks, bonds, debentures or other
securities outstanding under any agreement, indenture
or other instrument to which the Company is a party
or by which the Company or its property may be
charged or affected and (iii) have been duly executed
and delivered on behalf of the Company;
(c) The execution and delivery of the Credit Agreement
and all certificates, documents, instruments, and
agreements delivered under or in connection with the
Credit Agreement, or the fulfillment of their
respective terms, conditions, and provisions, or the
consummation of the transactions contemplated by the
Agreements are within the Company's corporate powers
and do not and will not (i) constitute a breach of
any existing and outstanding contractual or other
obligation of the Company, (ii) violate any provision
of the charter or by-laws of the Company, (iii)
require the approval or the giving of prior notice to
any government, government agency, ministry, bureau
or commission, whether domestic or foreign, (iv)
constitute a default under or contravene any
provisions of any agreement, indenture or other
instrument to which the Company is a party or by
which the Company or its property may be charged or
affected, (v) violate any judgment, order,
injunction, decree or award of any court,
administrative agency or governmental body against,
or binding upon, the Company or (vi) constitute a
violation by the Company of any law, order or
regulation applicable to the Company; and
(d) If the Credit Agreement were to be governed by the
law of the State of Illinois, the Credit Agreement
and all certificates, documents, instruments, and
agreements delivered under or in connection with the
Credit Agreement, would constitute legal, valid and
binding obligations of the Company, and are
enforceable in accordance with their respective
provisions, subject to
(i) the application of general principles of equity
(regardless of whether considered in a proceeding in
equity or at law), including, without limitation, (x)
the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and
(y) concepts of materiality, reasonableness, good
faith and fair dealing, and (ii) all applicable
bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws, decrees or
regulations affecting the enforcement of creditor's
rights generally.
(e) To the best of my knowledge, there are no pending or
overtly threatened actions or proceedings against the
Company or any of its Subsidiaries before any court,
governmental agency or arbitrator that purport to
affect the legality, validity, binding effect or
enforceability of the Credit Agreement or the
consummation of the transactions contemplated thereby
or, except the Disclosed Litigation, that are likely
to have a materially adverse effect upon the
financial condition or operations of the Company or
any of its Subsidiaries.
(f) I express no opinion as to whether a Federal or state
court outside the State of New York would give effect
to the choice of new York law provided for in the
Credit Agreement.
I am licensed to practice in the State of Illinois. I express no opinion on the
law of any other jurisdiction other than law of the State of Illinois, the
General Corporation law of the state of Delaware and the federal laws of the
United States.
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