EXHIBIT 99.2
CONFORMED COPY
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$2,900,000,000
THREE YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT AGREEMENT
Dated as of December 10, 2002
among
CENDANT CORPORATION,
as Borrower
THE LENDERS REFERRED TO HEREIN
JPMORGAN CHASE BANK,
as Administrative Agent
BANK OF AMERICA, N.A.,
as Syndication Agent
and
THE BANK OF NOVA SCOTIA,
CITIBANK, N.A. and
BARCLAYS BANK PLC,
as Co-Documentation Agents
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
PAGE
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1. DEFINITIONS.............................................................................................1
2. THE LOANS..............................................................................................22
SECTION 2.1. Commitments..............................................................................22
SECTION 2.2. Loans. 22
SECTION 2.3. Use of Proceeds..........................................................................23
SECTION 2.4. Competitive Bid Procedure................................................................24
SECTION 2.5. Revolving Credit Borrowing Procedure.....................................................26
SECTION 2.6. Refinancings.............................................................................26
SECTION 2.7. Fees.....................................................................................27
SECTION 2.8. Repayment of Loans; Evidence of Debt.....................................................28
SECTION 2.9. Interest on Loans........................................................................29
SECTION 2.10. Interest on Overdue Amounts..............................................................29
SECTION 2.11. Alternate Rate of Interest...............................................................30
SECTION 2.12. Termination and Reduction of Commitments; Increase of Commitments........................30
SECTION 2.13. Prepayment of Loans......................................................................31
SECTION 2.14. Eurodollar Reserve Costs.................................................................32
SECTION 2.15. Reserve Requirements; Change in Circumstances............................................32
SECTION 2.16. Change in Legality.......................................................................34
SECTION 2.17. Reimbursement of Lenders.................................................................35
SECTION 2.18. Pro Rata Treatment.......................................................................36
SECTION 2.19. Right of Setoff..........................................................................36
SECTION 2.20. Manner of Payments.......................................................................36
SECTION 2.21. Taxes. 37
SECTION 2.22. Certain Pricing Adjustments..............................................................39
SECTION 2.23. Letters of Credit........................................................................39
3. REPRESENTATIONS AND WARRANTIES OF BORROWER.............................................................45
SECTION 3.1. Corporate Existence and Power............................................................45
SECTION 3.2. Corporate Authority, No Violation and Compliance with Law................................46
SECTION 3.3. Governmental and Other Approval and Consents.............................................46
SECTION 3.4. Financial Statements of Borrower.........................................................46
SECTION 3.5. No Material Adverse Change...............................................................46
SECTION 3.6. [Reserved]...............................................................................47
SECTION 3.7. Copyrights, Patents and Other Rights.....................................................47
SECTION 3.8. Title to Properties......................................................................47
SECTION 3.9. Litigation...............................................................................47
SECTION 3.10. Federal Reserve Regulations..............................................................47
SECTION 3.11. Investment Company Act...................................................................47
SECTION 3.12. Enforceability...........................................................................48
SECTION 3.13. Taxes....................................................................................48
SECTION 3.14. Compliance with ERISA....................................................................48
SECTION 3.15. Disclosure...............................................................................48
SECTION 3.16. Environmental Liabilities................................................................49
4. CONDITIONS OF LENDING..................................................................................49
SECTION 4.1. Conditions Precedent to Closing..........................................................49
SECTION 4.2. Conditions Precedent to Each Extension of Credit.........................................50
5. AFFIRMATIVE COVENANTS..................................................................................51
SECTION 5.1. Financial Statements, Reports, etc.......................................................51
SECTION 5.2. Corporate Existence; Compliance with Statutes............................................53
SECTION 5.3. Insurance................................................................................53
SECTION 5.4. Taxes and Charges........................................................................53
SECTION 5.5. ERISA Compliance and Reports.............................................................54
SECTION 5.6. Maintenance of and Access to Books and Records; Examinations.............................54
SECTION 5.7. Maintenance of Properties................................................................54
SECTION 5.8. Changes in Character of Business.........................................................54
6. NEGATIVE COVENANTS.....................................................................................54
SECTION 6.1. Limitation on Indebtedness...............................................................55
SECTION 6.2. Consolidation, Merger, Sale of Assets....................................................56
SECTION 6.3. Limitations on Liens.....................................................................57
SECTION 6.4. Sale and Leaseback.......................................................................58
SECTION 6.5. Debt to Capitalization Ratio.............................................................58
SECTION 6.6. Interest Coverage Ratio..................................................................58
SECTION 6.7. Accounting Practices.....................................................................58
7. EVENTS OF DEFAULT......................................................................................59
8. THE ADMINISTRATIVE AGENT AND EACH ISSUING LENDER.......................................................61
SECTION 8.1. Administration by Administrative Agent...................................................61
SECTION 8.2. Advances and Payments....................................................................62
SECTION 8.3. Sharing of Setoffs and Cash Collateral...................................................62
SECTION 8.4. Notice to the Lenders....................................................................63
SECTION 8.5. Liability of Administrative Agent and each Issuing Lender................................63
SECTION 8.6. Reimbursement and Indemnification........................................................64
SECTION 8.7. Rights of Administrative Agent...........................................................64
SECTION 8.8. Independent Investigation by Lenders.....................................................65
SECTION 8.9. Notice of Transfer.......................................................................65
SECTION 8.10. Successor Administrative Agent...........................................................65
SECTION 8.11. Resignation of an Issuing Lender.........................................................65
SECTION 8.12. Agents Generally.........................................................................66
9. MISCELLANEOUS..........................................................................................66
SECTION 9.1. Notices. 66
SECTION 9.2. Survival of Agreement, Representations and Warranties, etc...............................67
SECTION 9.3. Successors and Assigns; Syndications; Loan Sales; Participations.........................67
SECTION 9.4. Expenses; Documentary Taxes..............................................................71
SECTION 9.5. Indemnity................................................................................72
SECTION 9.6. CHOICE OF LAW............................................................................72
SECTION 9.7. No Waiver................................................................................72
SECTION 9.8. Extension of Maturity....................................................................73
SECTION 9.9. Amendments, etc..........................................................................73
SECTION 9.10. Severability.............................................................................73
SECTION 9.11. SERVICE OF PROCESS; WAIVER OF JURY TRIAL.................................................73
SECTION 9.12. Headings.................................................................................75
SECTION 9.13. Execution in Counterparts................................................................75
SECTION 9.14. Entire Agreement.........................................................................75
SECTION 9.15. Confidentiality..........................................................................75
SECTION 9.16. Delivery of Addenda......................................................................76
SCHEDULES
2.1 Commitments
2.23 Existing Letters of Credit
6.1 Existing Indebtedness
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Competitive Note
B-1 Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
B-2 Cendant In-House Opinion
C Form of Assignment and Acceptance
D Form of Officer's Certificate
E-1 Form of Competitive Bid Request
E-2 Form of Competitive Bid Invitation
E-3 Form of Competitive Bid
E-4 Form of Competitive Bid Accept/Reject Letter
F Form of Revolving Credit Borrowing Request
G Form of Addendum
H Form of New Lender Supplement
I Form of Commitment Increase Supplement
THREE YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT AGREEMENT
(the "AGREEMENT") dated as of December 10, 2002, among CENDANT CORPORATION, a
Delaware corporation (the "BORROWER"), the lenders referred to herein (the
"LENDERS"), BANK OF AMERICA, N.A., as syndication agent (the "SYNDICATION
AGENT"), THE BANK OF NOVA SCOTIA, CITIBANK N.A. and BARCLAYS BANK PLC, as
co-documentation agents (the "CO-DOCUMENTATION AGENTS"), and JPMORGAN CHASE
BANK, a New York banking corporation, as administrative agent (the
"ADMINISTRATIVE AGENT"; together with the Syndication Agent and the
Co-Documentation Agents, the "AGENTS") for the Lenders.
INTRODUCTORY STATEMENT
The Borrower has requested that the Lenders establish a
$2,900,000,000 committed revolving credit facility pursuant to which Revolving
Credit Loans may be made to, and Letters of Credit issued for the account of,
the Borrower (of which not more than the amounts described herein at any time
shall consist of Letters of Credit).
Subject to the terms and conditions set forth herein, the
Administrative Agent is willing to act as agent for the Lenders, and each Lender
is willing to make Loans to the Borrower and to participate in Letters of
Credit.
Accordingly, the parties hereto hereby agree as follows:
1. DEFINITIONS
For the purposes hereof unless the context otherwise requires,
the following terms shall have the meanings indicated, all accounting terms not
otherwise defined herein shall have the respective meanings accorded to them
under GAAP and all terms defined in the New York Uniform Commercial Code and not
otherwise defined herein shall have the respective meanings accorded to them
therein:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to the Alternate Base Rate
in accordance with the provisions of Section 2.
"ADDENDUM" shall mean an instrument, substantially in the form
of Exhibit G hereto, by which a Lender becomes a party to this
Agreement.
"AESOP FINANCING PROGRAM" means the transactions contemplated
by that certain Amended and Restated Base Indenture, dated as of July
30, 1997, between AESOP Funding II L.L.C., as issuer, and the Bank of
New York, as Trustee, as it may be from time to time further amended,
supplemented or modified, and the instruments and agreements referenced
therein and otherwise executed in connection therewith.
"AFFILIATE" shall mean any Person, which, directly or
indirectly, is in control of, is controlled by, or is under common
control with, the Borrower. For purposes of this definition, a Person
shall be deemed to be "controlled by" another if such latter Person
possesses, directly or indirectly, power either to (i) vote 10% or more
of the securities having ordinary voting power for the election of
directors of such controlled Person or (ii) direct or cause the
direction of the management and policies of such controlled Person
whether by contract or otherwise.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per
annum (rounded upwards to the nearest 1/16 of 1% if not already an
integral multiple of 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect for such day, (b) the Federal Funds Effective Rate in
effect for such day plus 1/2 of 1% or (c) the Base CD Rate in effect
for such day plus 1%. For purposes hereof, "PRIME RATE" shall mean the
rate per annum publicly announced by the Administrative Agent from time
to time as its prime rate in effect at its principal office in New York
City. For purposes of this Agreement, any change in the Alternate Base
Rate due to a change in the Prime Rate shall be effective on the date
such change in the Prime Rate is publicly announced as effective.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, 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 on the succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it. "BASE CD RATE" shall mean the sum of (a) the
product of (i) the Average Weekly Three-Month Secondary CD Rate times
(ii) a fraction of which the numerator is 100% and the denominator is
100% minus the aggregate rates of (A) basic and supplemental reserve
requirements in effect on the date of effectiveness of such Average
Weekly Three-Month Secondary CD Rate, as set forth below, under
Regulation D of the Board applicable to certificates of deposit in
units of $100,000 or more issued by a "member bank" located in a
"reserve city" (as such terms are used in Regulation D) and (B)
marginal reserve requirements in effect on such date of effectiveness
under Regulation D applicable to time deposits of a "member bank" and
(b) the Assessment Rate. "AVERAGE WEEKLY THREE-MONTH SECONDARY CD RATE"
shall mean the three-month secondary certificate of deposit ("CD") rate
for the most recent weekly period covered therein in the Federal
Reserve Statistical release entitled "Weekly Summary of Lending and
Credit Measures (Averages of daily figures)" released in the week
during which occurs the day for which the CD rate is being determined.
The CD rate so reported shall be in effect, for the purposes of this
definition, for each day of the week in which the release date of such
publication occurs. If such publication or a substitute containing the
foregoing rate information is not published by the Federal Reserve for
any week, such average rate shall be determined by the Administrative
Agent on the basis of quotations received by it from three New York
City negotiable certificate of deposit dealers of recognized standing
on the first Business Day of the week succeeding such week for which
such rate information is not published. If for any reason the
Administrative Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable to ascertain the
Base CD Rate or Federal Funds Effective Rate, or both, for any reason,
including, without limitation, the inability or failure of the
Administrative Agent to obtain sufficient bids or publications in
accordance with the terms hereof, the Alternate Base Rate shall be
determined without regard to clause (b) or (c), or both, until the
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circumstances giving rise to such inability no longer exist. Any change
in the Alternate Base Rate due to a change in the Average Weekly
Three-Month Secondary CD Rate shall be effective on the effective date
of such change in the CD Rate. Any change in the Alternate Base Rate
due to a change in the Federal Funds Effective Rate shall be effective
on the effective date of such change in the Federal Funds Effective
Rate.
"APPLICABLE LAW" shall mean, with respect to any Person, all
provisions of statutes, rules, regulations and orders of governmental
bodies or regulatory agencies applicable to such Person, and all orders
and decrees of all courts and arbitrators in proceedings or actions in
which the Person in question is a party or is subject.
"ASSESSMENT RATE" shall mean, for any day, the net annual
assessment rate (rounded upwards, if necessary, to the next higher
Basis Point) as most recently estimated by the Administrative Agent for
determining the then current annual assessment payable by the
Administrative Agent to the Federal Deposit Insurance Corporation (or
any successor) for insurance by such Corporation (or such successor) of
time deposits made in dollars at the Administrative Agent's domestic
offices.
"ASSIGNMENT AND ACCEPTANCE" shall mean an agreement in the
form of Exhibit C hereto, executed by the assignor, assignee and the
other parties as contemplated thereby.
"AVIS" shall mean Avis Group Holdings, Inc., a Delaware
corporation.
"AVIS DEBT DOCUMENTS" shall mean the instruments and
agreements pursuant to which any indebtedness of Avis or any of its
Subsidiaries has been issued, is outstanding or permitted to exist.
"AVIS MERGER" shall mean the transaction pursuant to the
Agreement and Plan of Merger, dated as of November 11, 2000 (the
"MERGER AGREEMENT"), by and among Avis, the Borrower, PHH and Avis
Acquisition Corp., a Delaware corporation and an indirect wholly-owned
subsidiary of the Borrower ("MERGER SUB") in which Merger Sub merged
with and into Avis and each outstanding share of class A common stock,
par value $.01 per share of Avis (the "COMMON STOCK"), other than
shares of Common Stock held by any subsidiary of Avis, held in Avis'
treasury, held by Cendant or any subsidiary of Cendant or held by
stockholders who perfected their appraisal rights under Delaware law,
was converted into the right to receive $33.00 in cash.
"BASIS POINT" shall mean 1/100th of 1%.
"BOARD" shall mean the Board of Governors of the Federal
Reserve System.
"BORROWING" shall mean a group of Loans of a single Interest
Rate Type made by the Lenders (or in the case of a Competitive
Borrowing, by the Lender or Lenders whose Competitive Bids have been
accepted pursuant to Section 2.4) on a single date and as to which a
single Interest Period is in effect.
"BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or other day on which banks in the State of New York are
permitted to close; PROVIDED, HOWEVER, that
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when used in connection with a LIBOR Loan, the term "Business Day"
shall also exclude any day on which banks are not open for dealings in
Dollar deposits on the London Interbank Market.
"CAPITAL LEASE" shall mean as applied to any Person, any lease
of any property (whether real, personal or mixed) by that Person as
lessee which, in accordance with GAAP, is or should be accounted for as
a capital lease on the balance sheet of that Person.
"CASH COLLATERAL ACCOUNT" shall mean a collateral account
established with the Administrative Agent, in the name of the
Administrative Agent and under its sole dominion and control, into
which the Borrower shall from time to time deposit Dollars pursuant to
the express provisions of this Agreement requiring such deposit.
"CASH EQUIVALENTS" shall mean any of the following, to the
extent acquired for investment and not with a view to achieving trading
profits: (i) obligations fully backed by the full faith and credit of
the United States of America maturing not in excess of twelve months
from the date of acquisition, (ii) commercial paper maturing not in
excess of twelve months from the date of acquisition and rated "P-1" by
▇▇▇▇▇'▇ or "A-1" by S&P on the date of such acquisition, (iii) the
following obligations of any Lender or any domestic commercial bank
having capital and surplus in excess of $500,000,000, which has, or the
holding company of which has, a commercial paper rating meeting the
requirements specified in clause (ii) above: (a) time deposits,
certificates of deposit and acceptances maturing not in excess of
twelve months from the date of acquisition, or (b) repurchase
obligations with a term of not more than thirty (30) days for
underlying securities of the type referred to in clause (i) above, (iv)
money market funds that invest exclusively in interest bearing,
short-term money market instruments: (a) having an average remaining
maturity of not more than twelve months and (b)(1) rated at least "P-1"
by ▇▇▇▇▇'▇ or "A-1" by S&P or (2) which are issued or directly and
fully guaranteed or insured by the United States government or any
agency or instrumentality thereof, and (v) municipal securities: (a)
for which the pricing period in effect is not more than twelve months
long and (b) rated at least "P-1" by ▇▇▇▇▇'▇ or "A-1" by S&P.
"CHANGE IN CONTROL" shall mean (i) the acquisition 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 Closing Date), directly or indirectly, beneficially
or of record, of ownership or control of in excess of 30% of the voting
common stock of the Borrower on a fully diluted basis at any time or
(ii) if at any time, individuals who at the Closing Date constituted
the Board of Directors of the Borrower (together with any new directors
whose election by such Board of Directors or whose nomination for
election by the shareholders of the Borrower, as the case may be, was
approved by a vote of the majority of the directors then still in
office who were either directors at the Closing Date or whose election
or a nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Borrower then in office.
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"CLOSING DATE" shall mean the date on which the conditions
precedent to the effectiveness of this Agreement as set forth in
Section 4.1 have been satisfied or waived, which shall in no event be
later than December 11, 2002.
"CODE" shall mean the Internal Revenue Code of 1986 and the
rules and regulations issued thereunder, as now and hereafter in
effect, or any successor provision thereto.
"COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender as set forth (i) on Schedule 2.1 hereto
and/or (ii) any applicable Assignment and Acceptance to which it may be
a party, as the case may be, as such Lender's Commitment may be
permanently terminated, reduced or increased from time to time pursuant
to Section 2.12 or Section 7. The Commitments shall automatically and
permanently terminate on the earlier of (a) the Maturity Date or (b)
the date of termination in whole pursuant to Section 2.12 or Section 7.
"COMMITMENT INCREASE NOTICE" shall have the meaning assigned
to such term in Section 2.12(d).
"COMMITMENT PERCENTAGE" shall mean, as to any Lender at any
time, the percentage which such Lender's Commitment then constitutes of
the Total Commitment or, at any time after the Commitments shall have
expired or terminated, the percentage which the aggregate principal
amount of such Lender's Loans and pro rata share of L/C Exposure then
outstanding constitutes of the aggregate principal amount of the Loans
and L/C Exposure then outstanding.
"COMPETITIVE BID" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.4 in the form of Exhibit E-3.
"COMPETITIVE BID ACCEPT/REJECT LETTER" shall mean a
notification made by the Borrower pursuant to Section 2.4(d) in the
form of Exhibit E-4.
"COMPETITIVE BID RATE" shall mean, as to any Competitive Bid
made by a Lender pursuant to Section 2.4(b), (a) in the case of a LIBOR
Loan, the Margin and (b) in the case of a Fixed Rate Loan, the fixed
rate of interest offered by the Lender making such Competitive Bid.
"COMPETITIVE BID REQUEST" shall mean a request made pursuant
to Section 2.4 in the form of Exhibit E-1.
"COMPETITIVE BORROWING" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or
Lenders whose Competitive Bids for such Borrowing have been accepted by
the Borrower under the bidding procedure described in Section 2.4.
"COMPETITIVE LOAN" shall mean a Loan from a Lender to the
Borrower pursuant to the bidding procedure described in Section 2.4.
Each Competitive Loan shall be a LIBOR Competitive Loan or a Fixed Rate
Loan.
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"COMPETITIVE NOTE" shall have the meaning assigned to such
term in Section 2.8.
"CONFIDENTIAL INFORMATION" shall have the meaning assigned to
such term in Section 9.15.
"CONSOLIDATED ASSETS" shall mean, at any date of
determination, the total assets of the Borrower and its Consolidated
Subsidiaries determined in accordance with GAAP.
"CONSOLIDATED EBITDA" shall mean, without duplication, for any
period for which such amount is being determined, the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) provision
for taxes based on income, (iii) depreciation expense (excluding any
such expense attributable to depreciation of Eligible Vehicles which
are included in a Qualified Securitization Transaction), (iv)
Consolidated Interest Expense, (v) amortization expense, (vi) other
non-cash items reducing Consolidated Net Income, plus (vii) any cash
contributions by the Borrower and its Subsidiaries during such period
into the Settlement Trust minus (viii) any cash expenditures during
such period to the extent such cash expenditures (x) did not reduce
Consolidated Net Income for such period and (y) were applied against
reserves that constituted non-cash items which reduced Consolidated Net
Income during prior periods, all as determined on a consolidated basis
for the Borrower and its Consolidated Subsidiaries in accordance with
GAAP. Notwithstanding the foregoing, in calculating Consolidated EBITDA
pro forma effect shall be given to each acquisition of a Subsidiary or
any entity acquired in a merger in any relevant period for which the
covenants set forth in Sections 6.5 and 6.6 are being calculated as if
such acquisition had been made on the first day of such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean for any period for
which such amount is being determined, total interest expense paid or
payable in cash (including that properly attributable to Capital Leases
in accordance with GAAP but excluding in any event all capitalized
interest and amortization of debt discount and debt issuance costs) of
the Borrower and its Consolidated Subsidiaries on a consolidated basis
including, without limitation, all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net cash costs (or minus net profits) under
Interest Rate Protection Agreements MINUS, without duplication, any
interest income of the Borrower and its Consolidated Subsidiaries on a
consolidated basis during such period. Notwithstanding the foregoing,
interest expense on any Rental Vehicle Securitization Indebtedness or
any Timeshare Loan Indebtedness shall be deemed not to be included in
Consolidated Interest Expense.
"CONSOLIDATED NET INCOME" shall mean, for any period for which
such amount is being determined, the net income (or loss) of the
Borrower and its Consolidated Subsidiaries during such period
determined on a consolidated basis for such period taken as a single
accounting period in accordance with GAAP, PROVIDED that there shall be
excluded (i) income (loss) of any Person (other than a Consolidated
Subsidiary of the Borrower) in which the Borrower or any of its
Consolidated Subsidiaries has any equity investment or comparable
interest, except to the extent of the amount of dividends or other
distributions actually paid to the Borrower or its Consolidated
Subsidiaries by such Person during such period, (ii) the income of any
Consolidated Subsidiary of the
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Borrower to the extent that the declaration or payment of dividends or
similar distributions by that Consolidated Subsidiary of the income is
not at the time permitted by operation of the terms of its charter, or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Consolidated Subsidiary,
(iii) any extraordinary after-tax gains and (iv) any extraordinary or
unusual pretax losses.
"CONSOLIDATED NET WORTH" shall mean, as of any date of
determination, all items which in conformity with GAAP would be
included under shareholders' equity on a consolidated balance sheet of
the Borrower and its Subsidiaries at such date plus mandatorily
redeemable preferred securities issued by Subsidiaries of the Borrower
(other than PHH and its Subsidiaries) plus 80% of the aggregate amount
outstanding under the Upper DECS which is, at the date as of which
Consolidated Net Worth is to be determined, includable as a liability
on a consolidated balance sheet of the Borrower and its Subsidiaries.
Consolidated Net Worth shall include the Borrower's equity interest in
PHH.
"CONSOLIDATED SUBSIDIARIES" shall mean all Subsidiaries of the
Borrower that are required to be consolidated with the Borrower for
financial reporting purposes in accordance with GAAP.
"CONSOLIDATED TOTAL INDEBTEDNESS" shall mean (i) the total
amount of Indebtedness of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis using GAAP principles
of consolidation, which is, at the dates as of which Consolidated Total
Indebtedness is to be determined, includable as liabilities on a
consolidated balance sheet of the Borrower and its Subsidiaries, plus
(ii) without duplication of any items included in Indebtedness pursuant
to the foregoing clause (i), Indebtedness of others which the Borrower
or any of its Consolidated Subsidiaries has directly or indirectly
assumed or guaranteed (but only to the extent so assumed or guaranteed)
or otherwise provided credit support therefor, including without
limitation, Guaranties; PROVIDED that, for purposes of this definition,
(a) any Rental Vehicle Securitization Indebtedness shall not be deemed
Indebtedness, (b) any Timeshare Loan Indebtedness shall not be deemed
Indebtedness and (c) only 20% of the aggregate amount outstanding under
the Upper DECS which is, at the dates as of which Consolidated Total
Indebtedness is to be determined, includable as a liability on a
consolidated balance sheet of the Borrower and its Subsidiaries, shall
be deemed Indebtedness. In addition, for purposes of this definition,
the amount of Indebtedness at any time shall be reduced (but not to
less than zero) by the amount of Excess Cash.
"DEBT TO CAPITALIZATION RATIO" shall mean at any time the
ratio of (x) Consolidated Total Indebtedness to (y) the sum of (i)
Consolidated Total Indebtedness plus (ii) Consolidated Net Worth.
"DEFAULT" shall mean any event, act or condition, which with
notice or lapse of time, or both, would constitute an Event of Default.
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"DISCLOSED MATTERS" shall mean public filings with the
Securities and Exchange Commission made by the Borrower or any of its
Subsidiaries on Form S-4, Form 8-K, Form 10-Q or Form 10-K, as filed on
or prior to the Closing Date.
"DOLLARS" and "$" shall mean lawful money of the United States
of America.
"ELIGIBLE LEASES" shall mean open-end and closed-end
automobile fleet leases originated by or on behalf of the Borrower or
any of its Subsidiaries, which are of a type customarily eligible for
inclusion in a Qualified Securitization Transaction.
"ELIGIBLE VEHICLES" shall mean the motor vehicle inventory of
the Borrower or any of its Subsidiaries, in each case, whether held for
sale, lease or rental purposes, which are of a type customarily
eligible for inclusion in a Qualified Securitization Transaction.
"ENVIRONMENTAL LAW" shall mean all laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, judgments,
injunctions, notices or requirements 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, including without limitation, the Clean
Water Act also known as the Federal Water Pollution Control Act
("FWPCA") 33 ▇.▇.▇.▇▇. 1251 ET SEQ., the Clean Air Act ("CAA"), 42
▇.▇.▇.▇▇.▇▇. 7401 et SEQ., the Federal Insecticide, Fungicide and
Rodenticide Act ("FIFRA"), 7 ▇.▇.▇.▇▇.▇▇. 136 ET SEQ., the Surface
Mining Control and Reclamation Act ("SMCRA"), 30 ▇.▇.▇.▇▇.▇▇. 1201 ET
SEQ., the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 ▇.▇.▇.▇▇. 9601 ET SEQ., the Superfund
Amendment and Reauthorization Act of 1986 ("▇▇▇▇"), Public Law 99-499,
100 Stat. 1613, the Emergency Planning and Community Right to Know Act
("ECPCRKA"), 42 ▇.▇.▇.▇▇. 11001 ET SEQ., the Resource Conservation and
Recovery Act ("RCRA"), 42 ▇.▇.▇.▇▇. 6901 ET SEQ., the Occupational
Safety and Health Act as amended ("OSHA"), 29 ▇.▇.▇.▇▇. 655 andss. 657,
together, in each case, with any amendment thereto, and the regulations
adopted and publications promulgated thereunder and all substitutions
thereof.
"ENVIRONMENTAL LIABILITIES" shall mean 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" shall mean the Employee Retirement Income Security Act
of 1974, as such Act may be amended from time to time, and the
regulations promulgated thereunder.
8
"ERISA AFFILIATE" shall mean 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" shall mean (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 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.
"EVENT OF DEFAULT" shall have the meaning given such term in
Section 7 hereof.
"EXCESS CASH" shall mean all cash and Cash Equivalents of the
Borrower and its Consolidated Subsidiaries at such time determined on a
consolidated basis in accordance with GAAP in excess of $25,000,000.
"EXCLUDED TAXES" shall mean, with respect to any Lender, or
any other recipient of 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 or net profits by the United
States of America, or by the jurisdiction under the laws of which such
recipient is organized, in which its principal office is located or in
which it is otherwise doing business or in which its applicable Lending
Office is located, (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other jurisdiction
in which the Borrower is located, (c) any withholding tax that is
imposed on amounts payable to such Lender, or any other recipient of
any payment to be made by or on account of any obligation of the
Borrower hereunder, at the time such Lender becomes a party to this
Agreement (or designates a new Lending Office), except to the extent
that such Lender (or its assignor, if any) was entitled, at the time of
designation of new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.21(a), (d) Taxes attributable to such
Lender's failure to comply with Section 2.21(e), and (e) any Taxes
imposed as a result of such Lender's gross negligence or willful
misconduct.
"EXISTING ISSUING LENDER" shall mean any issuer of an Existing
Letter of Credit.
9
"EXISTING LETTERS OF CREDIT" shall mean the letters of credit
described on Schedule 2.23 hereto.
"EXISTING REVOLVING CREDIT AGREEMENT" shall have the meaning
assigned to such term in Section 4.1(h).
"EXISTING SETTLEMENT L/C CREDIT AGREEMENT" shall have the
meaning assigned to such term in Section 4.1(h).
"EXTENSIONS OF CREDIT" shall mean the making of a Loan or the
issuance of a Letter of Credit.
"FACILITY FEE" shall have the meaning given such term in
Section 2.7 hereof.
"FAIRFIELD" shall mean Fairfield Resorts Inc., a Delaware
corporation (formerly Fairfield Communities, Inc.).
"FAIRFIELD DEBT DOCUMENTS" shall mean the instruments and
agreements pursuant to which any indebtedness of Fairfield or any of
its Subsidiaries has been issued, is outstanding or permitted to exist.
"FAIRFIELD MERGER" shall mean the transaction pursuant to the
Agreement and Plan of Merger, dated as of November 1, 2000, by and
among the Borrower, Fairfield and Grand Slam Acquisition Corp., a
Delaware corporation and subsidiary of the Borrower.
"FIXED RATE BORROWING" shall mean a Borrowing comprised of
Fixed Rate Loans. "FIXED RATE LOAN" shall mean any Competitive Loan
bearing interest at a fixed percentage rate per annum (expressed in the
form of a decimal to no more than four decimal places) specified by the
Lender making such Loan in its Competitive Bid.
"FLEET RECEIVABLES" means all receivables generated by the
Borrower or any of its Subsidiaries from obligors under fleet
maintenance contracts, fleet management contracts and fuel card
contracts and any other service contracts billed together with Eligible
Leases, which are of a type customarily eligible for inclusion in a
Qualified Securitization Transaction.
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is
located. For purposes of this definition, the United States of America,
each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"FUNDAMENTAL DOCUMENTS" shall mean this Agreement, any
Revolving Credit Notes, any Competitive Notes and any Compliance
Certificate which is required to be executed by the Borrower pursuant
to Section 5.1(c) and delivered to the Administrative Agent in
connection with this Agreement.
10
"GAAP" shall mean generally accepted accounting principles
consistently applied (except for accounting changes in response to FASB
releases or other authoritative pronouncements) PROVIDED, however, that
all calculations made pursuant to Sections 6.5 and 6.6 and the related
definitions shall have been computed based on such generally accepted
accounting principles as are in effect on the Closing Date.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, or any court, in each case whether of the
United States or foreign.
"GRANTING LENDER" shall have the meaning assigned to such term
in Section 9.3(k).
"GUARANTY" shall mean, as to any Person, any direct or
indirect obligation of such Person guaranteeing or intended to
guarantee any Indebtedness, Capital Lease, dividend or other monetary
obligation ("PRIMARY OBLIGATION") of any other Person (the "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (c) to purchase property, securities or services,
in each case, primarily for the purpose of assuring the owner of any
such primary obligation of the repayment of such primary obligation or
(d) as a general partner of a partnership or a joint venturer of a
joint venture in respect of Indebtedness of such partnership or such
joint venture which is treated as a general partnership for purposes of
Applicable Law. The amount of any Guaranty shall be deemed to be an
amount equal to the stated or determinable amount (or portion thereof)
of the primary obligation in respect of which such Guaranty is made or,
if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder); PROVIDED, HOWEVER, that the amount of any Guaranty
shall be limited to the extent necessary so that such amount does not
exceed the value of the assets of such Person (as reflected on a
consolidated balance sheet of such Person prepared in accordance with
GAAP) to which any creditor or beneficiary of such Guaranty would have
recourse. Notwithstanding the foregoing definition, the term "Guaranty"
shall not include any direct or indirect obligation of a Person as a
general partner of a general partnership or a joint venturer of a joint
venture in respect of Indebtedness of such general partnership or joint
venture, to the extent such Indebtedness is contractually non-recourse
to the assets of such Person as a general partner or joint venturer
(other than assets comprising the capital of such general partnership
or joint venture).
"HAZARDOUS MATERIALS" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or
other pollutants, including petroleum or petroleum distillates,
asbestos or 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.
11
"INDEBTEDNESS" shall mean (without double counting), at any
time and with respect to any Person, (i) indebtedness of such Person
for borrowed money (whether by loan or the issuance and sale of debt
securities) or for the deferred purchase price of property or services
purchased (other than amounts constituting trade payables arising in
the ordinary course and payable within 180 days); (ii) indebtedness of
others which such Person has directly or indirectly assumed or
guaranteed (but only to the extent so assumed or guaranteed) or
otherwise provided credit support therefor, including without
limitation, Guaranties; (iii) indebtedness of others secured by a Lien
on assets of such Person, whether or not such Person shall have assumed
such indebtedness (but only to the extent of the fair market value of
such assets); (iv) obligations of such Person in respect of letters of
credit, acceptance facilities, or drafts or similar instruments issued
or accepted by banks and other financial institutions for the account
of such Person (other than trade payables arising in the ordinary
course and payable within 180 days); or (v) obligations of such Person
under Capital Leases.
"INDEMNIFIED PARTY" shall have the meaning assigned to such
term in Section 9.5.
"INDEMNIFIED TAXES" shall mean Taxes other than Excluded
Taxes.
"INTEREST COVERAGE RATIO" shall mean, for each period for
which it is to be determined, the ratio of (i) Consolidated EBITDA to
(ii) Consolidated Interest Expense.
"INTEREST PAYMENT DATE" shall mean, with respect to any
Borrowing, the last day of the Interest Period applicable thereto and,
in the case of a LIBOR Borrowing with an Interest Period of more than
three months' duration or a Fixed Rate Borrowing with an Interest
Period of more than 90 days' duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months
duration or 90 days' duration, as the case may be, been applicable to
such Borrowing, and, in addition, the date of any refinancing or
conversion of a Borrowing with, or to, a Borrowing of a different
Interest Rate Type.
"INTEREST PERIOD" shall mean (a) as to any LIBOR Borrowing,
the period commencing on the date of such Borrowing, and ending on the
numerically corresponding day (or, if there is no numerically
corresponding day or if the date of the LIBOR Borrowing is the last day
of any month, on the last day) in the calendar month that is 1, 2, 3, 6
or, subject to each Lender's approval, 12 months thereafter, as the
Borrower may elect, (b) as to any ABR Borrowing, the period commencing
on the date of such Borrowing and ending on the earliest of (i) the
next succeeding March 31, June 30, September 30 or December 31, (ii)
the Maturity Date and (iii) the date such Borrowing is refinanced with
a Borrowing of a different Interest Rate Type in accordance with
Section 2.6 or is prepaid in accordance with Section 2.13 and (c) as to
any Fixed Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the date specified in the Competitive Bids in
which the offer to make the Fixed Rate Loans comprising such Borrowing
were extended, which shall not be earlier than one day after the date
of such Borrowing or later than 360 days after the date of such
Borrowing; PROVIDED, HOWEVER, that (i) if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of
12
LIBOR Loans only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (ii) no Interest Period may be
selected which would extend beyond the Maturity Date. Interest shall
accrue from, and including, the first day of an Interest Period to, but
excluding, the last day of such Interest Period.
"INTEREST RATE PROTECTION AGREEMENT" shall mean any interest
rate swap agreement, interest rate cap agreement or other similar
financial agreement or arrangement.
"INTEREST RATE TYPE" when used in respect of any Loan or
Borrowing, shall refer to the Rate by reference to which interest on
such Loan or on the Loans comprising such Borrowing is determined. For
purposes hereof, "Rate" shall include LIBOR, the Alternate Base Rate
and the Fixed Rate.
"ISSUANCE" shall mean with respect to any Letter of Credit,
the issuance, amendment, renewal or extension of such Letter of Credit,
PROVIDED that the reinstatement of any Letter of Credit shall not
constitute an issuance of such Letter of Credit.
"ISSUING LENDER" shall mean JPMorgan Chase Bank or its
Affiliates, any Existing Issuing Lender with respect to any Existing
Letter(s) of Credit issued by it and any other Letter of Credit which
the Borrower has requested such Existing Issuing Lender to issue (and
such Existing Issuing Lender (other than JPMorgan Chase Bank or its
Affiliates, in its capacity as Issuing Lender hereunder) has agreed in
its sole discretion to issue) hereunder, and/or such other of the
Lenders as may be designated in writing by the Borrower and which agree
in writing to act as such in accordance with the terms hereof.
"JPMORGAN CHASE BANK" shall mean JPMorgan Chase Bank, a New
York banking corporation.
"L/C EXPOSURE" shall mean, at any time, the amount expressed
in Dollars of the aggregate face amount of all drafts which may then or
thereafter be presented by beneficiaries under all Letters of Credit
then outstanding plus (without duplication) the face amount of all
drafts which have been presented under Letters of Credit but have not
yet been paid or have been paid but not reimbursed.
"LENDER and "LENDERS" shall mean the financial institutions
whose names appear at the foot hereof and any assignee of a Lender
permitted pursuant to Section 9.3(b).
"LENDING OFFICE" shall mean, with respect to any of the
Lenders, the branch or branches (or affiliate or affiliates) from which
any such Lender's LIBOR Loans, Fixed Rate Loans or ABR Loans, as the
case may be, are made or maintained and for the account of which all
payments of principal of, and interest on, such Lender's LIBOR Loans,
Fixed Rate Loans or ABR Loans are made, as notified to the
Administrative Agent from time to time.
"LETTER OF CREDIT" shall have the meaning ascribed to such
term in Section 2.23.
13
"LIBOR" shall mean, with respect to any LIBOR Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next Basis Point) equal to the rate at which Dollar
deposits approximately equal in principal amount to (a) in the case of
a Revolving Credit Borrowing, JPMorgan Chase Bank's portion of such
LIBOR Borrowing and (b) in the case of a Competitive Borrowing, a
principal amount that would have been JPMorgan Chase Bank's portion of
such Competitive Borrowing had such Competitive Borrowing been a
Revolving Credit Borrowing, and for a maturity comparable to such
Interest Period, are offered to the principal London office of JPMorgan
Chase Bank in immediately available funds in the London Interbank
Market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"LIBOR BORROWING" shall mean a Borrowing comprised of LIBOR
Loans.
"LIBOR COMPETITIVE LOAN" shall mean any Competitive Loan
bearing interest at a rate determined by reference to LIBOR in
accordance with the provisions of Section 2.
"LIBOR LOAN" shall mean any LIBOR Competitive Loan or LIBOR
Revolving Credit Loan.
"LIBOR REVOLVING CREDIT LOAN" shall mean any Revolving Credit
Loan bearing interest at a rate determined by reference to LIBOR in
accordance with the provisions of Section 2.
"LIBOR SPREAD" shall mean, at any date or any period of
determination, the LIBOR Spread that would be in effect on such date or
during such period pursuant to the chart set forth in Section 2.22
based on the rating of the Borrower's senior non-credit enhanced
unsecured long-term debt.
"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 financing lease having
substantially the same economic effect as any of the foregoing)
relating to such asset.
"LOAN" shall mean a Competitive Loan or a Revolving Credit
Loan, whether made as a LIBOR Loan, an ABR Loan or a Fixed Rate Loan,
as permitted hereby.
"MARGIN" shall mean, as to any LIBOR Competitive Loan, the
margin (expressed as a percentage rate per annum in the form of a
decimal to four decimal places) to be added to, or subtracted from,
LIBOR in order to determine the interest rate applicable to such Loan,
as specified in the Competitive Bid relating to such Loan.
"MARGIN STOCK" shall be as defined in Regulation U of the
Board.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect
on the business, assets, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole (it
is understood that, for purposes of this definition, the
14
accounting irregularities and errors disclosed in the Borrower's report
on Form 10-K for the period ending December 31, 2001 filed with the
Securities and Exchange Commission and the class action lawsuits
disclosed therein and other class action lawsuits arising as a result
of the accounting irregularities and errors disclosed therein do not
constitute a Material Adverse Effect).
"MATERIAL SUBSIDIARY" shall mean any Subsidiary of the
Borrower which, together with its Subsidiaries at the time of
determination hold, or, solely with respect to Sections 7(f) and 7(g),
any group of Subsidiaries which, if merged into each other at the time
of determination would hold, assets constituting 10% or more of
Consolidated Assets or accounts for 10% or more of Consolidated EBITDA
for the Rolling Period immediately preceding the date of determination.
"MATURITY DATE" shall mean December 10, 2005, or the
immediately preceding Business Day.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NON-RATABLE ASSIGNMENT" shall have the meaning assigned to
such term in Section 9.3(b).
"NOTES" shall mean the Competitive Notes and the Revolving
Credit Notes.
"OBLIGATIONS" shall mean the obligation of the Borrower to
make due and punctual payment of principal of, and interest on, the
Loans, the Facility Fee, reimbursement obligations in respect of
Letters of Credit and all other monetary obligations of the Borrower to
the Administrative Agent, any Issuing Lender or any Lender under this
Agreement, the Notes or the Fundamental Documents.
"OFFERED INCREASE NOTICE" shall have the meaning assigned to
such term in Section 2.12(d).
"OTHER TAXES" shall mean any and all documentary taxes,
assessments or charges made by any Governmental Authority by reason of
the execution and delivery of this Agreement or the Notes or the
issuance of any Letters of Credit or any Fundamental Document.
"PARTICIPANT" shall have the meaning assigned to such term in
Section 9.3(g).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any successor thereto.
"PERMITTED ENCUMBRANCES" shall mean Liens permitted under
Section 6.3 hereof.
"PERMITTED TIMESHARE COLLATERAL" means, as of any date of
determination:
15
(1) the collateral securing Timeshare Loan
Indebtedness and consisting of Timeshare Loans or a beneficial
interest therein and the proceeds thereof;
(2) Timeshare Loans or a beneficial interest therein,
transferred to a Securitization Entity in connection with a
Qualified Securitization Transaction and the proceeds thereof;
(3) any related assets which are customarily
transferred, or in respect of which security interests are
customarily granted, in connection with asset securitizations
involving Timeshare Loans; and
(4) any proceeds of any of the foregoing.
"PERMITTED VEHICLE COLLATERAL" means, as of any date of
determination:
(1) the collateral securing Rental Vehicle
Securitization Indebtedness and consisting of Eligible
Vehicles and receivables, or a beneficial interest therein,
arising from the disposition of Eligible Vehicles and the
proceeds thereof;
(2) Eligible Leases and Fleet Receivables, or a
beneficial interest therein, transferred to a Securitization
Entity in connection with a Qualified Securitization
Transaction and the proceeds thereof;
(3) any related assets which are customarily
transferred, or in respect of which security interests are
customarily granted, in connection with asset securitizations
involving Eligible Vehicles or Eligible Leases; and
(4) any proceeds of any of the foregoing.
"PERSON" shall mean any natural person, corporation, division
of a corporation, partnership, limited liability company, trust, joint
venture, company, estate, unincorporated organization or government or
any agency or political subdivision thereof.
"PHH" shall mean PHH Corporation, a Maryland corporation.
"PLAN" shall mean 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.
"PRO FORMA BASIS" shall mean in connection with any
transaction for which a determination on a Pro Forma Basis is required
to be made hereunder, that such determination shall be made (i) after
giving effect to any issuance of Indebtedness, any acquisition, any
disposition or any other transaction (as applicable) and (ii) assuming
that the issuance of Indebtedness, acquisition, disposition or other
transaction and, if
16
applicable, the application of any proceeds therefrom, occurred at the
beginning of the most recent Rolling Period ending at least thirty (30)
days prior to the date on which such issuance of Indebtedness,
acquisition, disposition or other transaction occurred.
"PURCHASE MONEY NOTE" means a promissory note of a
Securitization Entity evidencing a line of credit, which may be
irrevocable, from the Borrower or any of its Subsidiaries or a
Timeshare Subsidiary to a Securitization Entity or representing the
deferred purchase price for the purchase of assets by such
Securitization Entity from the Borrower or any of its Subsidiaries or
Timeshare Subsidiary, as the case may be, in each case in connection
with a Qualified Securitization Transaction, which note is repayable
from cash available to the Securitization Entity, other than amounts
required to be established as reserves pursuant to agreements, amounts
paid to investors in respect of interest, principal and other amounts
owing to such investors and amounts paid in connection with the
purchase of Eligible Vehicles, Eligible Leases, Fleet Receivables or a
beneficial interest therein, in the case of an Rental Vehicle
Securitization Entity, or a Timeshare Loan, in the case of a Timeshare
Securitization Entity.
"QUALIFIED SECURITIZATION TRANSACTION" means (x) any
transaction or series of transactions that may be entered into by the
Borrower or any of its Subsidiaries pursuant to which the Borrower or
any of its Subsidiaries may sell, convey or otherwise transfer to (1) a
Securitization Entity (in the case of a transfer by the Borrower or any
of its Subsidiaries) or (2) any other Person (in the case of a transfer
by a Securitization Entity), or may grant a security interest in, any
Permitted Vehicle Collateral (whether now existing or arising in the
future) of the Borrower or any of its Subsidiaries, and any assets
related thereto including, without limitation, the proceeds of such
Permitted Vehicle Collateral or (y) any transaction or series of
transactions that may be entered into by any Timeshare Subsidiary
pursuant to which any Timeshare Subsidiary may sell, convey or
otherwise transfer to (1) a Securitization Entity (in the case of a
transfer by any Timeshare Subsidiary) or (2) any other Person (in the
case of a transfer by a Securitization Entity), or may grant a security
interest in, any Permitted Timeshare Collateral (whether now existing
or arising in the future) of any Timeshare Subsidiary, and any assets
related thereto including, without limitation, the proceeds of such
Permitted Timeshare Collateral.
"RATABLE ASSIGNMENT" shall have the meaning assigned to such
term in Section 9.3(h).
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's
Affiliates.
"RENTAL VEHICLE SECURITIZATION ENTITY" means a Subsidiary of
the Borrower (or another Person in which the Borrower or any of its
Subsidiaries makes an investment or to which the Borrower or any of its
Subsidiaries transfers Permitted Vehicle Collateral or an interest in
Permitted Vehicle Collateral) which engages in no activities other than
in connection with the ownership, leasing, operation and financing of
Eligible Vehicles and
17
other Permitted Vehicle Collateral and which is designated by the
Person controlling such Subsidiary (or Person) as a Securitization
Entity and as to which:
(1) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which:
(a) is guaranteed by the Borrower or any of
its Subsidiaries (excluding guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant
to Standard Securitization Undertakings);
(b) is recourse to or obligates the Borrower
or any of its Subsidiaries in any way other than pursuant to
Standard Securitization Undertakings; or
(c) subjects any property or asset of the
Borrower or any of its Subsidiaries (other than a
Securitization Entity), directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant
to Standard Securitization Undertakings;
(2) neither the Borrower nor any of its Subsidiaries
has any material contract, agreement, arrangement or
understanding (except in connection with a Purchase Money Note
or Qualified Securitization Transaction) other than on terms
no less favorable to the Borrower or such Subsidiary of the
Borrower than those that might be obtained at the time from
Persons that are not Affiliates of the Borrower, other than
fees payable in the ordinary course of business in connection
with servicing Permitted Vehicle Collateral; and
(3) neither the Borrower nor any of its Subsidiaries
has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain
levels of operating results.
For purposes of this definition, a Person shall be deemed to be
"controlled" by another if such latter Person possesses, directly or
indirectly, power either to (i) vote more that 50% of the securities
having ordinary voting power for the election of directors of such
controlled Person or (ii) direct or cause the direction of the
management and policies of such controlled Person whether or contract
or otherwise.
"RENTAL VEHICLE SECURITIZATION INDEBTEDNESS" means (i)
Indebtedness that finances or refinances Eligible Vehicles (but only to
the extent actually used to finance or refinance Eligible Vehicles) and
(ii) Indebtedness secured by Permitted Vehicle Collateral.
"REQUIRED LENDERS" shall mean at any time, Lenders holding
Commitments representing 51% of the Total Commitment, except that (i)
for purposes of determining the Lenders entitled to declare the
principal of and the interest on the Loans and the Notes and all other
amounts payable hereunder or thereunder to be forthwith due and payable
pursuant to Section 7 and (ii) at all times after the termination of
the Total Commitment
18
in its entirety, "Required Lenders" shall mean Lenders holding 51% of
the aggregate principal amount of the Loans and L/C Exposure at the
time outstanding.
"REVOLVING CREDIT BORROWING" shall mean a Borrowing consisting
of simultaneous Revolving Credit Loans from each of the Lenders.
"REVOLVING CREDIT BORROWING REQUEST" shall mean a request made
pursuant to Section 2.5 in the form of Exhibit F.
"REVOLVING CREDIT LOANS" shall mean the Loans made by the
Lenders to the Borrower pursuant to a notice given by the Borrower
under Section 2.5. Each Revolving Credit Loan shall be a LIBOR
Revolving Credit Loan or an ABR Loan.
"REVOLVING CREDIT NOTE" shall have the meaning assigned to
such term in Section 2.8.
"ROLLING PERIOD" shall mean with respect to any fiscal
quarter, such fiscal quarter and the three immediately preceding fiscal
quarters considered as a single accounting period.
"SECURITIZATION ENTITY" means a Rental Vehicle Securitization
Entity or a Timeshare Securitization Entity.
"SECURITIZATION INDEBTEDNESS" shall mean Indebtedness incurred
by any structured bankruptcy-remote Subsidiary of the Borrower which
does not permit or provide for recourse to the Borrower or any
Subsidiary of the Borrower (other than such structured
bankruptcy-remote Subsidiary) or any property or asset of the Borrower
or any Subsidiary of the Borrower (other than the property or assets of
such structured bankruptcy-remote Subsidiary).
"SETTLEMENT" shall mean the settlement of a consolidated class
action lawsuit pending against the Borrower styled In re Cendant
Corporation Litigation, No. 98-CV-1664 (WHW)(D.N.J.).
"SETTLEMENT AGREEMENT" shall mean the Stipulation of
Settlement with the Borrower and Certain Other Defendants, executed
March 17, 2000.
"SETTLEMENT TRUST" shall mean the escrow account established
pursuant to the Settlement Agreement.
"S&P" shall mean Standard & Poor's.
"SPC" shall have the meaning assigned to such term in Section
9.3(k).
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, guaranties, covenants and indemnities entered into by the
Borrower or any of its Subsidiaries or any Timeshare Subsidiary, which
are reasonably customary in securitizations.
19
"STATUTORY RESERVES" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator
of which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board and any other
banking authority to which the Administrative Agent or any Lender is
subject, for Eurocurrency Liabilities (as defined in Regulation D).
Such reserve percentages shall include those imposed under Regulation
D. LIBOR Loans shall be deemed to constitute Eurocurrency Liabilities
and as such shall be deemed to be subject to such reserve requirements
without benefit of or credit for proration, exceptions or offsets which
may be available from time to time to any Lender under Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"SUBSIDIARY" shall mean with respect to any Person, any
corporation, association, joint venture, partnership or other business
entity (whether now existing or hereafter organized) of which at least
a majority of the voting stock or other ownership interests having
ordinary voting power for the election of directors (or the equivalent)
is, at the time as of which any determination is being made, owned or
controlled by such Person or one or more subsidiaries of such Person or
by such Person and one or more subsidiaries of such Person; PROVIDED
that for purposes of Sections 6.1, 6.3, 6.4, 6.5 and 6.6 hereof, PHH
and its Subsidiaries shall be deemed not to be Subsidiaries of the
Borrower except that (a) Consolidated Net Worth shall be calculated in
accordance with the definition thereof and (b) in calculating
Consolidated EBITDA for any fiscal quarter the amount of any cash
dividends or any other cash distributions actually paid by PHH or any
Subsidiary of PHH to the Borrower and its Subsidiaries (excluding the
Subsidiaries of PHH) (i) during such period and (ii) up to the time of
the delivery of the certificate pursuant to Section 5.1(c) hereof
related to such period shall be included in such calculation. Any such
cash dividends and distributions received from PHH and its Subsidiaries
in one period and included in calculating Consolidated EBITDA for any
prior period shall not be included in calculating Consolidated EBITDA
for any fiscal quarter ending on or after the first anniversary of the
date such dividends and distributions are received.
"TAXES" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by
any Governmental Authority.
"TIMESHARE DEBT DOCUMENTS" shall mean the instruments and
agreements pursuant to which any indebtedness of any Timeshare
Subsidiary has been issued, is outstanding or is permitted to exist.
"TIMESHARE LOAN" shall mean any loan made to finance the
acquisition of a timeshare, including a timeshare that has not yet been
completed, any installment contract for the purchase of a timeshare, or
any other arrangement in the nature of a financing of the purchase of a
timeshare, and all security therefor and proceeds thereof.
"TIMESHARE LOAN INDEBTEDNESS" shall mean any Indebtedness
secured by or payable from Permitted Timeshare Collateral or Timeshare
Property.
20
"TIMESHARE PROPERTY" shall mean any property used or intended
to be used for development, in whole or in part, of a timeshare regime,
including but not limited to real property, improvements thereon, any
condominium, any portion of such a development, any unit or units
subjected to a timeshare regime, any fixed week intervals, any
undivided interests, any notional "points" afforded to owners of
timeshares, any common areas, and any other form of ownership of, or
entitlement to occupy real estate that forms a part of, or is subject
to, a timeshare regime under applicable state law.
"TIMESHARE SECURITIZATION ENTITY" shall mean in the case of a
Subsidiary of a Timeshare Subsidiary (or another Person in which a
Timeshare Subsidiary makes an investment or to which any Timeshare
Subsidiary transfers Permitted Timeshare Collateral or an interest in
Permitted Timeshare Collateral) which engages in no activities other
than in connection with the ownership, leasing, operation and financing
of Timeshare Properties and other Permitted Timeshare Collateral and
which is designated by the board of directors of a Timeshare Subsidiary
as a Securitization Entity and as to which:
(1) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which:
(a) is guaranteed by the Borrower or any of
its Subsidiaries (excluding guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant
to Standard Securitization Undertakings);
(b) is recourse to or obligates the
Borrower in any way other than pursuant to Standard
Securitization Undertakings; or
(c) subjects any property or asset of the
Borrower or any of its Subsidiaries (other than a
Securitization Entity), directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant
to Standard Securitization Undertakings;
(2) neither the Borrower nor any of its Subsidiaries
has any material contract, agreement, arrangement or
understanding (except in connection with a Purchase Money Note
or Qualified Securitization Transaction) other than on terms
no less favorable to the Borrower or such Subsidiary of the
Borrower than those that might be obtained at the time from
Persons that are not Affiliates of the Borrower, other than
fees payable in the ordinary course of business in connection
with servicing Permitted Timeshare Collateral; and
(3) neither the Borrower nor any of its Subsidiaries
has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain
levels of operating results.
"TIMESHARE SUBSIDIARY" shall mean Fairfield, its Subsidiaries,
or any other direct or indirect Subsidiary of the Borrower that is in
the business of developing, owning, selling, managing or financing
Timeshare Properties.
21
"TOTAL COMMITMENT" shall mean, at any time, the aggregate
amount of the Lenders' Commitments as in effect at such time.
"UPPER DECS" shall mean the securities, consisting of 6.75%
senior notes of the Borrower due 2006 and forward purchase contracts to
purchase the Borrower's common stock in August 2004, issued on July 27,
2001 pursuant to the Prospectus Supplement, dated as of July 20, 2001.
"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.
2. THE LOANS
SECTION 2.1. COMMITMENTS.
(a) Subject to the terms and conditions hereof and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Revolving Credit Loans to the
Borrower, at any time and from time to time on and after the Closing Date and
until the earlier of the Maturity Date and the termination of the Commitment of
such Lender, in an aggregate principal amount at any time outstanding not to
exceed such Lender's Commitment minus the sum of such Lender's pro rata share of
the then current L/C Exposure plus the amount by which the Competitive Loans
outstanding at such time shall be deemed to have used such Lender's Commitment
pursuant to Section 2.18 subject, however, to the conditions that (a) at no time
shall (i) the sum of (A) the outstanding aggregate principal amount of all
Revolving Credit Loans made by all Lenders plus (B) the then current L/C
Exposure plus (C) the outstanding aggregate principal amount of all Competitive
Loans made by all Lenders exceed (ii) the Total Commitment and (b) at all times
the outstanding aggregate principal amount of all Revolving Credit Loans made by
each Lender shall equal the product of (i) the percentage that its Commitment
represents of the Total Commitment times (ii) the outstanding aggregate
principal amount of all Revolving Credit Loans made pursuant to a notice given
by the Borrower under Section 2.5. The Commitments of the Lenders may be
terminated or reduced from time to time pursuant to Section 2.12 or Section 7.
(b) Within the foregoing limits, the Borrower may borrow,
pay or repay and reborrow hereunder, on and after the Closing Date and prior to
the Maturity Date, upon the terms and subject to the conditions and limitations
set forth herein.
SECTION 2.2. LOANS.
(a) Each Revolving Credit Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their Commitments; PROVIDED, HOWEVER, that the failure of any Lender to make any
Revolving Credit Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.4. The Revolving Credit Loans or
Competitive Loans comprising any Borrowing shall be (i) in the case of
Competitive Loans and LIBOR Loans, in an
22
aggregate principal amount that is an integral multiple of $5,000,000 and not
less than $10,000,000 and (ii) in the case of ABR Loans, in an aggregate
principal amount that is an integral multiple of $500,000 and not less than
$5,000,000 (or, in the case of clause (i) and clause (ii) above, if less, an
aggregate principal amount equal to the remaining balance of the available Total
Commitment).
(b) Each Competitive Borrowing shall be comprised
entirely of LIBOR Competitive Loans or Fixed Rate Loans, and each Revolving
Credit Borrowing shall be comprised entirely of LIBOR Revolving Credit Loans or
ABR Loans, as the Borrower may request pursuant to Section 2.4 or 2.5, as
applicable. Each Lender may at its option make any LIBOR Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan,
PROVIDED that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement and
the applicable Note. Borrowings of more than one Interest Rate Type may be
outstanding at the same time; PROVIDED, HOWEVER, that the Borrower shall not be
entitled to request any Borrowing that, if made, would result in an aggregate of
more than 9 separate Revolving Credit Loans of any Lender being outstanding
hereunder at any one time. For purposes of the calculation required by the
immediately preceding sentence, LIBOR Revolving Credit Loans having different
Interest Periods, regardless of whether they commence on the same date, shall be
considered separate Loans and all Loans of a single Interest Rate Type made on a
single date shall be considered a single Loan if such Loans have a common
Interest Period.
(c) Subject to Section 2.6, each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by making funds
available at the offices of the Administrative Agent's Agent Bank Services
Department, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, for credit to Cendant Corporation Clearing
Account, Account No. 144812905 (Reference: Cendant Corporation Credit Agreement
dated as of December 10, 2002) no later than 1:00 P.M. New York City time (2:00
P.M. New York City time, in the case of an ABR Borrowing) in Federal or other
immediately available funds. Upon receipt of the funds to be made available by
the Lenders to fund any Borrowing hereunder, the Administrative Agent shall
disburse such funds by depositing them into an account of the Borrower
maintained with the Administrative Agent. Competitive Loans shall be made by the
Lender or Lenders whose Competitive Bids therefor are accepted pursuant to
Section 2.4 in the amounts so accepted and Revolving Credit Loans shall be made
by all the Lenders pro rata in accordance with Section 2.1 and this Section 2.2.
(d) Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request any Borrowing if the
Interest Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.3. USE OF PROCEEDS.
The proceeds of the Loans shall be used for working capital
and general corporate purposes of the Borrower and its Subsidiaries, including,
without limitation, for acquisitions, and support of the Borrower's commercial
paper program. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations T, U and X of the Board.
23
SECTION 2.4. COMPETITIVE BID PROCEDURE.
(a) In order to request Competitive Bids, the Borrower
shall hand deliver or telecopy to the Administrative Agent a duly completed
Competitive Bid Request in the form of Exhibit E-1, to be received by the
Administrative Agent (i) in the case of a LIBOR Competitive Loan, not later than
10:00 a.m., New York City time, four Business Days before a proposed Competitive
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than 10:00
a.m., New York City time, one Business Day before a proposed Competitive
Borrowing. No ABR Loan shall be requested in, or made pursuant to, a Competitive
Bid Request. A Competitive Bid Request that does not conform substantially to
the format of Exhibit E-1 may be rejected in the Administrative Agent's sole
discretion, and the Administrative Agent shall promptly notify the Borrower of
such rejection by telecopier. Such request for Competitive Bids shall in each
case refer to this Agreement and specify (i) whether the Borrowing then being
requested is to be a LIBOR Borrowing or a Fixed Rate Borrowing, (ii) the date of
such Borrowing (which shall be a Business Day) and the aggregate principal
amount thereof, which shall be in a minimum principal amount of $10,000,000 and
in an integral multiple of $5,000,000 (or if less, an aggregate principal amount
equal to the remaining balance of the available Total Commitment), and (iii) the
Interest Period with respect thereto (which may not end after the Maturity
Date). Promptly after its receipt of a Competitive Bid Request that is not
rejected as aforesaid, the Administrative Agent shall invite by telecopier (in
the form set forth in Exhibit E-2) the Lenders to bid, on the terms and subject
to the conditions of this Agreement, to make Competitive Loans pursuant to the
Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or
more Competitive Bids to the Borrower responsive to a Competitive Bid Request.
Each Competitive Bid by a Lender must be received by the Administrative Agent
via telecopier, in the form of Exhibit E-3, (i) in the case of a LIBOR
Competitive Loan, not later than 9:30 a.m., New York City time, three Business
Days before a proposed Competitive Borrowing and (ii) in the case of a Fixed
Rate Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially to the
format of Exhibit E-3 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower, and the
Administrative Agent shall notify the Lender making such nonconforming bid of
such rejection as soon as practicable. Each Competitive Bid shall refer to this
Agreement and specify (i) the principal amount (which shall be in a minimum
principal amount of $10,000,000 and in an integral multiple of $5,000,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested by the Borrower) of the Competitive Loan or Loans that the Lender is
willing to make to the Borrower, (ii) the Competitive Bid Rate or Rates at which
the Lender is prepared to make the Competitive Loan or Loans and (iii) the
Interest Period or Interest Periods with respect thereto. If any Lender shall
elect not to make a Competitive Bid, such Lender shall so notify the
Administrative Agent via telecopier (i) in the case of LIBOR Competitive Loans,
not later than 9:30 a.m., New York City time, three Business Days before a
proposed Competitive Borrowing and (ii) in the case of Fixed Rate Loans, not
later than 9:30 a.m., New York City time, on the day of a proposed Competitive
Borrowing; PROVIDED, HOWEVER, that failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Loan as part
of such proposed Competitive Borrowing. A Competitive Bid submitted by a Lender
pursuant to this paragraph (b) shall be irrevocable.
24
(c) The Administrative Agent shall promptly notify the
Borrower by telecopier of all the Competitive Bids made, the Competitive Bid
Rate or Rates and the principal amount of each Competitive Loan in respect of
which a Competitive Bid was made and the identity of the Lender that made each
bid. The Administrative Agent shall send a copy of all Competitive Bids to the
Borrower for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.4.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Borrower shall notify
the Administrative Agent by telephone, promptly confirmed by telecopier in the
form of a Competitive Bid Accept/Reject Letter whether and to what extent it has
decided to accept or reject any or all of the bids referred to in paragraph (c)
above, (i) in the case of a LIBOR Competitive Loan, not later than 10:30 a.m.,
New York City time, three Business Days before a proposed Competitive Borrowing
and (ii) in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New
York City time, on the day of a proposed Competitive Borrowing; PROVIDED,
HOWEVER, that (A) the failure by the Borrower to give such notice shall be
deemed to be a rejection of all the bids referred to in paragraph (c) above, (B)
the Borrower shall not accept a bid made at a particular Competitive Bid Rate if
the Borrower has decided to reject a bid made at a lower Competitive Bid Rate,
(C) the aggregate amount of the Competitive Bids accepted by the Borrower shall
not exceed the principal amount specified in the Competitive Bid Request, (D) if
the Borrower shall accept a bid or bids made at a particular Competitive Bid
Rate but the amount of such bid or bids shall cause the total amount of bids to
be accepted by the Borrower to exceed the amount specified in the Competitive
Bid Request, then the Borrower shall accept a portion of such bid or bids in an
amount equal to the amount specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted at lower Competitive Bid Rates
with respect to such Competitive Bid Request (it being understood that
acceptance in the case of multiple bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such bid at such Competitive
Bid Rate) and (E) except pursuant to clause (D) above, no bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of $10,000,000 and an integral multiple of $5,000,000 (or if less, an
aggregate principal amount equal to the remaining balance of the available Total
Commitment); PROVIDED FURTHER, HOWEVER, that if a Competitive Loan must be in an
amount less than $10,000,000 because of the provisions of clause (D) above, such
Competitive Loan shall be in a minimum principal amount of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive Bid Rate
pursuant to clause (D), the amounts shall be rounded to integral multiples of
$1,000,000 in a manner that shall be in the discretion of the Borrower. A notice
given by the Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender whether its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its bid has been accepted.
25
(f) A Competitive Bid Request shall not be made within
four Business Days after the date of any previous Competitive Bid Request, or
such shorter period as may be agreed upon by the Borrower and the Administrative
Agent.
(g) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such bid directly
to the Borrower one quarter of an hour earlier than the latest time at which the
other Lenders are required to submit their bids to the Administrative Agent
pursuant to paragraph (b) above.
(h) All notices required by this Section 2.4 shall be
given in accordance with Section 9.1.
(i) Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request any Competitive Loans
unless at the time of such request the Borrower has a senior non-credit enhanced
unsecured long-term debt rating of BBB- or better from S&P or Baa3 or better
from ▇▇▇▇▇'▇.
SECTION 2.5. REVOLVING CREDIT BORROWING PROCEDURE.
In order to effect a Revolving Credit Borrowing, the Borrower
shall hand deliver or telecopy to the Administrative Agent a Borrowing notice in
the form of Exhibit F (a) in the case of a LIBOR Borrowing, not later than 12:00
(noon), New York City time, three Business Days before a proposed Borrowing, and
(b) in the case of an ABR Borrowing, not later than 12:00 (noon), New York City
time, on the day of a proposed Borrowing. No Fixed Rate Loan shall be requested
or made pursuant to a Revolving Credit Borrowing Request. Such notice shall be
irrevocable and shall in each case specify (a) whether the Borrowing then being
requested is to be a LIBOR Borrowing or an ABR Borrowing, (b) the date of such
Revolving Credit Borrowing (which shall be a Business Day) and the amount
thereof and (c) if such Borrowing is to be a LIBOR Borrowing, the Interest
Period with respect thereto. If no election as to the Interest Rate Type of a
Revolving Credit Borrowing is specified in any such notice, then the requested
Revolving Credit Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any LIBOR Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. If the Borrower shall not have given notice in accordance with this
Section 2.5 of its election to refinance a Revolving Credit Borrowing prior to
the end of the Interest Period in effect for such Borrowing, then the Borrower
shall (unless such Borrowing is repaid at the end of such Interest Period) be
deemed to have given notice of an election to refinance such Borrowing with an
ABR Borrowing. The Administrative Agent shall promptly advise the Lenders of any
notice given pursuant to this Section 2.5 and of each Lender's portion of the
requested Borrowing.
SECTION 2.6. REFINANCINGS.
The Borrower may refinance all or any part of any Borrowing
with a Borrowing of the same or a different Interest Rate Type made pursuant to
Section 2.4 or pursuant to a notice under Section 2.5, subject to the conditions
and limitations set forth herein and elsewhere in this Agreement, including
refinancings of Competitive Borrowings with Revolving Credit Borrowings and
Revolving Credit Borrowings with Competitive Borrowings; PROVIDED,
26
HOWEVER, that at any time after the occurrence, and during the continuation, of
a Default or an Event of Default, a Revolving Credit Borrowing or portion
thereof may only be refinanced with an ABR Borrowing. Any Borrowing or part
thereof so refinanced shall be deemed to be repaid in accordance with Section
2.8 with the proceeds of a new Borrowing hereunder and the proceeds of the new
Borrowing, to the extent they do not exceed the principal amount of the
Borrowing being refinanced, shall not be paid by the Lenders to the
Administrative Agent or by the Administrative Agent to the Borrower pursuant to
Section 2.2(c); PROVIDED, HOWEVER, that (a) if the principal amount extended by
a Lender in a refinancing is greater than the principal amount extended by such
Lender in the Borrowing being refinanced, then such Lender shall pay such
difference to the Administrative Agent for distribution to the Borrower or any
Lenders described in clause (b) below, as applicable, (b) if the principal
amount extended by a Lender in the Borrowing being refinanced is greater than
the principal amount being extended by such Lender in the refinancing, the
Administrative Agent shall return the difference to such Lender out of amounts
received pursuant to clause (a) above, and (c) to the extent any Lender fails to
pay the Administrative Agent amounts due from it pursuant to clause (a) above,
any Loan or portion thereof being refinanced with such amounts shall not be
deemed repaid in accordance with this Section 2.6 and, to the extent of such
failure, the Borrower shall pay such amount to the Administrative Agent as
required by Section 2.10; and (d) to the extent the Borrower fails to pay to the
Administrative Agent any amounts due in accordance with Section 2.10 as a result
of the failure of a Lender to pay the Administrative Agent any amounts due as
described in clause (c) above, the portion of any refinanced Loan deemed not
repaid shall be deemed to be outstanding solely to the Lender which has failed
to pay the Administrative Agent amounts due from it pursuant to clause (a) above
to the full extent of such Lender's portion of such Loan.
SECTION 2.7. FEES.
(a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on each March 31, June 30, September 30 and December
31, commencing December 31, 2002, and on the date on which the Commitment of
such Lender shall be terminated as provided herein, a facility fee (a "FACILITY
FEE"), at the rate per annum from time to time in effect in accordance with
Section 2.22, on the average daily amount of the Commitment of such Lender,
whether used or unused, during the preceding quarter (or shorter period
commencing with the Closing Date, or ending with (i) the Maturity Date or (ii)
any date on which the Commitment of such Lender shall be terminated). All
Facility Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. The Facility Fee due to each Lender shall
commence to accrue on the Closing Date, shall be payable in arrears and shall
cease to accrue on the earlier of the Maturity Date and the termination of the
Commitment of such Lender as provided herein.
(b) The Borrower agrees to pay the Administrative Agent
and the Syndication Agent, each for its own account, the fees at the times and
in the amounts provided for in the letter agreement dated October 15, 2002 among
the Borrower, JPMorgan Chase Bank, ▇.▇. ▇▇▇▇▇▇ Securities Inc., Bank of America,
N.A. and Banc of America Securities LLC.
(c) All fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, if
and as appropriate, among the Lenders. Once paid, none of the fees shall be
refundable under any circumstances.
27
SECTION 2.8. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay
to the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Revolving Credit Loan of such Lender on the Maturity
Date (or such earlier date on which the Revolving Credit Loans become due and
payable pursuant to Section 7). The Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Revolving Credit Loans from time
to time outstanding from the Closing Date until payment in full thereof at the
rates per annum, and on the dates, set forth in Section 2.9.
(b) The Borrower unconditionally promises to pay to the
Administrative Agent, for the account of each Lender that makes a Competitive
Loan, on the last day of the Interest Period applicable to such Competitive
Loan, the principal amount of such Competitive Loan. The Borrower further
unconditionally promises to pay interest on each such Competitive Loan for the
period from and including the date of Borrowing of such Competitive Loan on the
unpaid principal amount thereof from time to time outstanding at the applicable
rate per annum determined as provided in, and payable as specified in, Section
2.9.
(c) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the Borrower to
such Lender resulting from each Revolving Credit Loan and Competitive Loan of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(d) The Administrative Agent shall maintain the Register
pursuant to Section 9.3(e), and a subaccount therein for each Lender, in which
shall be recorded (i) the amount of each Revolving Credit Loan and Competitive
Loan made hereunder, the Interest Rate Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender's share thereof.
(e) The entries made in the Register and the accounts of
each Lender maintained pursuant to this Section 2.8 shall, to the extent
permitted by applicable law, be PRIMA FACIE evidence of the existence and
amounts of the obligations of the Borrower therein recorded; PROVIDED, HOWEVER,
that the failure of any Lender or the Administrative Agent to maintain the
Register or any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Revolving Credit Loans and Competitive Loans made to the Borrower by such Lender
in accordance with the terms of this Agreement.
(f) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit A-1 with appropriate
insertions as to date and principal amount (a "REVOLVING CREDIT NOTE").
28
(g) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Competitive Loans
of such Lender, substantially in the form of Exhibit A-2 with appropriate
insertions as to date and principal amount (a "COMPETITIVE NOTE").
SECTION 2.9. INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.10, the Loans
comprising each LIBOR Borrowing shall bear interest (computed on the basis of
the actual number of days elapsed over a year of 360 days) at a rate per annum
equal to (i) in the case of each LIBOR Revolving Credit Loan, LIBOR for the
Interest Period in effect for such Borrowing plus the applicable LIBOR Spread
from time to time in effect and (ii) in the case of each LIBOR Competitive Loan,
LIBOR for the Interest Period in effect for such Borrowing plus the Margin
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.4. Interest on each LIBOR Borrowing shall be payable on each
applicable Interest Payment Date.
(b) Subject to the provisions of Section 2.10, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, when determined by reference to the Prime Rate and over a year of 360 days
at all other times) at a rate per annum equal to the Alternate Base Rate plus
the applicable margin, if any, for ABR Loans from time to time in effect
pursuant to Section 2.22.
(c) Subject to the provisions of Section 2.10, each Fixed
Rate Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.4.
(d) Interest on each Loan shall be payable in arrears on
each Interest Payment Date applicable to such Loan. The LIBOR or the Alternate
Base Rate for each Interest Period or day within an Interest Period shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.10. INTEREST ON OVERDUE AMOUNTS.
If the Borrower shall default in the payment of the principal
of, or interest on, any Loan or any other amount becoming due hereunder, the
Borrower shall on demand from time to time pay interest, to the extent permitted
by Applicable Law, on such defaulted amount up to (but not including) the date
of actual payment (after as well as before judgment) at a rate per annum
computed on the basis of the actual number of days elapsed over a year of 365 or
366 days, as applicable, in the case of amounts bearing interest determined by
reference to the Prime Rate and a year of 360 days in all other cases, equal to
(a) in the case of the remainder of the then current Interest Period for any
LIBOR Loan or Fixed Rate Loan, the rate applicable to such Loan under Section
2.9 plus 2% per annum and (b) in the case of any other Loan or amount, the rate
that would at the time be applicable to an ABR Loan under Section 2.9 plus 2%
per annum.
29
SECTION 2.11. ALTERNATE RATE OF INTEREST.
In the event, and on each occasion, that on the day two
Business Days prior to the commencement of any Interest Period for a LIBOR Loan,
the Administrative Agent shall have determined that Dollar deposits in the
amount of the requested principal amount of such LIBOR Loan are not generally
available in the London Interbank Market, or that the rate at which such Dollar
deposits are being offered will not adequately and fairly reflect the cost to
any Lender of making or maintaining its portion of such LIBOR Loans during such
Interest Period, or that reasonable means do not exist for ascertaining LIBOR,
the Administrative Agent shall, as soon as practicable thereafter, give written
or telecopier notice of such determination to the Borrower and the Lenders. In
the event of any such determination, until the Administrative Agent shall have
determined that circumstances giving rise to such notice no longer exist, (a)
any request by the Borrower for a LIBOR Competitive Loan pursuant to Section 2.4
shall be of no force and effect and shall be denied by the Administrative Agent
and (b) any request by the Borrower for a LIBOR Borrowing pursuant to Section
2.5 shall be deemed to be a request for an ABR Loan. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.12. TERMINATION AND REDUCTION OF COMMITMENTS;
INCREASE OF COMMITMENTS.
(a) The Commitments of all of the Lenders shall be
automatically terminated on the earlier of (a) the Maturity Date and (b)
December 11, 2002 if the Closing Date has not occurred on or prior to such date.
(b) Subject to Section 2.13(b), upon at least three
Business Days, prior irrevocable written or telecopy notice to the
Administrative Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; PROVIDED, HOWEVER, that (i) each partial reduction of the Total
Commitment shall be in an integral multiple of $5,000,000 and in a minimum
principal amount of $10,000,000 and (ii) the Borrower shall not be entitled to
make any such termination or reduction that would reduce the Total Commitment to
an amount less than the sum of the aggregate outstanding principal amount of the
Loans plus the then current L/C Exposure.
(c) Each reduction in the Total Commitment hereunder
shall be made ratably among the Lenders in accordance with their respective
Commitments. The Borrower shall pay to the Administrative Agent for the account
of the Lenders on the date of each termination or reduction in the Total
Commitment, the Facility Fees on the amount of the Total Commitment so
terminated or reduced accrued to the date of such termination or reduction.
(d) In the event that the Borrower wishes to increase the
aggregate Commitments at any time when no Default or Event of Default has
occurred and is continuing, it shall notify the Administrative Agent in writing
of the amount (the "OFFERED INCREASE AMOUNT") of such proposed increase (such
notice, a "COMMITMENT INCREASE NOTICE"), and the Administrative Agent shall
notify each Lender of such proposed increase and provide such additional
information regarding such proposed increase as any Lender may reasonably
request. The Borrower may, at its election, (i) offer one or more of the Lenders
the opportunity to
30
participate in all or a portion of the Offered Increase Amount pursuant to
paragraph (f) below and/or (ii) with the consent of the Administrative Agent
(which consent shall not be unreasonably withheld), offer one or more additional
banks, financial institutions or other entities the opportunity to participate
in all or a portion of the Offered Increase Amount pursuant to paragraph (e)
below. Each Commitment Increase Notice shall specify which Lenders and/or banks,
financial institutions or other entities the Borrower desires to participate in
such Commitment increase. The Borrower or, if requested by the Borrower, the
Administrative Agent, will notify such Lenders and/or banks, financial
institutions or other entities of such offer.
(e) Any additional bank, financial institution or other
entity which the Borrower selects to offer participation in the increased
Commitments and which elects to become a party to this Agreement and provide a
Commitment in an amount so offered and accepted by it pursuant to Section
2.12(d)(ii) shall execute a New Lender Supplement with the Borrower and the
Administrative Agent, substantially in the form of Exhibit H, whereupon such
bank, financial institution or other entity (herein called a "NEW LENDER") shall
become a Lender for all purposes and to the same extent as if originally a party
hereto and shall be bound by and entitled to the benefits of this Agreement, and
Schedule 2.1 shall be deemed to be amended to add the name and Commitment of
such New Lender, PROVIDED that the Commitment of any such new Lender shall be in
an amount not less than $5,000,000.
(f) Any Lender which accepts an offer to it by the
Borrower to increase its Commitment pursuant to Section 2.12(d)(i) shall, in
each case, execute a Commitment Increase Supplement with the Borrower and the
Administrative Agent, substantially in the form of Exhibit I, whereupon such
Lender shall be bound by and entitled to the benefits of this Agreement with
respect to the full amount of its Commitment as so increased, and Schedule 2.1
shall be deemed to be amended to so increase the Commitment of such Lender.
(g) Notwithstanding anything to the contrary in this
Section 2.12, (i) in no event shall any transaction effected pursuant to this
Section 2.12 cause the aggregate Commitments hereunder to exceed $3,500,000,000
and (ii) no Lender shall have any obligation to increase its Commitment unless
it agrees to do so in its sole discretion.
SECTION 2.13. PREPAYMENT OF LOANS.
(a) Prior to the Maturity Date, the Borrower shall have
the right at any time to prepay any Revolving Credit Borrowing, in whole or in
part, subject to the requirements of Section 2.17 but otherwise without premium
or penalty, upon prior written or telecopy notice to the Administrative Agent
before 12:00 noon New York City time at least one Business Day in the case of an
ABR Loan and at least three Business Days in the case of a LIBOR Loan; PROVIDED,
HOWEVER, that each such partial prepayment shall be in an integral multiple of
$5,000,000 and in a minimum aggregate principal amount of $10,000,000. The
Borrower shall not have the right to prepay any Competitive Borrowing without
the consent of the relevant Lender.
(b) On any date when the sum of the aggregate outstanding
Loans (after giving effect to any Borrowings effected on such date) plus the
then current L/C Exposure exceeds the Total Commitment, the Borrower shall make
a mandatory prepayment of the
31
Revolving Credit Loans in such amount as may be necessary so that the aggregate
amount of outstanding Loans plus the then current L/C Exposure after giving
effect to such prepayment does not exceed the Total Commitment then in effect.
Any prepayments required by this paragraph shall be applied to outstanding ABR
Loans up to the full amount thereof before they are applied to outstanding LIBOR
Revolving Credit Loans.
(c) Each notice of prepayment pursuant to Section 2.13(a)
shall specify the specific Borrowing(s), the prepayment date and the aggregate
principal amount of each Borrowing to be prepaid, shall be irrevocable and shall
commit the Borrower to prepay such Borrowing(s) by the amount stated therein.
All prepayments under this Section 2.13 shall be accompanied by accrued interest
on the principal amount being prepaid, to the date of prepayment.
SECTION 2.14. EURODOLLAR RESERVE COSTS.
The Borrower shall pay to the Administrative Agent for the
account of each Lender, so long as such Lender shall be required under
regulations of the Board to maintain reserves with respect to liabilities or
assets consisting of, or including, Eurocurrency Liabilities (as defined in
Regulation D of the Board), additional interest on the unpaid principal amount
of each LIBOR Loan made to the Borrower by such Lender, from the date of such
Loan until such Loan is paid in full, at an interest rate per annum equal at all
times during the Interest Period for such Loan to the remainder obtained by
subtracting (i) LIBOR for such Interest Period from (ii) the rate obtained by
multiplying LIBOR as referred to in clause (i) above by the Statutory Reserves
of such Lender for such Interest Period. Such additional interest shall be
determined by such Lender and notified to the Borrower (with a copy to the
Administrative Agent) not later than five Business Days before the next Interest
Payment Date for such Loan, and such additional interest so notified to the
Borrower by any Lender shall be payable to the Administrative Agent for the
account of such Lender on each Interest Payment Date for such Loan.
SECTION 2.15. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Except with respect to Indemnified Taxes and Other
Taxes, which shall be governed solely and exclusively by Section 2.21, if after
the Closing Date any change in Applicable Law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) (i) shall subject any Lender to, or increase the net amount of,
any tax, levy, impost, duty, charge, fee, deduction or withholding with respect
to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of
payments to any Lender of the principal of or interest on any LIBOR Loan or
Fixed Rate Loan made by such Lender or any other fees or amounts payable
hereunder (other than Excluded Taxes), (ii) shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of, or credit extended by, any Lender, or
(iii) shall impose on any Lender or the London Interbank Market any other
condition affecting this Agreement or any LIBOR Loan or Fixed Rate Loan made by
such Lender, and the result of any of the foregoing shall be to increase the
cost (other than the amount of Taxes, if
32
any) to such Lender of making or maintaining any LIBOR Loan or Fixed Rate Loan
or to reduce the amount (other than the amount of Taxes, if any) of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or otherwise) in respect thereof by an amount deemed in good faith by such
Lender to be material, then the Borrower shall pay such additional amount or
amounts as will compensate such Lender for such increase or reduction to such
Lender upon demand by such Lender.
(b) If, after the Closing Date, any Lender shall have
determined in good faith that the adoption after the Closing Date of any
applicable law, rule, regulation or guideline regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
Lending Office of such Lender) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of the
Lender's holding company, if any, as a consequence of its obligations hereunder
to a level below that which such Lender (or its holding company) could have
achieved but for such applicability, adoption, change or compliance (taking into
consideration such Lender's policies or the policies of its holding company, as
the case may be, with respect to capital adequacy) by an amount deemed by such
Lender to be material, then, from time to time, the Borrower shall pay to the
Administrative Agent for the account of such Lender such additional amount or
amounts as will compensate such Lender for such reduction upon demand by such
Lender.
(c) A certificate of a Lender setting forth in reasonable
detail (i) such amount or amounts as shall be necessary to compensate such
Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii)
the calculation of such amount or amounts referred to in the preceding clause
(i), shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay the Administrative Agent for the account of such
Lender the amount shown as due on any such certificate within 10 Business Days
after its receipt of the same.
(d) Failure on the part of any Lender to demand
compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital with respect to any Interest Period
shall not constitute a waiver of such Lender's rights to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to such Interest Period or any other Interest
Period. The protection of this Section 2.15 shall be available to each Lender
regardless of any possible contention of invalidity or inapplicability of the
law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable
after it becomes aware of the occurrence of an event or the existence of a
condition that (i) would cause it to incur any increased cost under this Section
2.15, Section 2.16, Section 2.21 or Section 2.23(g) or (ii) would require the
Borrower to pay an increased amount under this Section 2.15, Section 2.16,
Section 2.21 or Section 2.23(g), it will use reasonable efforts to notify the
Borrower of such event or condition and, to the extent not inconsistent with
such Lender's internal policies, will use its reasonable efforts to make, fund
or maintain the affected Loans of such Lender, or, if applicable to participate
in Letters of Credit, through another Lending Office of such Lender if as a
result
33
thereof the additional monies which would otherwise be required to be paid or
the reduction of amounts receivable by such Lender thereunder in respect of such
Loans or Letters of Credit would be materially reduced, or any inability to
perform would cease to exist, or the increased costs which would otherwise be
required to be paid in respect of such Loans or Letters of Credit pursuant to
this Section 2.15, Section 2.16, Section 2.21 or Section 2.23(g) would be
materially reduced or the taxes or other amounts otherwise payable under this
Section 2.15, Section 2.16, Section 2.21 or Section 2.23(g) would be materially
reduced, and if, as determined by such Lender, in its sole discretion, the
making, funding or maintaining of such Loans or Letters of Credit through such
other Lending Office would not otherwise materially adversely affect such Loans
or Letters of Credit or such Lender.
(f) In the event any Lender shall have delivered to the
Borrower a notice that LIBOR Loans are no longer available from such Lender
pursuant to Section 2.16, that amounts are due to such Lender pursuant to
paragraph (c) hereof or that any of the events designated in paragraph (e)
hereof have occurred, the Borrower may (but subject in any such case to the
payments required by Section 2.17), PROVIDED that there shall exist no Default
or Event of Default, upon at least five Business Days' prior written or
telecopier notice to such Lender and the Administrative Agent, but not more than
30 days after receipt of notice from such Lender, identify to the Administrative
Agent a lending institution reasonably acceptable to the Administrative Agent
which will purchase the Commitment, the amount of outstanding Loans and any
participations in Letters of Credit from the Lender providing such notice and
such Lender shall thereupon assign its Commitment, any Loans owing to such
Lender and any participations in Letters of Credit and the Notes held by such
Lender to such replacement lending institution pursuant to Section 9.3. Such
notice shall specify an effective date for such assignment and at the time
thereof, the Borrower shall pay all accrued interest, accrued Facility Fees and
all other amounts (including without limitation all amounts payable under this
Section) owing hereunder to such Lender as at such effective date for such
assignment.
SECTION 2.16. CHANGE IN LEGALITY.
(a) Notwithstanding anything to the contrary herein
contained, if any change in any law or regulation or in the interpretation
thereof by any Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender to make or maintain
any LIBOR Loan or to give effect to its obligations as contemplated hereby,
then, by written notice to the Borrower and to the Administrative Agent, such
Lender may:
(i) declare that LIBOR Loans will not thereafter be
made by such Lender hereunder, whereupon such Lender shall not submit a
Competitive Bid in response to a request for LIBOR Competitive Loans
and the Borrower shall be prohibited from requesting LIBOR Revolving
Credit Loans from such Lender hereunder unless such declaration is
subsequently withdrawn; and
(ii) require that all outstanding LIBOR Loans made by
it be converted to ABR Loans, in which event (A) all such LIBOR Loans
shall be automatically converted to ABR Loans as of the effective date
of such notice as provided in Section 2.16(b) and (B) all payments and
prepayments of principal which would otherwise have
34
been applied to repay the converted LIBOR Loans shall instead be
applied to repay the ABR Loans resulting from the conversion of such
LIBOR Loans.
(b) For purposes of this Section 2.16, a notice to the
Borrower by any Lender pursuant to Section 2.16(a) shall be effective on the
date of receipt thereof by the Borrower.
SECTION 2.17. REIMBURSEMENT OF LENDERS.
(a) The Borrower shall reimburse each Lender on demand
for any loss incurred or to be incurred by it in the reemployment of the funds
released (i) by any prepayment (for any reason) of any LIBOR or Fixed Rate Loan
if such Loan is repaid other than on the last day of the applicable Interest
Period for such Loan or (ii) in the event that after the Borrower delivers a
notice of borrowing under Section 2.5 in respect of LIBOR Revolving Credit Loans
or a Competitive Bid Accept/Reject Letter under Section 2.4(d), pursuant to
which it has accepted bids of one or more of the Lenders, the applicable Loan is
not made on the first day of the Interest Period specified by the Borrower for
any reason other than (I) a suspension or limitation under Section 2.16 of the
right of the Borrower to select a LIBOR Loan or (II) a breach by a Lender of its
obligations hereunder. In the case of such failure to borrow, such loss shall be
the amount as reasonably determined by such Lender as the excess, if any of (A)
the amount of interest which would have accrued to such Lender on the amount not
borrowed, at a rate of interest equal to the interest rate applicable to such
Loan pursuant to Section 2.9, for the period from the date of such failure to
borrow, to the last day of the Interest Period for such Loan which would have
commenced on the date of such failure to borrow, over (B) the amount realized by
such Lender in reemploying the funds not advanced during the period referred to
above. In the case of a payment other than on the last day of the Interest
Period for a Loan, such loss shall be the amount as reasonably determined by the
Administrative Agent as the excess, if any, of (A) the amount of interest which
would have accrued on the amount so paid at a rate of interest equal to the
interest rate applicable to such Loan pursuant to Section 2.9, for the period
from the date of such payment to the last day of the then current daily Interest
Period for such Loan, over (B) the amount equal to the product of (x) the amount
of the Loan so paid TIMES (y) the current daily yield on U.S. Treasury
Securities (at such date of determination) with maturities approximately equal
to the remaining Interest Period for such Loan TIMES (z) the number of days
remaining in the Interest Period for such Loan. Each Lender shall deliver to the
Borrower from time to time one or more certificates setting forth the amount of
such loss (and in reasonable detail the manner of computation thereof) as
determined by such Lender, which certificates shall be conclusive absent
manifest error. The Borrower shall pay to the Administrative Agent for the
account of each Lender the amount shown as due on any certificate within thirty
(30) days after its receipt of the same.
(b) In the event the Borrower fails to prepay any Loan on
the date specified in any prepayment notice delivered pursuant to Section
2.13(a), the Borrower on demand by any Lender shall pay to the Administrative
Agent for the account of such Lender any amounts required to compensate such
Lender for any loss incurred by such Lender as a result of such failure to
prepay, including, without limitation, any loss, cost or expenses incurred by
reason of the acquisition of deposits or other funds by such Lender to fulfill
deposit obligations incurred in anticipation of such prepayment. Each Lender
shall deliver to the Borrower and the Administrative Agent from time to time one
or more certificates setting forth the amount of such
35
loss (and in reasonable detail the manner of computation thereof) as determined
by such Lender, which certificates shall be conclusive absent manifest error.
SECTION 2.18. PRO RATA TREATMENT.
Except as permitted under Sections 2.14, 2.15(c), 2.16 and
2.17 (i) each Revolving Credit Borrowing, each payment or prepayment of
principal of any Revolving Credit Borrowing, each payment of interest on the
Revolving Credit Loans, each payment of the Facility Fees, each reduction of the
Total Commitment and each refinancing of any Borrowing with, or conversion of
any Borrowing to, a Revolving Credit Borrowing, or continuation of any Borrowing
as a Revolving Credit Borrowing, shall be allocated pro rata among the Lenders
in accordance with their respective Commitments (or, if such Commitments shall
have expired or been terminated, in accordance with the respective principal
amount of their outstanding Revolving Credit Loans). Each payment of principal
of any Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available Commitments of the Lenders at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the Lenders
(including those Lenders that shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with such respective Commitments.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing computed in accordance with Section 2.1,
to the next higher or lower whole dollar amount.
SECTION 2.19. RIGHT OF SETOFF.
If any Event of Default shall have occurred and be continuing
and any Lender shall have directed the Administrative Agent to declare the Loans
immediately due and payable pursuant to Section 7, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
Applicable Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by such Lender and any
other indebtedness at any time owing by such Lender to, or for the credit or the
account of, the Borrower, against any of and all the obligations now or
hereafter existing under this Agreement and the Loans held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement or such Loans and although such Obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such setoff and
application made by such Lender, but the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each Lender
under this Section 2.19 are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have.
SECTION 2.20. MANNER OF PAYMENTS.
All payments by the Borrower hereunder and under the Notes
shall be made in Dollars in Federal or other immediately available funds without
deduction, setoff or
36
counterclaim at the office of the Administrative Agent's Agent Bank Services
Department, JPMorgan Chase Bank, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, for credit to Cendant Corporation
Clearing Account, Account No. 144812905 (Reference: Cendant Corporation Credit
Agreement dated December 10, 2002) no later than 12:00 noon, New York City time,
on the date on which such payment shall be due. Interest in respect of any Loan
hereunder shall accrue from and including the date of such Loan to, but
excluding, the date on which such Loan is paid or refinanced with a Loan of a
different Interest Rate Type.
SECTION 2.21. TAXES.
(a) Any and all payments by or on 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 2.21) the Administrative Agent or
Lender (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 Administrative Agent
and each Lender, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent
or such Lender, as the case may be, on or with respect to any payment by or on
account of any obligation of the Borrower hereunder (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section 2.21) 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 (other that those resulting from the Administrative Agent
or Lender's gross negligence or willful misconduct). A certificate as to the
amount of such payment or liability and setting forth in reasonable detail the
calculation and basis for such payment or liability delivered to the Borrower by
a Lender or by the Administrative Agent on its own behalf or on behalf of a
Lender, 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 Administrative 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 Administrative Agent.
(e) Any Lender that is entitled to an exemption from or
reduction of withholding with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
such Lender becomes a party to this Agreement
37
and at any other time or times reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by Applicable Law or
reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate. Each Lender and Administrative Agent
that is a United States Person, as defined in Section 7701(a)(30) of the Code
(other than Persons that are corporations or otherwise exempt from United States
backup withholding Tax), shall deliver at the time(s) and in the manner(s)
prescribed by Applicable Law, to the Borrower and the Administrative Agent (as
applicable), a properly completed and duly executed United States Internal
Revenue Form W-9 or any successor form, certifying that such Person is exempt
from United States backup withholding Tax on payments made hereunder.
(f) If the Administrative Agent or a Lender determines,
in its sole good-faith discretion, that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect
to which the Borrower has paid additional amounts pursuant to this Section 2.21,
it shall pay over such refund to the Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.21 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the
Borrower, upon the request of the Administrative Agent or such Lender, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This Section 2.21 shall not be construed to require the Administrative Agent or
any Lender to make available its tax returns (or any other information relating
to its Taxes which it deems confidential) to the Borrower or any other Person.
(g) Each Lender agrees (i) that as between it and the
Borrower or the Administrative Agent, it shall be the Person to deduct and
withhold taxes, and to the extent required by law it shall deduct and withhold
taxes, on amounts that such Lender may remit to any other Person(s) by reason of
any undisclosed transfer or assignment of an interest in this Agreement to such
other Person(s) pursuant to paragraph (g) of Section 9.3 and (ii) to indemnify
the Borrower and the Administrative Agent and any officers, directors, agents,
or employees of the Borrower or the Administrative Agent against, and to hold
them harmless from, any tax, interest, additions to tax, penalties, reasonable
counsel and accountants' fees, disbursements or payments arising from the
assertion by any appropriate taxing authority of any claim against them relating
to a failure to withhold taxes as required by Applicable Law with respect to
amounts described in clause (i) of this paragraph (c).
(h) Each assignee of a Lender's interest in this
Agreement in conformity with Section 9.3 shall be bound by this Section 2.21, so
that such assignee will have all of the obligations and provide all of the forms
and statements and all indemnities, representations and warranties required to
be given under this Section 2.21.
38
SECTION 2.22. CERTAIN PRICING ADJUSTMENTS.
The Facility Fee and the applicable LIBOR Spread in effect
from time to time shall be determined in accordance with the following table:
S&P/▇▇▇▇▇'▇ Rating Equivalent
Of The Borrower's Senior Non-Credit Enhanced Facility Fee Applicable LIBOR Spread (In
Unsecured Long-Term Debt (In Basis Points) Basis Points)
-------------------------------------------- ----------------- ---------------------------
A-/A3 or better 12.5 62.5
BBB+/Baa1 15.0 97.5
BBB/Baa2 17.5 107.5
BBB-/Baa3 20.0 117.5
BB+/Bal or lower 35.0 165.0
In the event the S&P rating on the Borrower's senior
non-credit enhanced unsecured long-term debt is not equivalent to the ▇▇▇▇▇'▇
rating on such debt, the lower rating will determine the Facility Fee and
applicable LIBOR Spread. In the event that the Borrower's senior non-credit
enhanced unsecured long-term debt is rated by only one of S&P and ▇▇▇▇▇'▇, then
that single rating shall be determinative. In the event that the Borrower's
senior unsecured long-term debt is not rated by either S&P or ▇▇▇▇▇'▇, then the
Facility Fee and the applicable LIBOR Spread shall be deemed to be calculated as
if the lowest rating category set forth above applied. Any increase in the
Facility Fee or the applicable LIBOR Spread determined in accordance with the
foregoing table shall become effective on the date of announcement or
publication by the Borrower or either such rating agency of a reduction in such
rating or, in the absence of such announcement or publication, on the effective
date of such decreased rating, or on the date of any request by the Borrower to
either of such rating agencies not to rate its senior unsecured long-term debt
or on the date either of such rating agencies announces it shall no longer rate
the Borrower's senior unsecured long-term debt. Any decrease in the Facility Fee
or applicable LIBOR Spread shall be effective on the date of announcement or
publication by either of such rating agencies of an increase in rating or in the
absence of announcement or publication on the effective date of such increase in
rating. The applicable margin for ABR Loans shall be 1% less than the applicable
LIBOR Spread (but not less than 0%).
SECTION 2.23. LETTERS OF CREDIT.
(a) (i) Prior to the Closing Date, the Existing Issuing
Lender(s) have issued the Existing Letters of Credit which, from and
after the Closing Date, shall constitute Letters of Credit hereunder.
Upon the terms and subject to the conditions hereof, each Issuing
Lender agrees to issue standby letters of credit (the letters of
credit issued on and after the Closing Date pursuant to this Section
2.23, together with the Existing Letters of Credit, collectively, the
"LETTERS OF CREDIT") payable in Dollars from time to time after the
Closing Date and prior to the earlier of the Maturity Date and the
termination of the Commitments, upon the request of the Borrower,
PROVIDED that (A) the Borrower shall
39
not request that any Letter of Credit be issued or reinstated if, after
giving effect thereto, the sum of the then current L/C Exposure plus
the aggregate Loans then outstanding would exceed the Total Commitment,
(B) in no event shall any Issuing Lender issue (x) any Letter of Credit
having an expiration date later than five Business Days before the
Maturity Date or (y) any Letter of Credit having an expiration date
more than one year after its date of issuance, PROVIDED that any Letter
of Credit with a one-year tenor may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the
date referred to in clause (x) above), (C) the Borrower shall not
request that an Issuing Lender issue or reinstate any Letter of Credit
if, after giving effect to such issuance or reinstatement, the L/C
Exposure would exceed $1,250,000,000 and (D) an Issuing Lender shall be
prohibited from issuing Letters of Credit hereunder upon the occurrence
and during the continuance of an Event of Default (PROVIDED that such
Issuing Lender shall have received notice of such Event of Default
pursuant to Section 8.4 hereof and PROVIDED FURTHER that such notice
shall be received at least 24 hours prior to the date on which any
Letter of Credit is to be issued). The Administrative Agent will, upon
request of any Issuing Lender, confirm the total amount of L/C Exposure
and the aggregate outstanding Loans to such Issuing Lender.
(ii) Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby agrees to, have
irrevocably purchased from the applicable Issuing Lender, a
participation in such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the
account of such Issuing Lender, such Lender's Commitment Percentage of
the Total Commitment, multiplied by the amount paid by such Issuing
Lender in respect of a Letter of Credit, issued by such Issuing Lender
and not reimbursed by the Borrower on the date due as provided in this
Section 2.23, 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 Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(iii) Neither the Administrative Agent, the Lenders,
any Issuing Lender, nor any of their Related Parties, shall have any
liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or failure
to make any payment thereunder, or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from
causes beyond the control of any Issuing Lender; PROVIDED that the
foregoing shall not be construed to excuse any Issuing Lender from
liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by such Issuing Lender's
failure to exercise care
40
when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof.
(iv) Each Letter of Credit may, at the option of the
applicable Issuing Lender, provide that such Issuing Lender may (but
shall not be required to) pay all or any part of the maximum amount
which may at any time be available for drawing thereunder to the
beneficiary thereof upon the occurrence of an Event of Default and the
acceleration of the maturity of the Loans, PROVIDED that, if payment is
not then due to the beneficiary, such Issuing Lender shall deposit the
funds in question in an account with such Issuing Lender to secure
payment to the beneficiary and any funds so deposited shall be paid to
the beneficiary of the Letter of Credit if conditions to such payment
are satisfied or returned to the Administrative Agent for distribution
to the Lenders (or, if all Obligations shall have been paid in full in
cash, to the Borrower) if no payment to the beneficiary has been made
and the final date available for drawings under the Letter of Credit
has passed. Each payment or deposit of funds by an Issuing Lender as
provided in this paragraph shall be treated for all purposes of this
Agreement as a drawing duly honored by such Issuing Lender under the
related Letter of Credit.
(b) Whenever the Borrower desires the issuance of a
Letter of Credit, it shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the applicable
Issuing Lender) to the Administrative Agent and the applicable Issuing Lender a
written notice no later than 1:00 p.m. (New York time) at least five Business
Days prior to the proposed date of issuance provided, however, that the Borrower
and the Administrative Agent and such Issuing Lender may agree to a shorter time
period. That notice shall specify (i) the Issuing Lender for such Letter of
Credit, (ii) the proposed date of issuance (which shall be a Business Day under
the laws of the jurisdiction of the applicable Issuing Lender), (iii) the face
amount of the Letter of Credit, (iv) the expiration date of the Letter of Credit
and (v) the name and address of the beneficiary and (vi) such other information
as shall be necessary to prepare, amend, renew or extend such Letter of Credit.
Such notice shall be accompanied by a brief description of the underlying
transaction and upon the request of the applicable Issuing Lender, the Borrower
shall provide additional details regarding the underlying transaction. If
requested by an Issuing Lender, the Borrower also shall submit a letter of
credit application on the Issuing Lender's standard form in connection with any
request for a Letter of Credit, which form shall be furnished in accordance with
Section 9.1. In the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, any Issuing Lender relating to any Letter of Credit, the
terms and conditions of this Agreement shall control. Concurrently with the
giving of written notice of a request for the issuance of a Letter of Credit,
the Borrower shall specify a precise description of the documents and the
verbatim text of any certificate to be presented by the beneficiary of such
Letter of Credit which, if presented by such beneficiary prior to the expiration
date of the Letter of Credit, would require the applicable Issuing Lender to
make payment under the Letter of Credit; provided that the applicable Issuing
Lender, in its reasonable discretion, may require customary changes in any such
documents and certificates. Upon issuance of any Letter of Credit, the
applicable Issuing Lender shall notify the Administrative Agent of the issuance
of such Letter of Credit. Promptly after receipt of such notice, the
Administrative Agent shall
41
notify each Lender of the issuance and the amount of each such Lender's
respective participation therein.
(c) The payment of drafts under any Letter of Credit
shall be made in accordance with the terms of such Letter of Credit and, in that
connection, any Issuing Lender shall be entitled to honor any drafts and accept
any documents presented to it by the beneficiary of such Letter of Credit in
accordance with the terms of such Letter of Credit and believed by such Issuing
Lender in good faith to be genuine. No Issuing Lender shall have any duty to
inquire as to the accuracy or authenticity of any draft or other drawing
documents which may be presented to it, but shall be responsible only to
determine in accordance with customary commercial practices that the documents
which are required to be presented before payment or acceptance of a draft under
any Letter of Credit have been delivered and that they comply on their face with
the requirements of that Letter of Credit.
(d) If any Issuing Lender shall be requested to make
payment on any draft presented under a Letter of Credit, such Issuing Lender
shall give notice of such request for payment to the Administrative Agent and
the Administrative Agent shall give notice to each Lender of its respective
participation therein on behalf of such Issuing Lender. Each Lender hereby
authorizes and requests such Issuing Lender to advance for its account pursuant
to the terms hereof its share of such payment based upon its participation in
the Letter of Credit and agrees to reimburse such Issuing Lender in immediately
available funds for the Dollar equivalent of the amount so advanced on its
behalf no later than 4:00 p.m. on the date such Issuing Lender makes such
request. If such reimbursement is not made by any Lender in immediately
available funds on the same day on which such Issuing Lender shall have made
payment on any such draft presented under a Letter of Credit, such Lender shall
pay interest thereon to such Issuing Lender at a rate per annum equal to the
Issuing Lender's cost of obtaining overnight funds in the New York Federal Funds
Market.
(e) In the case of any draft presented under a Letter of
Credit which is required to be paid at any time on or before the Maturity Date
and PROVIDED that the conditions specified in Section 4.2 are then satisfied,
and notwithstanding the limitations as to the aggregate principal amount of ABR
Loans set forth in Section 2.2(a), as to the time of funding of a Borrowing set
forth in Section 2.2(c) and as to the time of notice of a proposed Borrowing set
forth in Section 2.5, payment by the applicable Issuing Lender of such draft
shall constitute an ABR Loan hereunder, and interest shall accrue from the date
the applicable Issuing Lender makes such payment, which ABR Loan, upon and to
the extent that a Lender shall have made reimbursement to the applicable Issuing
Lender pursuant to Section 2.23(d), shall constitute such Lender's ABR Loan
hereunder. If any draft is presented under a Letter of Credit and (i) the
conditions specified in Section 4.2 are not satisfied or (ii) if the Commitments
have been terminated, then the Borrower will, upon demand by the Administrative
Agent or the applicable Issuing Lender, pay to the applicable Issuing Lender, in
immediately available funds, the full amount of such draft.
(f) (i) The Borrower agrees to pay the following amount
to each Issuing Lender with respect to Letters of Credit issued by it hereunder:
42
(A) with respect to drawings made under any Letter of Credit,
interest, payable on demand, on the amount paid by such Issuing Lender
in respect of each such drawing from the date of the drawing to, but
excluding, the date such amount is reimbursed by the Borrower at a
rate which is at all times equal to 2% per annum in excess of the
Alternate Base Rate plus the applicable margin therefore calculated
pursuant to Section 2.22; PROVIDED that no such default interest shall
be payable if such reimbursement is made from the proceeds of
Revolving Credit Loans pursuant to Section 2.23(e);
(B) with respect to the issuance, amendment or transfer of
each Letter of Credit and each drawing made thereunder, documentation
and processing charges in accordance with such Issuing Lender's
standard schedule for such charges in effect at the time of such
issuance, amendment, transfer or drawing, as the case may be; and
(C) a fronting fee computed at the rate agreed to by the
Borrower and the applicable Issuing Lender, on the daily average face
amount of each outstanding Letter of Credit issued by such Issuing
Lender, such fee to be due and payable in arrears on and through the
last day of each fiscal quarter of the Borrower, on the Maturity Date
and on the expiration of the last outstanding Letter of Credit.
(ii) The Borrower agrees to pay to the Administrative
Agent for distribution to each Lender in respect of all Letters of
Credit outstanding, such Lender's pro rata share of a commission on the
maximum amount available from time to time to be drawn under such
outstanding Letters of Credit calculated at a rate per annum equal to
the applicable LIBOR Spread from time to time in effect hereunder. Such
commission shall be payable in arrears on and through the last day of
each fiscal quarter of the Borrower and on the later of the Maturity
Date and the expiration of the last outstanding Letter of Credit.
(iii) Promptly upon receipt by any Issuing Lender or
the Administrative Agent (as applicable) of any amount described in
clause (i)(A) or (ii) of this Section 2.23(f), or any amount described
in Section 2.23(e) previously reimbursed to the applicable Issuing
Lender by the Lenders, such Issuing Lender shall distribute such amount
to the Administrative Agent and the Administrative Agent shall
distribute to each Lender (other than to any Lender which has failed to
reimburse the Issuing Lender for the applicable drawing) its pro rata
share of such amount. Amounts payable under clauses (i)(B) and (i)(C)
of this Section 2.23(f) shall be paid directly to the Issuing Lender
and shall be for its exclusive use.
(iv) The Borrower's obligation to reimburse payments
made with respect to any Letter of Credit as provided in this Section
2.23 shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under
any and all circumstances whatsoever and irrespective of any event or
circumstance whatsoever that might constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's
Obligations hereunder.
(g) Except with respect to Indemnified Taxes and Other
Taxes which shall be governed solely and exclusively by Section 2.21, if by
reason of (i) any change after the Closing
43
Date in Applicable Law, or in the interpretation or administration thereof
(including, without limitation, any request, guideline or policy not having the
force of law) by any Governmental Authority charged with the administration or
interpretation thereof, or (ii) compliance by any Issuing Lender or any Lender
with any direction, request or requirement (whether or not having the force of
law) issued after the Closing Date by any Governmental Authority or monetary
authority (including any change whether or not proposed or published prior to
the Closing Date), including, without limitation, Regulation D of the Board:
(A) any Issuing Lender or any Lender shall be subject to any
tax, levy, charge or withholding of any nature (other than Excluded
Taxes) or to any variation thereof or to any penalty with respect to
the maintenance or fulfillment of its obligations under this Section
2.23, whether directly or by such being imposed on or suffered by any
Issuing Lender or any Lender;
(B) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any Letter of Credit
issued by any Issuing Lender or participations therein purchased by
any Lender; or
(C) there shall be imposed on any Issuing Lender or any Lender
any other condition regarding this Section 2.23, any Letter of Credit
or any participation therein;
and the result of the foregoing is directly or indirectly to increase the cost
(other than the amount of Taxes, if any) to any Issuing Lender or any Lender of
issuing, making or maintaining any Letter of Credit or of purchasing or
maintaining any participation therein, or to reduce the amount (other than the
amount of Taxes, if any) receivable in respect thereof by any Issuing Lender or
any Lender, then and in any such case the Issuing Lender or such Lender may, at
any time, notify the Borrower, and the Borrower shall pay on demand such amounts
as such Issuing Lender or such Lender may specify to be necessary to compensate
such Issuing Lender or such Lender for such additional cost or reduced receipt.
The determination by any Issuing Lender or any Lender, as the case may be, of
any amount due pursuant to this Section 2.23 as set forth in a certificate
setting forth the calculation thereof in reasonable detail shall, in the absence
of manifest error, be final, conclusive and binding on all of the parties
hereto.
(h) If at any time when an Event of Default shall have
occurred and be continuing, any Letters of Credit shall remain outstanding, then
either the applicable Issuing Lender(s), the Administrative Agent or the
Required Lenders may, at its or their option, require the Borrower to deposit
Cash Equivalents in a Cash Collateral Account in an amount equal to the full
amount of the L/C Exposure or to furnish other security acceptable to the
Administrative Agent and the applicable Issuing Lender(s), PROVIDED that the
obligation to deposit such cash collateral shall become effective within one (1)
Business Day after the Borrower receives notice from the applicable Issuing
Lender, the Administrative Agent or the Required Lenders, and PROVIDED, FURTHER
that such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (f) or (g) of Article VII. Such
deposit shall be held by the Administrative Agent as collateral for the
Obligations. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
44
made in Cash Equivalents and at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Any amounts so delivered pursuant to the preceding
sentence shall be applied to reimburse the applicable Issuing Lender(s) for the
amount of any drawings honored under Letters of Credit issued by it. If the
Borrower is required to deposit Cash Equivalents (or other security) pursuant to
the provisions of this Section 2.23(h) as a result of the occurrence of an Event
or Default, such amount (to the extent not applied as set forth in the preceding
provisions of this paragraph) shall be returned by the Administrative Agent to
the Borrower within three (3) Business Days after such Event of Default has been
cured or waived.
(i) If at any time, the sum of the L/C Exposure and the
outstanding aggregate principal amount of the Loans exceeds the aggregate
Commitments, then the Administrative Agent or the Required Lenders may, at its
or their option, require the Borrower to deposit Cash Equivalents in a Cash
Collateral Account in an amount sufficient to eliminate such excess or to
furnish other security for such excess acceptable to the Administrative Agent.
Any amounts so delivered pursuant to the preceding sentence shall be applied to
reimburse the applicable Issuing Lender(s) for the amount of any drawings
honored under Letters of Credit and held as cash collateral for the Obligations.
If the Borrower is required to deposit Cash Equivalents (or other security)
pursuant to the provisions of this Section 2.23(i), such amount (to the extent
not applied as set forth in the preceding sentence) shall be returned by the
Administrative Agent to the Borrower within three (3) Business Days after such
excess is reduced to $0.
(j) Upon the request of the Administrative Agent, each
Issuing Lender shall furnish to the Administrative Agent copies of any Letter of
Credit issued by such Issuing Lender and such related documentation as may be
reasonably requested by the Administrative Agent.
(k) Notwithstanding the termination of the Commitments
and the payment of the Loans, the obligations of the Borrower and the Lenders
under this Section 2.23 shall remain in full force and effect until the
Administrative Agent, each Issuing Lender and the Lenders shall have been
irrevocably released from their obligations with regard to any and all Letters
of Credit.
3. REPRESENTATIONS AND WARRANTIES OF BORROWER
In order to induce the Lenders to enter into this Agreement
and to make the Loans and issue and participate in the Letters of Credit
provided for herein, the Borrower makes the following representations and
warranties to the Administrative Agent and the Lenders, all of which shall
survive the execution and delivery of this Agreement, the issuance of the Notes
and the making of the Loans and issuance of the Letters of Credit:
SECTION 3.1. CORPORATE EXISTENCE AND POWER.
The Borrower and its Subsidiaries have been duly organized and
are validly existing in good standing under the laws of their respective
jurisdictions of incorporation and are in good standing or have applied for
authority to operate as a foreign corporation in all jurisdictions where the
nature of their properties or business so requires it and where a failure to be
in good standing as a foreign corporation would have a Material Adverse Effect.
The
45
Borrower has the corporate power to execute, deliver and perform its obligations
under this Agreement and the other Fundamental Documents and other documents
contemplated hereby and to borrow hereunder.
SECTION 3.2. CORPORATE AUTHORITY, NO VIOLATION AND
COMPLIANCE WITH LAW.
The execution, delivery and performance of this Agreement and
the other Fundamental Documents and the borrowings hereunder (a) have been duly
authorized by all necessary corporate action on the part of the Borrower, (b)
will not violate any provision of any Applicable Law (including any laws related
to franchising) applicable to the Borrower or any of its Subsidiaries or any of
their respective properties or assets, (c) will not violate any provision of the
Certificate of Incorporation or By-Laws of the Borrower or any of its
Subsidiaries, (d) will not violate or be in conflict with, result in a breach
of, or constitute (with due notice or lapse of time or both) a default under,
any material indenture, bond, note, instrument or any other material agreement
to which the Borrower or any of its Subsidiaries is a party or by which the
Borrower or any of its Subsidiaries or any of their respective properties or
assets are bound and (e) will not result in the creation or imposition of any
Lien upon any property or assets of the Borrower or any of its Subsidiaries
other than pursuant to this Agreement or any other Fundamental Document.
SECTION 3.3. GOVERNMENTAL AND OTHER APPROVAL AND CONSENTS.
No action, consent or approval of, or registration or filing
with, or any other action by, any governmental agency, bureau, commission or
court is required in connection with the execution, delivery and performance by
the Borrower of this Agreement or the other Fundamental Documents.
SECTION 3.4. FINANCIAL STATEMENTS OF BORROWER.
The (a) audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries as of December 31, 2000 and December
31, 2001, and (b) unaudited consolidated balance sheets of the Borrower and its
Consolidated Subsidiaries as of March 31, 2002, June 30, 2002, and September 30,
2002, together with the related unaudited statements of income, shareholders'
equity and cash flows for such periods, fairly present the financial condition
of the Borrower and its Consolidated Subsidiaries as at the dates indicated and
the results of operations and cash flows for the periods indicated in conformity
with GAAP subject to normal year-end adjustments in the case of the March 31,
2002, June 30, 2002 and September 30, 2002 financial statements.
SECTION 3.5. NO MATERIAL ADVERSE CHANGE.
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 from that disclosed in the audited
consolidated financial statements (including the footnotes thereto) of the
Borrower referred to in Section 3.4 for its 2001 fiscal year.
46
SECTION 3.6. [RESERVED].
SECTION 3.7. COPYRIGHTS, PATENTS AND OTHER RIGHTS.
Each of the Borrower and its Subsidiaries owns, or is licensed
to use, all trademarks, tradenames, 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.
SECTION 3.8. TITLE TO PROPERTIES.
Each of the Borrower and its Material Subsidiaries will have
at the Closing Date good title or valid leasehold interests to each of the
properties and assets reflected on the balance sheets referred to in Section
3.4, 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, and all such properties and assets will be free and
clear of Liens, except Permitted Encumbrances.
SECTION 3.9. LITIGATION.
(a) Except for the Disclosed Matters, there are no
lawsuits or other proceedings pending (including, but not limited to, matters
relating to Environmental Law and Environmental Liability), or, to the knowledge
of the Borrower, threatened, against or affecting the Borrower or any of its
Subsidiaries or any of their respective properties, by or before any
Governmental Authority or arbitrator, which could reasonably be expected to have
a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries is
in default with respect to any order, writ, injunction, decree, rule or
regulation of any Governmental Authority, which default would have a Material
Adverse Effect.
SECTION 3.10. FEDERAL RESERVE REGULATIONS.
Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans will be used, whether immediately, incidentally or
ultimately, for any purpose violative of or inconsistent with any of the
provisions of Regulation T, U or X of the Board.
SECTION 3.11. INVESTMENT COMPANY ACT.
The Borrower is not, and will not during the term of this
Agreement be, (x) an "investment company" subject to regulation under the
Investment Company Act of 1940, as amended or (y) subject to regulation under
the Public Utility Holding Company Act of 1935 or the Federal Power Act.
47
SECTION 3.12. ENFORCEABILITY.
This Agreement and the other Fundamental Documents when
executed by all parties hereto will constitute legal, valid and binding
obligations (as applicable) of the Borrower (enforceable in accordance with its
terms subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law).
SECTION 3.13. TAXES.
The Borrower and each of its Subsidiaries has filed or caused
to be filed all federal, state and local tax returns which are required to be
filed, and has paid or has caused to be paid all taxes as shown on said returns
or on any assessment received by them in writing, to the extent that such taxes
have become due, except (a) as permitted by Section 5.4 hereof or (b) to the
extent that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.14. COMPLIANCE WITH ERISA.
No ERISA Event has occurred or is reasonably expected to occur
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. Each of the Borrower and its Subsidiaries is in
compliance in all material respects with the provisions of ERISA and the Code
applicable to Plans, and the regulations and published interpretations
thereunder, if any, which are applicable to it. Neither the Borrower nor any of
its Subsidiaries has, with respect to any Plan established or maintained by it,
engaged in a prohibited transaction which would subject it to a material tax or
penalty on prohibited transactions imposed by ERISA or Section 4975 of the Code.
Neither the Borrower nor any of its Subsidiaries has engaged in a transaction
which would result in the incurrence of a material liability under Section 4069
of ERISA. 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) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $200,000,000
the fair market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed by more than $200,000,000 the fair market value of the
assets of all such underfunded Plans.
SECTION 3.15. DISCLOSURE.
As of the Closing Date, neither this Agreement nor the
Confidential Information Memorandum dated October 2002, at the time it was
furnished, contained any untrue statement of a material fact or omitted to state
a material fact, under the circumstances under which it was made, necessary in
order to make the statements contained herein or therein not misleading. At the
Closing Date, there is no fact known to the Borrower which, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect. The Borrower has delivered
48
to the Administrative Agent certain projections relating to the Borrower and its
Consolidated Subsidiaries. Such projections are based on good faith estimates
and assumptions believed to be reasonable at the time made, PROVIDED, HOWEVER,
that the Borrower makes no representation or warranty that such assumptions will
prove in the future to be accurate or that the Borrower and its Consolidated
Subsidiaries will achieve the financial results reflected in such projections.
SECTION 3.16. ENVIRONMENTAL LIABILITIES.
Except for the Disclosed Matters and except with respect to
any matters, that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) 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, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
4. CONDITIONS OF LENDING
SECTION 4.1. CONDITIONS PRECEDENT TO CLOSING.
The effectiveness of this Agreement is subject to the
following conditions precedent:
(a) LOAN DOCUMENTS. The Administrative Agent shall have
received this Agreement and each of the other Fundamental Documents, each
executed and delivered by a duly authorized officer of the Borrower.
(b) CORPORATE DOCUMENTS FOR THE BORROWER. The
Administrative Agent shall have received, with copies for each of the Lenders, a
certificate of the Secretary or Assistant Secretary of the Borrower dated the
date of the initial Loans and certifying (A) that attached thereto is a true and
complete copy of the certificate of incorporation and by-laws of the Borrower as
in effect on the date of such certification; (B) that attached thereto is a true
and complete copy of resolutions adopted by the Board of Directors of the
Borrower authorizing the borrowings hereunder and the execution, delivery and
performance in accordance with their respective terms of this Agreement and any
other documents required or contemplated hereunder; and (C) as to the incumbency
and specimen signature of each officer of the Borrower executing this Agreement
or any other document delivered by it in connection herewith (such certificate
to contain a certification by another officer of the Borrower as to the
incumbency and signature of the officer signing the certificate referred to in
this paragraph (b)).
(c) FINANCIAL STATEMENTS. The Lenders shall have received
the (a) audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries as of December 31, 2000 and December 31, 2001 and (b)
unaudited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries as of March 31, 2002, June 30, 2002 and September 30, 2002.
(d) OPINIONS OF COUNSEL. The Administrative Agent shall
have received the favorable written opinions, dated the date of the initial
Extension of Credit and addressed to the
49
Administrative Agent and the Lenders, of (i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, counsel to the Borrower, substantially in the form of Exhibit B
hereto, and (ii) ▇▇▇▇ ▇. ▇▇▇▇, Executive Vice President and Corporate Secretary
for the Borrower, substantially in the form of Exhibit B-2 hereto.
(e) NO MATERIAL ADVERSE CHANGE. The Administrative Agent
shall be satisfied that since December 31, 2001 no events and conditions have
occurred that have had, or could reasonably be expected to have, a Material
Adverse Effect.
(f) PAYMENT OF FEES. The Administrative Agent shall be
satisfied that all amounts payable to the Administrative Agent and the other
Lenders pursuant hereto or with regard to the transactions contemplated hereby
have been or are simultaneously being paid.
(g) LITIGATION; APPROVAL. No litigation shall be pending
or threatened which would be likely to have a Material Adverse Effect, or which
could reasonably be expected to materially adversely affect the ability of the
Borrower to fulfill its obligations hereunder or to otherwise materially impair
the interests of the Lenders.
(h) EXISTING CREDIT AGREEMENTS. (a) All obligations of
the Borrower under the $1,150,000,000 Amended and Restated Credit Agreement,
dated as of October 5, 2001, as amended, among the Borrower, the lenders named
therein and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
administrative agent (the "EXISTING REVOLVING CREDIT AGREEMENT") shall have been
paid in full, the commitments of the lenders pursuant to the Existing Revolving
Credit Agreement shall have been terminated and all obligations relating to
Existing Letters of Credit set forth on Schedule 2.23 shall have been terminated
or the Existing Letters of Credit shall be continued as Letters of Credit
hereunder, and (b) all obligations of the Borrower under the $1,750,000,000
Three Year Competitive Advance and Revolving Credit Agreement, dated as of
August 29, 2000, as amended, among the Borrower, the lenders named therein and
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
administrative agent (the "EXISTING SETTLEMENT L/C CREDIT AGREEMENT") shall have
been paid in full and the commitments of the lenders pursuant to the Existing
Settlement L/C Credit Agreement shall have been terminated.
(i) OFFICER'S CERTIFICATE. The Administrative Agent shall
have received a certificate of the Borrower's chief executive officer or chief
financial officer certifying, as of the Closing Date, compliance with the
conditions set forth in paragraphs (b) and (c) of Section 4.2.
(j) OTHER DOCUMENTS. The Administrative Agent shall have
received such other documents and certificates as the Administrative Agent may
reasonably require.
SECTION 4.2. CONDITIONS PRECEDENT TO EACH EXTENSION
OF CREDIT.
The obligation of the Lenders to make each Loan and of any
Issuing Lender to issue a Letter of Credit, including the initial Extension of
Credit hereunder, is subject to the following conditions precedent:
(a) NOTICE. The Administrative Agent shall have received
a notice with respect to such Borrowing or Letter of Credit as required by
Section 2 hereof.
50
(b) REPRESENTATIONS AND WARRANTIES. The representations
and warranties set forth in Section 3 hereof (other than those set forth in
Section 3.5, which shall be deemed made only on the Closing Date) and in the
other Fundamental Documents shall be true and correct in all material respects
on and as of the date of each Borrowing or issuance of a Letter of Credit
hereunder (except to the extent that such representations and warranties
expressly relate to an earlier date) with the same effect as if made on and as
of such date; PROVIDED, HOWEVER, that this condition shall not apply to a
Revolving Credit Borrowing which is solely refinancing outstanding Revolving
Credit Loans and which, after giving effect thereto, has not increased the
aggregate amount of outstanding Revolving Credit Loans.
(c) NO EVENT OF DEFAULT. No Event of Default or Default
shall have occurred and be continuing; PROVIDED, HOWEVER, that this condition
shall not apply to a Revolving Credit Borrowing which is solely refinancing
outstanding Revolving Credit Loans and which, after giving effect thereto, has
not increased the aggregate amount of outstanding Revolving Credit Loans.
Each Borrowing and each issuance of a Letter of Credit shall be deemed to be a
representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (b) and (c) of this Section.
5. AFFIRMATIVE COVENANTS
From the date of the initial Loan and for so long as the
Commitments shall be in effect or any amount shall remain outstanding under any
Note or unpaid under this Agreement or there shall be any outstanding L/C
Exposure, the Borrower agrees that, unless the Required Lenders shall otherwise
consent in writing, it will, and will cause each of its Subsidiaries to:
SECTION 5.1. FINANCIAL STATEMENTS, REPORTS, ETC.
The Borrower will furnish to the Administrative Agent and to
each Lender:
(a) As soon as is practicable, but in any event within
100 days after the end of each fiscal year of the Borrower, the audited
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
at the end of, and the related consolidated statements of income, shareholders'
equity and cash flows for such year, and the corresponding figures as at the end
of, and for, the preceding fiscal year, accompanied by an opinion of Deloitte &
Touche LLP or such other independent certified public accountants of recognized
standing as shall be retained by the Borrower and satisfactory to the
Administrative Agent, which report and opinion shall be prepared in accordance
with generally accepted auditing standards relating to reporting and which
report and opinion shall (A) be unqualified as to going concern and scope of
audit and shall state that such financial statements fairly present the
financial condition of the Borrower and its Consolidated Subsidiaries, as at the
dates indicated and the results of the operations and cash flows for the periods
indicated and (B) contain no material exceptions or qualifications except for
qualifications relating to accounting changes (with which such independent
public accountants concur) in response to FASB releases or other authoritative
pronouncements;
(b) As soon as is practicable, but in any event within 55
days after the end of each of the first three fiscal quarters of each fiscal
year, the unaudited consolidated balance sheet
51
of the Borrower and its Consolidated Subsidiaries, as at the end of, and the
related unaudited statements of income (or changes in financial position) for
such quarter and for the period from the beginning of the then current fiscal
year to the end of such fiscal quarter and the corresponding figures as at the
end of, and for, the corresponding period in the preceding fiscal year, together
with a certificate signed by the chief financial officer or a vice president
responsible for financial administration of the Borrower to the effect that such
financial statements, while not examined by independent public accountants,
reflect, in his opinion and in the opinion of the Borrower, all adjustments
necessary to present fairly the financial position of the Borrower and its
Consolidated Subsidiaries, as the case may be, as at the end of the fiscal
quarter and the results of their operations for the quarter then ended in
conformity with GAAP consistently applied, subject only to year-end and audit
adjustments and to the absence of footnote disclosure;
(c) Together with the delivery of the statements referred
to in paragraphs (a) and (b) of this Section 5.1, a certificate of the chief
financial officer or a vice president responsible for financial administration
of the Borrower, substantially in the form of Exhibit D hereto (i) stating
whether or not the signer has knowledge of any Default or Event of Default and,
if so, specifying each such Default or Event of Default of which the signer has
knowledge, the nature thereof and any action which the Borrower has taken, is
taking, or proposes to take with respect to each such condition or event and
(ii) demonstrating in reasonable detail compliance with the provisions of
Sections 6.5 and 6.6 hereof;
(d) With reasonable promptness, copies of such financial
statements and reports that the Borrower may make to, or file with, the SEC and
such other information, certificates and data (including, without limitation,
copies of Letters of Credit) with respect to the Borrower and its Subsidiaries
as from time to time may be reasonably requested by the Administrative Agent or
any of the Lenders;
(e) Promptly upon any executive officer of the Borrower
or any of its Subsidiaries obtaining knowledge of the occurrence of any Default
or Event of Default, a certificate of the president or chief financial officer
of the Borrower specifying the nature and period of existence of such Default or
Event of Default and what action the Borrower has taken, is taking and proposes
to take with respect thereto;
(f) Promptly upon any executive officer of the Borrower
or any of its Subsidiaries obtaining knowledge of (i) the institution of any
action, suit, proceeding, investigation or arbitration by any Governmental
Authority or other Person against or affecting the Borrower or any of its
Subsidiaries or any of their assets, or (ii) any material development in any
such action, suit, proceeding, investigation or arbitration (whether or not
previously disclosed to the Lenders), which, in each case might reasonably be
expected to have a Material Adverse Effect, the Borrower shall promptly give
notice thereof to the Lenders and provide such other information as may be
reasonably available to it (without waiver of any applicable evidentiary
privilege) to enable the Lenders to evaluate such matters; and
(g) Together with each set of financial statements
required by paragraph (a) above, a certificate of the independent certified
public accountants rendering the report and opinion thereon (which certificate
may be limited to the extent required by accounting rules or
52
otherwise) (i) stating whether, in connection with their audit, any Default or
Event of Default has come to their attention, and if such a Default or Event of
Default has come to their attention, specifying the nature and period of
existence thereof, and (ii) stating that based on their audit nothing has come
to their attention which causes them to believe that the matters specified in
paragraph (c)(ii) above for the applicable fiscal year are not stated in
accordance with the terms of this Agreement.
SECTION 5.2. CORPORATE EXISTENCE; COMPLIANCE WITH STATUTES.
Do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its corporate existence, material rights,
licenses, permits and franchises and comply, except where failure to comply,
either individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, with all provisions of Applicable Law, and
all applicable restrictions imposed by, any Governmental Authority, including
without limitation, the Federal Trade Commission's "Disclosure Requirements and
Prohibitions Concerning Franchising and Business Opportunity Ventures" as
amended from time to time (16 C.F.R. ▇▇.▇▇. 436.1 ET SEQ.) and all state laws
and regulations of similar import; PROVIDED, HOWEVER, that mergers, dissolutions
and liquidations permitted under Section 6.2 shall be permitted.
SECTION 5.3. INSURANCE.
Maintain with financially sound and reputable insurers
insurance in such amounts and against such risks as are customarily insured
against by companies in similar businesses; PROVIDED, HOWEVER, that (a)
workmen's compensation insurance or similar coverage may be effected with
respect to its operations in any particular state or other jurisdiction through
an insurance fund operated by such state or jurisdiction and (b) such insurance
may contain self-insurance retention and deductible levels consistent with
normal industry practices.
SECTION 5.4. TAXES AND CHARGES.
Duly pay and discharge, or cause to be paid and discharged,
before the same shall become delinquent, all federal, state or local taxes,
assessments, levies and other governmental charges, imposed upon the Borrower or
any of its Subsidiaries or their respective properties, sales and activities, or
any part thereof, or upon the income or profits therefrom, as well as all claims
for labor, materials, or supplies which if unpaid could reasonably be expected
to result in a Material Adverse Effect; PROVIDED, HOWEVER, that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower shall have set aside on its books reserves (the presentation
of which is segregated to the extent required by GAAP) adequate with respect
thereto if reserves shall be deemed necessary by the Borrower in accordance with
GAAP; and PROVIDED, FURTHER, that the Borrower will pay all such taxes,
assessments, levies or other governmental charges forthwith upon the
commencement of proceedings to foreclose any Lien which may have attached as
security therefor (unless the same is fully bonded or otherwise effectively
stayed).
53
SECTION 5.5. ERISA COMPLIANCE AND REPORTS.
Furnish to the Administrative Agent (a) as soon as possible,
and in any event within 30 days after any executive officer (as defined in
Regulation C under the Securities Act of 1933) of the Borrower knows that any
ERISA Event with respect to any Plan has occurred, a statement of the chief
financial officer of the Borrower, setting forth details as to such ERISA Event
and the action which it proposes to take with respect thereto, together with a
copy of the notice, if any, required to be filed by the Borrower or any of its
Subsidiaries of such ERISA Event with the PBGC, (b) promptly upon the reasonable
request of the Administrative Agent, copies of each annual and other report with
respect to each Plan and (c) promptly after receipt thereof, a copy of any
notice the Borrower or any of its Subsidiaries may receive from the PBGC
relating to the PBGC's intention to terminate any Plan or to appoint a trustee
to administer any Plan; PROVIDED that the Borrower shall not be required to
notify the Administrative Agent of the occurrence of any of the events set forth
in the preceding clauses (a) and (c) unless such event, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect
on the Borrower and its Subsidiaries taken as a whole.
SECTION 5.6. MAINTENANCE OF AND ACCESS TO BOOKS AND RECORDS;
EXAMINATIONS.
Maintain or cause to be maintained at all times true and
complete books and records of its financial operations (in accordance with GAAP)
and provide the Administrative Agent and its representatives reasonable access
to all such books and records and to any of their properties or assets during
regular business hours (PROVIDED that reasonable access to such books and
records and to any of the Borrower's properties or assets shall be made
available to the Lenders if an Event of Default has occurred and is continuing),
in order that the Administrative Agent may make such audits and examinations and
make abstracts from such books, accounts and records and may discuss the
affairs, finances and accounts with, and be advised as to the same by, officers
and independent accountants, all as the Administrative Agent may deem
appropriate for the purpose of verifying the various reports delivered pursuant
to this Agreement or for otherwise ascertaining compliance with this Agreement.
SECTION 5.7. MAINTENANCE OF PROPERTIES.
Keep its properties which are material to its business in good
repair, working order and condition consistent with industry practice.
SECTION 5.8. CHANGES IN CHARACTER OF BUSINESS.
Cause the Borrower and its Subsidiaries taken as a whole to be
primarily engaged in the franchising and services businesses.
6. NEGATIVE COVENANTS
From the date of the initial Loan and for so long as the
Commitments shall be in effect or any amount shall remain outstanding under any
Note or unpaid under this Agreement or there shall be any outstanding L/C
Exposure, unless the Required Lenders shall otherwise consent in writing, the
Borrower agrees that it will not, nor will it permit any of its Subsidiaries to,
directly or indirectly:
54
SECTION 6.1. LIMITATION ON INDEBTEDNESS.
Incur, assume or suffer to exist any Indebtedness of any
Material Subsidiary except:
(a) Indebtedness in existence on the Closing Date, or
required to be incurred pursuant to a contractual obligation in existence on the
Closing Date, which in either case, is listed on Schedule 6.1 hereto, but not
any extensions or renewals thereof, unless effected on substantially the same
terms or on terms not more adverse to the Lenders;
(b) purchase money Indebtedness (including Capital
Leases) to the extent permitted under Section 6.3(b);
(c) Guaranties;
(d) Indebtedness owing by any Material Subsidiary to the
Borrower or any other Subsidiary;
(e) Indebtedness of any Material Subsidiary of the
Borrower issued and outstanding prior to the date on which such Subsidiary
became a Subsidiary of the Borrower (other than Indebtedness issued in
connection with, or in anticipation of, such Subsidiary becoming a Subsidiary of
the Borrower); PROVIDED that immediately prior and on a Pro Forma Basis after
giving effect to, such Person becoming a Subsidiary of the Borrower, no Default
or Event of Default shall occur or then be continuing and the aggregate
principal amount of such Indebtedness, when added to the aggregate outstanding
principal amount of Indebtedness permitted by paragraphs (f) and (g) below,
shall not exceed $400,000,000;
(f) any renewal, extension or modification of
Indebtedness under paragraph (e) above so long (i) as such renewal, extension or
modification is effected on substantially the same terms or on terms which, in
the aggregate, are not more adverse to the Lenders and (ii) the principal amount
of such Indebtedness is not increased;
(g) other Indebtedness of any Material Subsidiary in an
aggregate principal amounts which, when added to the aggregate outstanding
principal amount of Indebtedness permitted by paragraphs (e) and (f) above, does
not exceed $400,000,000; and
(h) any Indebtedness (other than Rental Vehicle
Securitization Indebtedness) of Avis or its Subsidiaries issued, outstanding or
permitted to exist pursuant to the terms of the Avis Debt Documents as of the
date of the Avis Merger and any renewal, extension or modification of such
Indebtedness so long as (i) such renewal, extension or modification is effected
on substantially the same terms or on terms which, in the aggregate, are not
more adverse to the Lenders and (ii) the principal amount of such Indebtedness
issued, outstanding or permitted to exist pursuant to the terms of the Avis Debt
Documents is not increased directly or indirectly;
(i) any Rental Vehicle Securitization Indebtedness;
55
(j) any Indebtedness (other than Timeshare Loan
Indebtedness) of any Timeshare Subsidiary, to the extent issued, outstanding or
permitted to exist pursuant to the terms of any Fairfield Debt Documents as of
the date of the Fairfield Merger, or to the extent issued, outstanding or
permitted to exist pursuant to the terms of any other Timeshare Debt Documents
as of the date of the acquisition of the related Timeshare Subsidiary; and, in
each case, any renewal, extension or modification of such Indebtedness so long
as (i) such renewal, extension or modification is effected on substantially the
same terms or on terms which, in the aggregate, are not more adverse to the
Lenders and (ii) the principal amount of such Indebtedness issued, outstanding
or permitted to exist pursuant to the terms of the Fairfield Debt Documents or
Timeshare Debt Documents, as applicable, is not increased directly or
indirectly;
(k) any Timeshare Loan Indebtedness;
(l) without limiting any of the foregoing, Indebtedness
incurred in connection with the acquisition by the Borrower or any of its
Subsidiaries of vehicles directly from a manufacturer pursuant to such
manufacturer's repurchase program, PROVIDED that (i) such Indebtedness is not
greater than the net book value of such vehicles and (ii) such vehicles could
not be financed under the AESOP Financing Program; and
(m) in addition to the Indebtedness permitted by
paragraphs (a) - (l) above, Indebtedness of PHH and its Subsidiaries so long as,
after giving effect to the incurrence of such Indebtedness and the use of the
proceeds thereof, the ratio of Indebtedness (other than Rental Vehicle
Securitization Indebtedness and Timeshare Loan Indebtedness) of PHH and its
Subsidiaries to consolidated shareholders' equity of PHH is less than 8 to 1.
SECTION 6.2. CONSOLIDATION, MERGER, SALE OF ASSETS.
(a) Neither the Borrower nor any of its Material
Subsidiaries (in one transaction or series of transactions) will wind up,
liquidate or dissolve its affairs, or enter into any transaction of merger or
consolidation, except any merger, consolidation, dissolution or liquidation (i)
in which the Borrower is the surviving entity or if the Borrower is not a party
to such transaction then a Subsidiary is the surviving entity or the successor
to the Borrower has unconditionally assumed in writing all of the payment and
performance obligations of the Borrower under this Agreement and the other
Fundamental Documents, (ii) in which the surviving entity becomes a Subsidiary
of the Borrower immediately upon the effectiveness of such merger,
consolidation, dissolution or liquidation, or (iii) involving a Subsidiary in
connection with a transaction permitted by Section 6.2(b); PROVIDED, HOWEVER,
that immediately prior to and on a Pro Forma Basis after giving effect to any
such transaction described in any of the preceding clauses (i), (ii) and (iii)
no Default or Event of Default has occurred and is continuing.
(b) The Borrower and its Subsidiaries (either
individually or collectively and whether in one transaction or series of related
transactions) will not sell or otherwise dispose of all or substantially all of
the assets of the Borrower and its Subsidiaries, taken as a whole.
56
SECTION 6.3. LIMITATIONS ON LIENS.
Suffer any Lien on the property of the Borrower or any of the
Material Subsidiaries, except:
(a) deposits under worker's compensation, unemployment
insurance and social security laws or to secure statutory obligations or surety
or appeal bonds or performance or other similar bonds in the ordinary course of
business, or statutory Liens of landlords, carriers, warehousemen, mechanics and
material men and other similar Liens, in respect of liabilities which are not
yet due or which are being contested in good faith, Liens for taxes not yet due
and payable, and Liens for taxes due and payable, the validity or amount of
which is currently being contested in good faith by appropriate proceedings and
as to which foreclosure and other enforcement proceedings shall not have been
commenced (unless fully bonded or otherwise effectively stayed);
(b) purchase money Liens granted to the vendor or Person
financing the acquisition of property, plant or equipment if (i) limited to the
specific assets acquired and, in the case of tangible assets, other property
which is an improvement to or is acquired for specific use in connection with
such acquired property or which is real property being improved by such acquired
property; (ii) the debt secured by the Lien is the unpaid balance of the
acquisition cost of the specific assets on which the Lien is granted; and (iii)
such transaction does not otherwise violate this Agreement;
(c) Liens upon real and/or personal property, which
property was acquired after the Closing Date (by purchase, construction or
otherwise) by the Borrower or any of its Material Subsidiaries, each of which
Liens existed on such property before the time of its acquisition and was not
created in anticipation thereof; PROVIDED, HOWEVER, that no such Lien shall
extend to or cover any property of the Borrower or such Material Subsidiary
other than the respective property so acquired and improvements thereon;
(d) Liens arising out of attachments, judgments or awards
as to which an appeal or other appropriate proceedings for contest or review are
promptly commenced (and as to which foreclosure and other enforcement
proceedings (i) shall not have been commenced (unless fully bonded or otherwise
effectively stayed) or (ii) in any event shall be promptly fully bonded or
otherwise effectively stayed);
(e) Liens created under any Fundamental Document;
(f) Liens existing on the Closing Date and any extensions
or renewals thereof;
(g) any Liens arising on Timeshare Properties securing
obligations which finance the acquisition, construction or creation of such
Timeshare Properties;
(h) INTENTIONALLY OMITTED;
(i) other Liens securing obligations having an aggregate
principal amount not to exceed 15% of Consolidated Net Worth;
57
(j) any Liens securing Indebtedness and related
obligations of the Borrower or any of its Material Subsidiaries to the extent
such Indebtedness and related obligations are permitted under Section 6.1(h)
hereof;
(k) any Liens securing Indebtedness and related
obligations of the Borrower or any of its Material Subsidiaries to the extent
such Indebtedness and related obligations are permitted under Section 6.1(i)
hereof;
(l) any Liens securing Indebtedness and related
obligations of the Borrower or any of its Material Subsidiaries to the extent
such Indebtedness and related obligations are permitted under Section 6.1(j)
hereof; and
(m) any Liens securing Indebtedness and related
obligations of the Borrower or any of its Material Subsidiaries to the extent
such Indebtedness and related obligations are permitted under Section 6.1(k)
hereof.
SECTION 6.4. SALE AND LEASEBACK.
Enter into any arrangement with any Person or Persons, whereby
in contemporaneous transactions the Borrower or any of its Subsidiaries sells
essentially all of its right, title and interest in a material asset and the
Borrower or any of its Subsidiaries acquires or leases back the right to use
such property except that the Borrower and its Subsidiaries may enter into
sale-leaseback transactions relating to assets not in excess of $350,000,000 in
the aggregate on a cumulative basis, and except (a) any arrangements of
Fairfield or any of its Subsidiaries existing as of the date of the Fairfield
Merger and any renewals, extensions or modifications thereof, or replacements or
substitutions therefor, so long as such renewals, extensions or modifications
are effected on substantially the same terms or on terms which, in the
aggregate, are not more adverse to the Lenders in any material respect, (b) in
connection with the issuance of Rental Vehicle Securitization Indebtedness and
(c) in connection with Permitted Timeshare Collateral.
SECTION 6.5. DEBT TO CAPITALIZATION RATIO.
Permit the Debt to Capitalization Ratio on the last day of any
fiscal quarter to be greater than 0.5 to 1.
SECTION 6.6. INTEREST COVERAGE RATIO.
Permit the Interest Coverage Ratio for any Rolling Period to
be less than 3.0 to 1.0.
SECTION 6.7. ACCOUNTING PRACTICES.
Establish a fiscal year ending on any date other than December
31, or modify or change accounting treatments or reporting practices except as
otherwise required or permitted by GAAP or the SEC.
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7. EVENTS OF DEFAULT
In the case of the happening and during the continuance of any
of the following events (herein called "EVENTS OF DEFAULT"):
(a) any representation or warranty made by the Borrower
in this Agreement or any other Fundamental Document or in connection with this
Agreement or with the execution and delivery of the Notes or the Borrowings
hereunder, or any statement or representation made in any report, financial
statement, certificate or other document furnished by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or any Lender
under or in connection with this Agreement, shall prove to have been false or
misleading in any material respect when made or delivered;
(b) default shall be made in the payment of any principal
of or interest on any Loan, any reimbursement obligation with respect to Letters
of Credit, the Notes or of any fees or other amounts payable by the Borrower
hereunder, when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise, and in the case of payments of interest, such default
shall continue unremedied for five days, and in the case of payments other than
of any principal amount of or interest on any Loan, any reimbursement obligation
with respect to Letters of Credit, or the Notes, such default shall continue
unremedied for five days after receipt by the Borrower of an invoice therefor;
(c) default shall be made in the due observance or
performance of any covenant, condition or agreement contained in Section 5.1(e)
(with respect to notice of Default or Events of Default), 5.8 or Section 6 of
this Agreement;
(d) default shall be made by the Borrower in the due
observance or performance of any other covenant, condition or agreement to be
observed or performed pursuant to the terms of this Agreement, or any other
Fundamental Document and such default shall continue unremedied for thirty (30)
days after the Borrower obtains knowledge of such occurrence;
(e) (i) default in payment shall be made with respect to
any Indebtedness of the Borrower or any of its Subsidiaries (other than
Securitization Indebtedness) where the amount or amounts of such Indebtedness
exceeds $50,000,000 in the aggregate; or (ii) default in payment or performance
shall be made with respect to any Indebtedness of the Borrower or any of its
Subsidiaries (other than Securitization Indebtedness) where the amount or
amounts of such Indebtedness exceeds $50,000,000 in the aggregate, if the effect
of such default is to result in the acceleration of the maturity of such
Indebtedness; or (iii) any other circumstance shall arise (other than the mere
passage of time) by reason of which the Borrower or any Subsidiary of the
Borrower is required to redeem or repurchase, or offer to holders the
opportunity to have redeemed or repurchased, any such Indebtedness (other than
Securitization Indebtedness) where the amount or amounts of such Indebtedness
exceeds $50,000,000 in the aggregate; PROVIDED that clause (iii) shall not apply
to secured Indebtedness that becomes due as a result of a voluntary sale of the
property or assets securing such Indebtedness and PROVIDED, FURTHER that clauses
(ii) and (iii) shall not apply to any Indebtedness of any Subsidiary issued and
outstanding prior to the
59
date such Subsidiary became a Subsidiary of the Borrower (other than
Indebtedness issued in connection with, or in anticipation of, such Subsidiary
becoming a Subsidiary of the Borrower) if such default or circumstance arises
solely as a result of a "change of control" provision applicable to such
Indebtedness which becomes operative as a result of the acquisition of such
Subsidiary by the Borrower or any of its Subsidiaries;
(f) the Borrower or any of its Material Subsidiaries
shall generally not pay its debts as they become due or shall admit in writing
its inability to pay its debts, or shall make a general assignment for the
benefit of creditors; or the Borrower or any of its Material Subsidiaries shall
commence any case, proceeding or other action seeking to have an order for
relief entered on its behalf as debtor or to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property or shall file an answer or
other pleading in any such case, proceeding or other action admitting the
material allegations of any petition, complaint or similar pleading filed
against it or consenting to the relief sought therein; or the Borrower or any
Material Subsidiary thereof shall take any action to authorize any of the
foregoing;
(g) any involuntary case, proceeding or other action
against the Borrower or any of its Material Subsidiaries shall be commenced
seeking to have an order for relief entered against it as debtor or to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property, and such case,
proceeding or other action (i) results in the entry of any order for relief
against it or (ii) shall remain undismissed for a period of sixty (60) days;
(h) the occurrence of a Change in Control;
(i) final judgment(s) for the payment of money in excess
of $50,000,000 shall be rendered against the Borrower or any of its Subsidiaries
which within thirty (30) days from the entry of such judgment shall not have
been discharged or stayed pending appeal or which shall not have been discharged
within thirty (30) days from the entry of a final order of affirmance on appeal;
or
(j) an ERISA Event shall have occurred that, when taken
together with all other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect;
then, in every such event and at any time thereafter during the continuance of
such event, the Administrative Agent may or shall, if directed by the Required
Lenders, take either or both of the following actions, at the same or different
times: terminate forthwith the Commitments and/or declare the principal of and
the interest on the Loans and the Notes and all other amounts payable hereunder
or thereunder to be forthwith due and payable, whereupon the same shall become
and be forthwith due and payable, without presentment, demand, protest, notice
of acceleration, notice of intent to accelerate or other notice of any kind, all
of which are hereby expressly waived, anything in this Agreement or in the Notes
to the contrary notwithstanding. If an Event of Default specified in paragraphs
(f) or (g) above shall have occurred, the principal of and interest on the Loans
and the Notes and all other amounts payable hereunder or thereunder shall
thereupon and concurrently become due and payable without presentment, demand,
protest, notice of acceleration, notice of intent to accelerate or other notice
of any kind, all of which are hereby
60
expressly waived, anything in this Agreement or the Notes to the contrary
notwithstanding and the Commitments of the Lenders shall thereupon forthwith
terminate.
8. THE ADMINISTRATIVE AGENT AND EACH ISSUING LENDER
SECTION 8.1. ADMINISTRATION BY ADMINISTRATIVE AGENT.
The general administration of the Fundamental Documents and
any other documents contemplated by this Agreement shall be by the
Administrative Agent or its designees. Each of the Lenders hereby irrevocably
authorizes the Administrative Agent, at its discretion, to take or refrain from
taking such actions as agent on its behalf and to exercise or refrain from
exercising such powers under the Fundamental Documents, the Notes and any other
documents contemplated by this Agreement as are delegated by the terms hereof or
thereof, as appropriates together with all powers reasonably incidental thereto.
The Administrative Agent shall have no duties or responsibilities except as set
forth in the Fundamental Documents. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default or Event of Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing as directed by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.9), and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries or Affiliates that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.9) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Section 4 or elsewhere herein. Any Lender which is not the
Administrative Agent (regardless of whether such Lender bears the title of any
other Agent or any similar title, as indicated on the signature pages hereto)
for the credit facility hereunder shall not have any duties or responsibilities
except as a Lender hereunder.
61
SECTION 8.2. ADVANCES AND PAYMENTS.
(a) On the date of each Loan, the Administrative Agent
shall be authorized (but not obligated) to advance, for the account of each of
the Lenders, the amount of the Loan to be made by it in accordance with this
Agreement. Each of the Lenders hereby authorizes and requests the Administrative
Agent to advance for its account, pursuant to the terms hereof, the amount of
the Loan to be made by it, unless with respect to any Lender, such Lender has
theretofore specifically notified the Administrative Agent that such Lender does
not intend to fund that particular Loan. Each of the Lenders agrees forthwith to
reimburse the Administrative Agent in immediately available funds for the amount
so advanced on its behalf by the Administrative Agent pursuant to the
immediately preceding sentence. If any such reimbursement is not made in
immediately available funds on the same day on which the Administrative Agent
shall have made any such amount available on behalf of any Lender in accordance
with this Section 8.2, such Lender shall pay interest to the Administrative
Agent at a rate per annum equal to the Administrative Agent's cost of obtaining
overnight funds in the New York Federal Funds Market. Notwithstanding the
preceding sentence, if such reimbursement is not made by the second Business Day
following the day on which the Administrative Agent shall have made any such
amount available on behalf of any Lender or such Lender has indicated that it
does not intend to reimburse the Administrative Agent, the Borrower shall
immediately pay such unreimbursed advance amount (plus any accrued, but unpaid
interest at the rate applicable to ABR Loans) to the Administrative Agent.
(b) Any amounts received by the Administrative Agent in
connection with this Agreement or the Notes the application of which is not
otherwise provided for shall be applied, in accordance with each of the Lenders'
pro rata interest therein, first, to pay accrued but unpaid Facility Fees,
second, to pay accrued but unpaid interest on the Notes, third, the principal
balance outstanding on the Notes and fourth, to pay other amounts payable to the
Administrative Agent and/or the Lenders. All amounts to be paid to any of the
Lenders by the Administrative Agent shall be credited to the Lenders, promptly
after collection by the Administrative Agent, in immediately available funds
either by wire transfer or deposit in such Lender's correspondent account with
the Administrative Agent, or as such Lender and the Administrative Agent shall
from time to time agree.
SECTION 8.3. SHARING OF SETOFFS AND CASH COLLATERAL.
Each of the Lenders agrees that if it shall, through the
operation of Sections 2.19, 2.23(h) or 2.23(i) hereof or the exercise of a right
of bank's lien, setoff or counterclaim against the Borrower, including, but not
limited to, a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim and received by such Lender under any applicable bankruptcy, insolvency or
other similar law, or otherwise, obtain payment in respect of its Loans or L/C
Exposure as a result of which the unpaid portion of its Loans or L/C Exposure is
proportionately less than the unpaid portion of any of the other Lenders (a) it
shall promptly purchase at par (and shall be deemed to have thereupon purchased)
from such other Lenders a participation in the Loans or L/C Exposure of such
other Lenders, so that the aggregate unpaid principal amount of each of the
Lenders' Loans and L/C Exposure and its participation in Loans and L/C Exposure
of the other Lenders shall be in the same proportion to the aggregate unpaid
principal amount of all Loans and L/C Exposure
62
then outstanding as the principal amount of its Loans and L/C Exposure prior to
the obtaining of such payment was to the principal amount of all Loans and L/C
Exposure outstanding prior to the obtaining of such payment and (b) such other
adjustments shall be made from time to time as shall be equitable to ensure that
the Lenders share such payment pro rata.
SECTION 8.4. NOTICE TO THE LENDERS.
Upon receipt by the Administrative Agent from the Borrower of
any communication calling for an action on the part of the Lenders, or upon
notice to the Administrative Agent of any Event of Default, the Administrative
Agent will in turn immediately inform the other Lenders (including any Issuing
Lender) in writing (which shall include telegraphic communications) of the
nature of such communication or of the Event of Default, as the case may be.
SECTION 8.5. LIABILITY OF ADMINISTRATIVE AGENT AND EACH
ISSUING LENDER.
(a) The Administrative Agent or any Issuing Lender, when
acting on behalf of the Lenders may execute any of its duties under this
Agreement by or through its officers, agents, or employees and neither the
Administrative Agent, the Issuing Lenders nor their respective directors,
officers, agents, or employees shall be liable to the Lenders or any of them for
any action taken or omitted to be taken in good faith, or be responsible to the
Lenders or to any of them for the consequences of any oversight or error of
judgment, or for any loss, unless the same shall happen through its gross
negligence or willful misconduct. The Administrative Agent, the Issuing Lenders
and their respective directors, officers, agents, and employees shall in no
event be liable to the Lenders or to any of them for any action taken or omitted
to be taken by it pursuant to instructions received by it from the Required
Lenders or in reliance upon the advice of counsel selected by it. Without
limiting the foregoing, neither the Administrative Agent, the Issuing Lenders
nor any of their respective directors, officers, employees, or agents shall be
responsible to any of the Lenders for the due execution, validity, genuineness,
effectiveness, sufficiency, or enforceability of, or for any statement,
warranty, or representation in, or for the perfection of any security interest
contemplated by, this Agreement or any related agreement, document or order, or
for the designation or failure to designate this transaction as a "Highly
Leveraged Transaction" for regulatory purposes, or shall be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants, or agreements of this
Agreement or any related agreement or document.
(b) Neither the Administrative Agent, the Issuing
Lenders, nor any of their respective directors, officers, employees, or agents
shall have any responsibility to the Borrower on account of the failure or delay
in performance or breach by any of the Lenders or the Borrower of any of their
respective obligations under this Agreement or the Notes or any related
agreement or document or in connection herewith or therewith.
(c) The Administrative Agent, and the Issuing Lenders, in
such capacities hereunder, shall be entitled to rely on any communication,
instrument, or document reasonably believed by it to be genuine or correct and
to have been signed or sent by a Person or Persons believed by it to be the
proper Person or Persons, and it shall be entitled to rely on advice of legal
63
counsel, independent public accountants, and other professional advisers and
experts selected by it.
SECTION 8.6. REIMBURSEMENT AND INDEMNIFICATION.
Each of the Lenders severally and not jointly agrees (to the
extent not reimbursed or otherwise paid by the Borrower (pursuant to Section 9.5
hereof)) (i) to reimburse the Administrative Agent, in the amount of its
proportionate share of the Total Commitment in effect on the date on which such
reimbursement is sought (or, if reimbursement is sought after the date upon
which the Total Commitment shall have been terminated in its entirety, in the
amount of its proportionate share of the Total Commitment immediately prior to
such date), for any expenses and fees incurred for the benefit of the Lenders
under the Fundamental Documents, including, without limitation, counsel fees and
compensation of agents and employees paid for services rendered on behalf of the
Lenders, and any other expense incurred in connection with the administration or
enforcement thereof; (ii) to indemnify and hold harmless the Administrative
Agent and any of its directors, officers, employees, or agents, on demand, in
the amount of its proportionate share of the Total Commitment in effect on the
date on which such indemnification is sought (or, if indemnification is sought
after the date upon which the Total Commitment shall have been terminated in its
entirety, in the amount of its proportionate share of the Total Commitment
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against it or any of them in any way relating to or
arising out of the Fundamental Documents or any action taken or omitted by it or
any of them under the Fundamental Documents to the extent not reimbursed by the
Borrower or one of its Subsidiaries (except such as shall result from the gross
negligence or willful misconduct of the Person seeking indemnification); and
(iii) to indemnify and hold harmless the Issuing Lenders and any of their
respective directors, officers, employees, or agents or demand in the amount of
its proportionate share from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs expenses or
disbursements of any kind or nature whatever which may be imposed or incurred by
or asserted against it relating to or arising out of the issuance of any Letters
of Credit not reimbursed by the Borrower or one of its Subsidiaries (except such
as shall result from the gross negligence or willful misconduct of the Person
seeking indemnification).
SECTION 8.7. RIGHTS OF ADMINISTRATIVE AGENT.
It is understood and agreed that JPMorgan Chase Bank shall
have the same rights and powers hereunder (including the right to give such
instructions) as the other Lenders and may exercise such rights and powers, as
well as its rights and powers under other agreements and instruments to which it
is or may be party, and engage in other transactions with the Borrower or any
Subsidiary or other Affiliate thereof as though it were not the Administrative
Agent on behalf of the Lenders under this Agreement.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent; PROVIDED that no such delegation shall
limit or reduce in any way the Administrative Agent's duties and obligations to
the Borrower under this Agreement. The Administrative Agent
64
and any such sub-agent, and any Affiliate of the Administrative Agent or any
such sub-agent, may perform any and all its duties and exercise its rights and
powers through their respective directors, officers, employees, agents and
advisors. The exculpatory provisions of Section 8.5 shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
SECTION 8.8. INDEPENDENT INVESTIGATION BY LENDERS.
Each of the Lenders acknowledges that it has decided to enter
into this Agreement and to make the Loans and issue and participate in the
Letters of Credit hereunder, and will continue to make such decisions, based on
its own analysis of the transactions contemplated hereby, based on such
documents and other information as it has deemed appropriate and on the
creditworthiness of the Borrower and agrees that neither the Administrative
Agent nor any Issuing Lender shall bear responsibility therefor.
SECTION 8.9. NOTICE OF TRANSFER.
The Administrative Agent and the Issuing Lenders may deem and
treat any Lender which is a party to this Agreement as the owners of such
Lender's respective portions of the Loans and Letter of Credit reimbursement
rights for all purposes, unless and until a written notice of the assignment or
transfer thereof executed by any such Lender shall have been received by the
Administrative Agent and become effective pursuant to Section 9.3.
SECTION 8.10. SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
Administrative Agent from among the Lenders. If no successor Administrative
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation, the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent, which with
the consent of the Borrower, which will not be unreasonably withheld, shall be a
commercial bank organized or licensed 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 Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Section 8
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
SECTION 8.11. RESIGNATION OF AN ISSUING LENDER.
Any Issuing Lender may resign at any time by giving written
notice thereof to the Lenders and the Borrower. Upon any such resignation, such
Issuing Lender shall be discharged
65
from any duties and obligations under this Agreement in its capacity as an
Issuing Lender with regard to Letters of Credit not yet issued. After any
retiring Issuing Lender's resignation hereunder as an Issuing Lender, the
provisions of this Agreement shall continue to inure to its benefit as to any
outstanding Letters of Credit or otherwise with regard to outstanding L/C
Exposure and any actions taken or omitted to be taken by it while it was an
Issuing Lender under this Agreement.
SECTION 8.12. AGENTS GENERALLY.
Except as expressly set forth herein, no Agent shall have any
duties or responsibilities hereunder in its capacity as such; and shall incur no
liability, under this Agreement and the other Fundamental Documents.
9. MISCELLANEOUS
SECTION 9.1. NOTICES.
(a) Notices and other communications provided for herein shall
be in writing and shall be delivered or mailed (or in the case of telegraphic
communication, if by telegram, delivered to the telegraph company and, if by
telex, telecopy, graphic scanning or other telegraphic communications equipment
of the sending party hereto, delivered by such equipment) addressed as follows:
(i) if to the Administrative Agent, to it at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Facsimile No. 212-552-7500), with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Facsimile
No. 212-270-3279);
(ii) if to the Borrower, to it at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer
(Facsimile No. 212-413-1931), ▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President and
Corporate Secretary (Facsimile No. 212-413-1922) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Executive Vice-President and Treasurer (Facsimile No. 973-496-0690),
with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ (Facsimile No.
917-777-2868);
(iii) if to a Lender, to it at its address notified
to the Administrative Agent (or set forth in its Assignment and
Acceptance or other agreement pursuant to which it became a Lender
hereunder); and
(iv) if to JPMorgan Chase Bank, in its capacity as
Issuing Lender, to it at JPMorgan Chase Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Facsimile
No. 212-552-5662) or if to any other Issuing Lender, at the address for
notices as such Issuing Lender provides in accordance with this Section
9.1 ;
or such other address as such party may from time to time designate by
giving written notice to the other parties hereunder.
66
(b) Any party hereto may change its address or telecopy
number and other communications hereunder for notices and other communications
hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt.
(c) Notices and other communication to the Lenders
hereunder may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; PROVIDED that the foregoing
shall not apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; PROVIDED that approval of such procedures may be
limited to particular notices or communications.
SECTION 9.2. SURVIVAL OF AGREEMENT, REPRESENTATIONS AND
WARRANTIES, ETC.
All warranties, representations and covenants made by the
Borrower herein or in any certificate or other instrument delivered by it or on
its behalf in connection with this Agreement shall be considered to have been
relied upon by the Administrative Agent and the Lenders and shall survive the
making of the Loans herein contemplated and the issuance and delivery to the
Administrative Agent of the Notes regardless of any investigation made by the
Administrative Agent or the Lenders or on their behalf and shall continue in
full force and effect so long as any amount due or to become due hereunder is
outstanding and unpaid and so long as the Commitment has not been terminated.
All statements in any such certificate or other instrument shall constitute
representations and warranties by the Borrower hereunder.
SECTION 9.3. SUCCESSORS AND ASSIGNS; SYNDICATIONS; LOAN
SALES; PARTICIPATIONS.
(a) Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
assigns of such party (PROVIDED, HOWEVER, that the Borrower may not assign its
rights hereunder without the prior written consent of all the Lenders), and all
covenants, promises and agreements by, or on behalf of, the Borrower which are
contained in this Agreement shall inure to the benefit of the successors and
assigns of the Lenders.
(b) Each of the Lenders may (but only with the prior
written consent of the Administrative Agent, the Issuing Lenders and the
Borrower, which consents shall not be unreasonably withheld or delayed, PROVIDED
that the consent of the Borrower shall not be required if a Default has occurred
and is continuing) assign to one or more banks or other entities either (i) all
or a portion of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment and the same
portion of the Loans at the time owing to it and the Notes held by it and its
L/C Exposure) (a "RATABLE ASSIGNMENT") or (ii) all or a portion of its rights
and obligations under and in respect of (A) its Commitment under this Agreement
and the same portion of the Revolving Credit Loans at the time owing to it and
its L/C Exposure or (B) the Competitive Loans at the time owing to it
(including, without limitation, in the case of any such type of Loan, the same
portion of the associated Note) (a
67
"NON-RATABLE ASSIGNMENT"); PROVIDED, HOWEVER, that (1) each Non-Ratable
Assignment shall be of a constant, and not a varying, percentage of all of the
assigning Lender's rights and obligations in respect of the Loans, L/C Exposure
and the Commitment (if applicable) which are the subject of such assignment, (2)
each Ratable Assignment shall be of a constant, and not a varying, percentage of
the assigning Lender's rights and obligations under this Agreement, (3) the
amount of the Commitment or Competitive Loans, as the case may be, of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Lender) shall be in a minimum principal amount of $1,000,000 (or, if less, the
remaining portion of the assigning Lender's rights and obligations under this
Agreement) unless otherwise agreed by the Borrower and the Administrative Agent
and (4) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register (as
defined below), an Assignment and Acceptance, together with any Note or Notes
subject to such assignment (if required hereunder) and a processing and
recordation fee of $3,500. Upon such execution, delivery, acceptance and
recording, and from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be not earlier than five Business
Days (or such shorter period approved by the Administrative Agent) after the
date of acceptance and recording by the Administrative Agent, (x) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and (y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of the assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto).
(c) Notwithstanding the other provisions of this Section
9.3, each Lender may at any time make a Ratable Assignment or a Non-Ratable
Assignment of its interests, rights and obligations under this Agreement to (i)
any Affiliate of such Lender or (ii) any other Lender hereunder.
(d) By executing and delivering an Assignment and
Acceptance, the assigning Lender thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i) other
than the representation and warranty that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim, the
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 the Fundamental
Documents or any other instrument or document furnished pursuant hereto or
thereto; (ii) such Lender assignor 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 Fundamental Documents; (iii) such assignee confirms that
it has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Sections 5.1(a) and 5.1(b) (or
if none of such financial statements shall have then been delivered, then copies
of the financial statements referred to in Section 3.4 hereof) 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 assigning
68
Lender, the Administrative 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; (v)
such assignee appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Fundamental
Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will be bound by the provisions of this Agreement and
will perform in accordance with its terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(e) The Administrative Agent, on behalf of the Borrower,
shall maintain at its address at which notices are to be given to it pursuant to
Section 9.1, a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amount of the Loans owing to, each Lender from
time to time (the "REGISTER"). The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Administrative Agent,
the Issuing Lenders and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Fundamental Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being made
in the Register. 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.
(f) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee, any Notes subject to such
assignment (if required hereunder) and the processing and recordation fee, the
Administrative Agent (subject to the right, if any, of the Borrower to require
its consent thereto) shall, if such Assignment and Acceptance has been completed
and is substantially in 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 written notice thereof to the Borrower. If a portion of
the Commitment has been assigned by an assigning Lender, then such Lender shall
deliver its Revolving Credit Note, if any, at the same time it delivers the
applicable Assignment and Acceptance to the Administrative Agent. If only
Competitive Loans have been assigned by the assigning Lender, such Lender shall
not be required to deliver its Competitive Note to the Administrative Agent,
unless such Lender no longer holds a Commitment under this Agreement, in which
event such assigning Lender shall deliver its Competitive Note, if any, at the
same time it delivers the applicable Assignment and Acceptance to the
Administrative Agent. Within five Business Days after receipt of the notice, the
Borrower, at its own expense, shall execute and deliver to the applicable
Lenders at their request, either (A) a new Revolving Credit Note to the order of
such assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and a Competitive Note to the order of such
assignee in an amount equal to the Total Commitment hereunder, and a new
Revolving Credit Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder, or (B) if Competitive Loans only have
been assigned and the assigning Lender holds a Commitment under this Agreement,
then a new Competitive Note to the order of the assignee Lender in an amount
equal to the outstanding principal amount of the Competitive Loan(s) purchased
by it pursuant to the Assignment and Acceptance, or (C) if Competitive Loans
only have been assigned and the assigning Lender does not hold a Commitment
under this Agreement, a new Competitive Note to the order of such assignee in an
amount equal to the outstanding
69
principal amount of the Competitive Loans(s) purchased by it pursuant to such
Assignment and Acceptance and, a new Competitive Note to the order of the
assigning Lender in an amount equal to the outstanding principal amount of the
Competitive Loans retained by it hereunder. Any new Revolving Credit Notes shall
be in an aggregate principal amount equal to the aggregate principal amount of
the Commitments of the respective Lenders. All new Notes shall be dated as of
the Closing Date and shall otherwise be in substantially the forms of Exhibits
A-1 and A-2 hereto, as the case may be. No assignment shall be effective for
purpose of the Agreement unless it has been recorded in the Register as provided
in this paragraph.
(g) Each of the Lenders may, without the consent of the
Borrower, the Administrative Agent or any Issuing Lender, sell participations to
one or more banks or other entities (a "PARTICIPANT") in all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment and the Loans owing to it and the Note or Notes
held by it); PROVIDED, HOWEVER, that (i) any such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Participant shall not be
granted any voting rights under this Agreement, except with respect to matters
requiring the consent of each of the Lenders hereunder, (iii) any such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iv) the participating banks or other entities shall be
entitled to the cost protection provisions contained in Sections 2.14, 2.15,
2.17 and 2.21 hereof but a Participant shall not be entitled to receive pursuant
to such provisions an amount larger than its share of the amount to which the
Lender granting such participation would have been entitled to receive; PROVIDED
that a Participant that would be a Foreign Lender if it were a Lender shall not
be entitled to the benefits of Section 2.21 unless the Borrower is notified of
the participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.21(e) as though it were a
Lender, and (v) the Borrower, the Administrative 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.
(h) The Lenders may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.3, disclose to the assignee or Participant or proposed assignee or
Participant, any information, including confidential information, relating to
the Borrower furnished to the Administrative Agent by or on behalf of the
Borrower; PROVIDED that prior to any such disclosure, each such assignee or
Participant or proposed assignee or Participant agrees in writing to be bound by
the confidentiality provisions of Section 9.15.
(i) Each Lender hereby represents that it is a commercial
lender or financial institution which makes loans in the ordinary course of its
business and that it will make the Loans hereunder for its own account in the
ordinary course of such business; PROVIDED, HOWEVER, that, subject to preceding
clauses (a) through (h), the disposition of the Notes or other evidence of
Indebtedness held by that Lender shall at all times be within its exclusive
control.
70
(j) The Borrower consents that any Lender may at any time
and from time to time pledge, or otherwise grant a security interest in, any
Loan or any Note evidencing such Loan (or any part thereof), including any such
pledge or grant to any Federal Reserve Bank, and, with respect to any Lender
which is a fund, to the fund's trustee in support of its obligations to such
trustee, and this Section shall not apply to any such pledge or grant; PROVIDED
that no such pledge or grant shall release a Lender from any of its obligations
hereunder or substitute any such assignee for such Lender as a party hereto.
(k) Notwithstanding anything to the contrary contained
herein, any Lender (a "GRANTING LENDER") may grant to a special purpose funding
vehicle (an "SPC"), identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Revolving Credit Loan that such
Granting Lender would otherwise be obligated to make to the Borrower pursuant to
Section 2.1 or 2.6, PROVIDED that (i) nothing herein shall constitute a
commitment to make any Revolving Credit Loan by any SPC and (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or any part
of such Revolving Credit Loan or fund any other obligation required to be funded
by it hereunder, the Granting Lender shall be obligated to make such Revolving
Credit Loan or fund such obligation pursuant to the terms hereof. The making of
a Revolving Credit Loan by an SPC hereunder shall satisfy the obligation of the
Granting Lenders to make Revolving Credit Loans to the same extent, and as if,
such Loan were made by the Granting Lender. Each party hereto hereby agrees that
no SPC shall be liable for any payment under this Agreement for which a Lender
would otherwise be liable, for so long as, and to the extent, the related
Granting Lender makes such payment. In furtherance of the foregoing, each party
hereto hereby agrees that, prior to the date that is one year and one day after
the payment in full of all outstanding senior indebtedness of any SPC, it will
not institute against or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this Section 9.3 any SPC may (i) with notice to, but without the prior
written consent of, the Borrower or the Administrative Agent and without paying
any processing fee therefor, assign all or a portion of its interests in any
Revolving Credit Loan to its Granting Lender or to any financial institutions
providing liquidity and/or credit facilities to or for the account of such SPC
to fund the Revolving Credit Loans made by SPC or to support the securities (if
any) issued by such SPC to fund such Revolving Credit Loans and (ii) disclose on
a confidential basis any non-public information relating to its Revolving Credit
Loans to any rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
SECTION 9.4. EXPENSES; DOCUMENTARY TAXES.
Whether or not the transactions hereby contemplated shall be
consummated, the Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent in connection with the syndication,
preparation, execution, delivery and administration of this Agreement, the
Notes, the making of the Loans and issuance and administration of the Letters of
Credit, the reasonable fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel to the Administrative Agent, as well as all reasonable out-of-pocket
expenses incurred by the Lenders in connection with any restructuring or workout
of this Agreement, or the Notes or the
71
Letters of Credit or in connection with the enforcement or protection of the
rights of the Lenders in connection with this Agreement or the Notes or the
Letters of Credit or any other Fundamental Document, and with respect to any
action which may be instituted by any Person against any Lender or any Issuing
Lender in respect of the foregoing, or as a result of any transaction, action or
nonaction arising from the foregoing, including but not limited to the fees and
disbursements of any counsel for the Lenders or any Issuing Lender. Such
payments shall be made on the Closing Date and thereafter on demand. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement and/or the payment of the Loans and/or expiration of the Letters
of Credit.
SECTION 9.5. INDEMNITY.
Further, by the execution hereof, the Borrower agrees to
indemnify and hold harmless the Administrative Agent and the Lenders and the
Issuing Lenders and their respective directors, officers, employees and agents
(each, an "INDEMNIFIED PARTY") from and against any and all expenses (including
reasonable fees and disbursements of counsel), losses, claims, damages and
liabilities arising out of any claim, litigation, investigation or proceeding
(regardless of whether any such Indemnified Party is a party thereto) in any way
relating to the transactions contemplated hereby, but excluding therefrom all
expenses, losses, claims, damages, and liabilities arising out of or resulting
from the gross negligence or willful misconduct of the Indemnified Party seeking
indemnification, PROVIDED, HOWEVER, that the Borrower shall not be liable for
the fees and expenses of more than one separate firm for all such Indemnified
Parties in connection with any one such action or any separate but substantially
similar or related actions in the same jurisdiction, nor shall the Borrower be
liable for any settlement of any proceeding effected without the Borrower's
written consent, and PROVIDED FURTHER, HOWEVER, that this Section 9.5 shall not
be construed to expand the scope of the Borrower's reimbursement obligations
specified in Section 9.4. The obligations of the Borrower under this Section 9.5
shall survive the termination of this Agreement and/or payment of the Loans
and/or the expiration of the Letters of Credit.
SECTION 9.6. CHOICE OF LAW.
THIS AGREEMENT AND THE NOTES HAVE BEEN EXECUTED AND DELIVERED
IN THE STATE OF NEW YORK AND SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF SUCH STATE APPLICABLE TO CONTRACTS MADE AND
TO BE PERFORMED WHOLLY WITHIN SUCH STATE AND, IN THE CASE OF PROVISIONS RELATING
TO INTEREST RATES, ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
SECTION 9.7. NO WAIVER.
No failure on the part of the Administrative Agent, any Lender
or any Issuing Lender to exercise, and no delay in exercising, any right, power
or remedy hereunder or under the Notes or with regards to the Letters of Credit
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law.
72
SECTION 9.8. EXTENSION OF MATURITY.
Except as otherwise specifically provided in Section 1 or 8
hereof, should any payment of principal of or interest on the Notes or any other
amount due hereunder become due and payable on a day other than a Business Day,
the maturity thereof shall be extended to the next succeeding Business Day and,
in the case of principal, interest shall be payable thereon at the rate herein
specified during such extension.
SECTION 9.9. AMENDMENTS, ETC.
No modification, amendment or waiver of any provision of this
Agreement, and no consent to any departure by the Borrower herefrom or
therefrom, shall in any event be effective unless the same shall be in writing
and signed or consented to in writing by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given; PROVIDED, HOWEVER, that no such modification or
amendment shall without the written consent of each Lender affected thereby (x)
increase or extend the expiration date of the Commitment of a Lender or postpone
or waive any scheduled reduction in the Commitments, or (y) alter the stated
maturity or principal amount of any installment of any Loan (or any
reimbursement obligation with respect to a Letter of Credit) or decrease the
rate of interest payable thereon or extend the scheduled date of any payment
thereof, or the rate at which the Facility Fees or letter of credit fees accrue
or (z) waive a default under Section 7(b) hereof with respect to a scheduled
principal installment of any Loan; and PROVIDED, FURTHER that no such
modification or amendment shall without the written consent of all of the
Lenders (i) amend or modify any provision of this Agreement which provides for
the unanimous consent or approval of the Lenders, or (ii) amend this Section 9.9
or the definition of Required Lenders; and PROVIDED, FURTHER that no such
modification or amendment shall decrease the Commitment of any Lender without
the written consent of such Lender. No such amendment or modification may
adversely affect the rights and obligations of the Administrative Agent or any
Issuing Lender hereunder without its prior written consent. No notice to or
demand on the Borrower shall entitle the Borrower to any other or further notice
or demand in the same, similar or other circumstances. Each holder of a Note
shall be bound by any amendment, modification, waiver or consent authorized as
provided herein, whether or not a Note shall have been marked to indicate such
amendment, modification, waiver or consent and any consent by any holder of a
Note shall bind any Person subsequently acquiring a Note, whether or not a Note
is so marked.
SECTION 9.10. SEVERABILITY.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 9.11. SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
(a) THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW YORK LOCATED IN
73
NEW YORK COUNTY AND TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER
PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF BROUGHT BY THE ADMINISTRATIVE AGENT, A LENDER OR AN ISSUING LENDER. THE
BORROWER TO THE EXTENT PERMITTED BY APPLICABLE LAW (A) HEREBY WAIVES, AND AGREES
NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH COURTS, ANY CLAIM THAT IT IS NOT SUBJECT
PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS PROPERTY IS
EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT, AND (B) HEREBY WAIVES THE RIGHT
TO ASSERT IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY OFFSETS OR COUNTERCLAIMS
EXCEPT COUNTERCLAIMS THAT ARE COMPULSORY OR OTHERWISE ARISE FROM THE SAME
SUBJECT MATTER. THE BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS BY MAIL AT
ITS ADDRESS TO WHICH NOTICES ARE TO BE GIVEN PURSUANT TO SECTION 9.1 HEREOF. THE
BORROWER AGREES THAT ITS SUBMISSION TO JURISDICTION AND CONSENT TO SERVICE OF
PROCESS BY MAIL IS MADE FOR THE EXPRESS BENEFIT OF THE ADMINISTRATIVE AGENT, THE
LENDERS AND EACH ISSUING LENDER. FINAL JUDGMENT AGAINST THE BORROWER IN ANY SUCH
ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER
JURISDICTION (A) BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, A CERTIFIED OR
TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND THE AMOUNT OF
INDEBTEDNESS OR LIABILITY OF THE SUBMITTING PARTY THEREIN DESCRIBED OR (B) IN
ANY OTHER MANNER PROVIDED BY, OR PURSUANT TO, THE LAWS OF SUCH OTHER
JURISDICTION, PROVIDED, HOWEVER, THAT THE ADMINISTRATIVE AGENT, A LENDER OR AN
ISSUING LENDER MAY AT ITS OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL
PROCEEDINGS AGAINST THE BORROWER OR ANY OF ITS ASSETS IN ANY ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ OR OF ANY COUNTRY OR PLACE WHERE THE BORROWER OR SUCH
ASSETS MAY BE FOUND.
(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES, AND COVENANTS THAT IT WILL
NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY
JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION, OR CAUSE OF
ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR
TORT OR OTHERWISE. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT
THE PROVISIONS OF THIS SECTION 9.11(b) CONSTITUTE A MATERIAL INDUCEMENT UPON
WHICH THE OTHER PARTIES HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO
THIS AGREEMENT. THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OR
74
A COPY OF THIS SECTION 9.11(b) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF SUCH OTHER PARTY TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
SECTION 9.12. HEADINGS.
Section headings used herein are for convenience only and are
not to affect the construction of or be taken into consideration in interpreting
this Agreement.
SECTION 9.13. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, but all of which taken together
shall constitute one and the same instrument.
SECTION 9.14. ENTIRE AGREEMENT.
This Agreement represents the entire agreement of the parties
with regard to the subject matter hereof and the terms of any letters and other
documentation entered into among the Borrower, the Administrative Agent, the
Syndication Agent or any Lender (other than the provisions of the letter
agreement dated October 15, 2002, among the Borrower, JPMorgan Chase Bank, ▇.▇.
▇▇▇▇▇▇ Securities Inc., Bank of America, N.A. and Banc of America Securities
LLC, relating to fees and expenses and syndication issues) prior to the
execution of this Agreement which relate to Loans to be made or the Letters of
Credit to be issued hereunder shall be replaced by the terms of this Agreement.
SECTION 9.15. CONFIDENTIALITY.
Each of the Administrative Agent, the Issuing Lenders and the
Lenders agrees that it will not disclose without the consent of the Borrower any
information with respect to the Borrower or any of its Subsidiaries which is
furnished pursuant to this Agreement or any other Fundamental Document or any
document contemplated by or referred to herein or therein and which is
designated by the Borrower or any Subsidiary in writing as confidential (such
information, "CONFIDENTIAL INFORMATION"), except (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other professional advisors who need to know the Confidential Information
for purposes related to this Agreement or any other Fundamental Document or any
transactions contemplated thereby or reasonably incidental to the administration
of this Agreement or the other Fundamental Documents (it being understood that
the Persons to whom such disclosure is made will be informed of the confidential
nature of such Confidential Information and agree to keep such Confidential
Information confidential in accordance with the provisions of this Section
9.15), (b) to the extent requested by any regulatory authority, (c) to the
extent required by Applicable Law, regulations or by any subpoena or similar
legal process, PROVIDED that the Administrative Agent, such Issuing Lender or
such Lender, as the case may be, shall request confidential treatment of such
Confidential Information to the extent permitted by Applicable Law and the
Administrative Agent, such Issuing Lender or such Lender, as the case may be,
shall, to the extent permitted by Applicable Law, promptly inform the Borrower
with respect thereto so that the Borrower may seek appropriate protective relief
to the extent permitted by Applicable Law, PROVIDED FURTHER that in
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the event that such protective remedy or other remedy is not obtained, the
Administrative Agent, such Issuing Lender or such Lender, as the case may be,
shall furnish only that portion of the Confidential Information that is legally
required and shall disclose the Confidential Information in a manner reasonably
designed to preserve its confidential nature, (d) to any other Lender party to
this Agreement, (e) 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, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section 9.15 or (ii) becomes available to the
Administrative Agent, any Issuing Lender or any Lender on a nonconfidential
basis from a source other than the Borrower after the Closing Date.
SECTION 9.16. DELIVERY OF ADDENDA.
Each initial Lender shall become a party to this Agreement by
delivering to the Administrative Agent an Addendum duly executed by such Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and the year first above written.
CENDANT CORPORATION,
as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
JPMORGAN CHASE BANK,
as Administrative Agent and Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.,
as Syndication Agent and Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
as Co-Documentation Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
CITIBANK N.A.,
as Co-Documentation Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BARCLAYS BANK,
As Co-Documentation Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
78