Exhibit 10(l)
EXECUTION COPY
U.S. $1,000,000,000
BRIDGE CREDIT AGREEMENT
Dated as of April 30, 2007
Among
XEROX CORPORATION
as Borrower
-- --------
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
-- ------- -------
and
CITIBANK, N.A.
as Administrative Agent
-- -------------- -----
and
JPMORGAN CHASE BANK, N.A.
as Syndication Agent
-- -----------------
and
CITIGROUP GLOBAL MARKETS INC.
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
-- ----- ---- --------- --- ----- -----------
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 16
SECTION 1.03. Accounting Terms 16
ARTICLE II
SECTION 2.01. The Advances 17
SECTION 2.02. Making the Advances 17
SECTION 2.03. Fees 18
SECTION 2.04. Termination or Reduction of the Commitments 18
SECTION 2.05. Repayment of Advances 19
SECTION 2.06. Interest on Advances 19
SECTION 2.07. Interest Rate Determination 19
SECTION 2.08. Optional Conversion of Advances 21
SECTION 2.09. Prepayments of Advances 21
SECTION 2.10. Increased Costs 21
SECTION 2.11. Illegality 22
SECTION 2.12. Payments and Computations 23
SECTION 2.13. Taxes 24
SECTION 2.14. Sharing of Payments, Etc. 26
SECTION 2.15. Evidence of Debt 26
SECTION 2.16. Use of Proceeds 27
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness 27
SECTION 3.02. Conditions Precedent to Each Borrowing. 28
SECTION 3.03. Determinations Under Section 3.01 29
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Borrower 29
ARTICLE V
SECTION 5.01. Affirmative Covenants 31
SECTION 5.02. Negative Covenants 34
SECTION 5.03. Financial Covenants 38
ARTICLE VI
SECTION 6.01. Events of Default 39
ARTICLE VII
SECTION 7.01. Authorization and Action 41
SECTION 7.02. Agent's Reliance, Etc. 42
SECTION 7.03. Citibank and Affiliates 42
SECTION 7.04. Lender Credit Decision 42
SECTION 7.05. Indemnification 42
SECTION 7.06. Successor Agent 43
SECTION 7.07. Other Agents. 44
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 44
SECTION 8.02. Notices, Etc. 44
SECTION 8.03. No Waiver; Remedies 45
SECTION 8.04. Costs and Expenses 45
SECTION 8.05. Right of Set-off 47
ii
SECTION 8.06. Binding Effect 47
SECTION 8.07. Assignments and Participations 47
SECTION 8.08. Confidentiality 50
SECTION 8.08. Governing Law 50
SECTION 8.09. Execution in Counterparts 50
SECTION 8.10. Jurisdiction, Etc. 50
SECTION 8.11. Patriot Act Notice 51
SECTION 8.12. Waiver of Jury Trial 52
Schedules
---------
Schedule I - List of Applicable Lending Offices
Schedule 5.02(a) - Existing Liens
Exhibits
--------
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of Counsel for the Borrower
Exhibit D-2 - Form of Opinion of General Counsel of the Borrower
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BRIDGE CREDIT AGREEMENT
Dated as of April 30, 2007
XEROX CORPORATION, a New York corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on Schedule I hereto, CITIBANK, N.A. ("Citibank"), as
administrative agent (the "Agent") for the Lenders (as hereinafter defined),
JPMORGAN CHASE BANK, N.A., as syndication agent, and CITIGROUP GLOBAL MARKETS
INC. and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as Joint Lead Arrangers and Joint
Bookrunners, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means an advance by a Lender to the Borrower as part
of a Borrowing and refers to a Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, Controls, is Controlled by or is under common
Control with such Person or is a director of such Person.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank at its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Attention: Bank Loan
Syndications.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
----------------------------------- -----------------------
Public Debt Rating
S&P/▇▇▇▇▇'▇/Fitch Applicable Margin
----------------------------------- -----------------------
▇▇▇▇▇ ▇
▇-/▇▇/▇- or better 0.200%
----------------------------------- -----------------------
▇▇▇▇▇ ▇
BBB+/Baa1/BBB+ 0.290%
----------------------------------- -----------------------
▇▇▇▇▇ ▇
▇▇▇/▇▇▇▇/▇▇▇ 0.370%
----------------------------------- -----------------------
----------------------------------- -----------------------
▇▇▇▇▇ ▇
▇▇▇-/▇▇▇▇/▇▇▇- 0.450%
----------------------------------- -----------------------
▇▇▇▇▇ ▇
BB+/Ba1/BB+ 0.575%
----------------------------------- -----------------------
Level 6
BB/Ba2/BB or below 0.775%
----------------------------------- -----------------------
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
----------------------------------- -----------------------
Public Debt Rating
S&P/▇▇▇▇▇'▇/Fitch Applicable Percentage
----------------------------------- -----------------------
▇▇▇▇▇ ▇
▇-/▇▇/▇- or better 0.050%
----------------------------------- -----------------------
▇▇▇▇▇ ▇
BBB+/Baa1/BBB+ 0.060%
----------------------------------- -----------------------
▇▇▇▇▇ ▇
BBB/Baa2/BBB 0.080%
----------------------------------- -----------------------
▇▇▇▇▇ ▇
▇▇▇-/▇▇▇▇/▇▇▇- 0.100%
----------------------------------- -----------------------
▇▇▇▇▇ ▇
BB+/Ba1/BB+ 0.125%
----------------------------------- -----------------------
Level 6
BB/Ba2/BB or below 0.175%
----------------------------------- -----------------------
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%)
of (i) 1/2 of 1%, plus (ii) the rate obtained by dividing (A)
the latest three-week moving average of secondary market
morning offering rates in the United States for three-month
certificates of deposit of major United States money market
banks, such three-week moving average (adjusted to the basis
of a year of 360 days) being determined weekly on each Monday
(or, if such day is not a Business Day, on the next succeeding
Business Day) for the three-week period ending on the previous
Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be
suspended or
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terminated, on the basis of quotations for such rates received
by Citibank from three New York certificate of deposit dealers
of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the
Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
(including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for Citibank with respect
to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the average during
such three-week period of the annual assessment rates
estimated by Citibank for determining the then current annual
assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of Citibank in the United States; and
(c) 1/2 of 1% above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrowing" means a borrowing consisting of simultaneous
Advances of the same Type made by each of the Lenders.
"Borrowing Minimum" means $10,000,000.
"Borrowing Multiple" means $1,000,000.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market and banks
are open for business in London.
"Citibank" means Citibank, N.A.
"Commitment" means as to any Lender (a) the Dollar amount set
forth opposite such Lender's name on Schedule I hereto as such Lender's
"Commitment" or (b) if such Lender has entered into an Assignment and
Acceptance, the Dollar amount set forth for such Lender in the Register
maintained by the Agent pursuant to Section 8.07(d), as such amount may
be reduced pursuant to Section 2.04. As of the Effective Date, the
aggregate amount of the Commitments is $1,000,000,000.
"Company Information" has the meaning specified in Section
8.08.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated EBITDA" means, for any period, net income (or
net loss) (before discontinued operations) plus the sum of (a)
Consolidated Interest Expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense, and (e) any losses or expenses from
any unusual, extraordinary or otherwise non-recurring items, including
but
3
not limited to (i) aggregate foreign exchange losses included in "other
expense" and (ii) losses from minority interest, and minus (x)
Consolidated Interest Income and (y) the sum of the amounts for such
period of any income tax benefits and any income or gains from any
unusual, extraordinary or otherwise non-recurring items, including but
not limited to (i) aggregate foreign exchange gains included in "other
income" and (ii) income from minority interest; in each case determined
on a Consolidated basis for the Borrower and its Subsidiaries and in
the case of items (a) through (e) and items (x) and (y), to the extent
such amounts were included in the calculation of net income. For the
purposes of calculating Consolidated EBITDA for any period, if during
such period the Borrower or any Subsidiary shall have made an
acquisition or a disposition, Consolidated EBITDA for such period shall
be calculated after giving pro forma effect thereto as if such
acquisition or disposition, as the case may be, occurred on the first
day of such period.
"Consolidated Interest Expense" means, for any period, for the
Borrower and its Subsidiaries on a Consolidated basis, interest expense
(including equipment financing interest) for such period, determined in
accordance with GAAP.
"Consolidated Interest Income" means, for any period, for the
Borrower and its Subsidiaries on a Consolidated basis, interest, fees
and other income, arising from investments in cash and cash
equivalents, included in Consolidated net income for such period,
determined in accordance with GAAP.
"Control" means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies
of such Person, whether through the ability to exercise voting power,
by contract or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than current trade payables incurred in the ordinary course of
such Person's business), (c) all obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments, (d) all
obligations of such Person created or arising under any conditional
sale or other title retention agreement (other than under any such
agreement which constitutes or creates an account payable in the
ordinary course of business) with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to
repossession or sale of such property), (e) all obligations of such
Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of bankers'
acceptances, letters of credit or similar bank guarantees (other than
bankers' acceptances, letters of credit or similar bank guarantees
issued in support of trade), (g) all Debt of others referred to in
clauses (a) through (f) above or clause (h) below (collectively,
"Guaranteed Debt") guaranteed directly or indirectly in any manner by
such
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Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (1) to pay or purchase such Guaranteed Debt or to
advance or supply funds for the payment or purchase of such Guaranteed
Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, with the primary intent and purpose of
such Person being to enable the debtor to make payment of such
Guaranteed Debt or to assure the holder of such Guaranteed Debt against
loss, (3) to supply funds to or in any other manner invest in the
debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered), with the primary intent and purpose of such Person being to
enable the debtor to make payment of such Guaranteed Debt or to assure
the holder of such Guaranteed Debt against loss, or (4) where the
primary intent and purpose of such Person is to otherwise assure a
creditor against loss (but, in each case, only to the extent so assured
or guaranteed), and (h) all Debt referred to in clauses (a) through (g)
above (including Guaranteed Debt) secured by (or for which the holder
of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Debt.
"Debt for Borrowed Money" means all items that, in accordance
with GAAP, would be classified as debt on the Borrower's Consolidated
balance sheet, provided, that notwithstanding the treatment thereof
under GAAP, "Debt for Borrowed Money" shall exclude (without
duplication) (a) any Trust Preferred Securities and Preferred Stock
outstanding on the date hereof and (b) any amount shown on such balance
sheet in respect of any securities issued on or prior to Effective Date
that are Qualified Equity Securities on such date of determination.
"Default" means any Event of Default or any event that, unless
cured or waived, would constitute an Event of Default but for the
requirement hereunder that notice be given or time elapse or both.
"Disclosed Matter" shall mean the existence or occurrence of
any matter which has been disclosed either in writing by the Borrower
to the Agent or the Lenders or in any filing made with the SEC, in each
case prior to the Effective Date.
"Disqualified Equity Securities" means that portion of any
Equity Interest (other than such Equity Interest that is solely
redeemable, or at the election of the Borrower (not subject to any
condition), may be redeemed, with Qualified Equity Securities) which,
by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the sole option of the holder thereof on or prior to the
Termination Date.
"Dollars" and the "$" sign each means lawful currency of the
United States of America.
5
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Domestic Subsidiary" means a Subsidiary of the Borrower
organized under the laws of a jurisdiction inside the United States.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.07, the Borrower,
such approvals not to be unreasonably withheld or delayed; provided,
however, that neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to environment, including, without
limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any
third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial interpretation, policy or guidance relating to
pollution or protection of the environment or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Equity Interests" means (a) shares of capital stock,
partnership interests, membership interests in a limited liability
company, beneficial interests in a trust or other equity ownership
interests in a Person or (b) any warrants, options or other rights to
acquire such shares or interests.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
6
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of the Borrower or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for the imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, a Plan.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum) appearing on Reuters Screen LIBOR01
Page (or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period or, if for any reason such rate is
not available, the average (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in Dollars is offered
by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at
7
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period. If the Reuters Screen
LIBOR01 Page (or any successor page) is unavailable, the Eurodollar
Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by the Agent
on the basis of applicable rates furnished to and received by the Agent
from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.07.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Taxes" means, with respect to any Lender and the
Agent, or any other recipient of a payment 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 (however
denominated), or taxes imposed in lieu of such income or franchise
taxes, by the United States, or by the jurisdiction under the laws of
which such Lender, such Lender's Applicable Lending Office or the Agent
(as the case may be) is organized or any political subdivision thereof,
(b) any branch profits taxes imposed by the United States or any
similar tax or capital tax imposed by any other jurisdiction described
in clause (a), and (c) in the case of a Lender organized under the laws
of a jurisdiction outside the United States, any withholding tax
imposed on any such payment by the United States to the extent that it
is determined on the basis of laws in effect and tax rates applicable
to such Lender at the time such Lender becomes a party to this
Agreement (or designates a new Applicable Lending Office) or is
attributable to such Lender's failure to comply with Section 2.13(e),
except to the extent that such Lender, or its assignor, if any, was
entitled, at the time of designation of a new Applicable Lending Office
or assignment, as applicable, to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section
2.13(a) (it being understood and agreed, for the avoidance of doubt,
that any withholding tax imposed on such a Lender as a result of
8
a change in law or regulation or interpretation thereof occurring after
the time such Lender became a party to this Agreement shall not be an
Excluded Tax).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Finance SPE" means (a) any Receivables SPE and (b) any
Subsidiary that (i) is a special purpose financing vehicle, (ii) was
created solely for the purpose of facilitating the incurrences of Debt
or issuances of Equity Interests by the Borrower or any Subsidiary,
(iii) has no business other than the facilitation of such incurrence or
issuance and activities incidental thereto and (iv) is capitalized with
an amount not materially more than the cash proceeds received by such
Finance SPE from such transaction, provided that such transaction does
not constitute or create indebtedness secured by a Lien that is
prohibited by Section 5.02(a).
"Financial Officer" means the chief financial officer or
treasurer of the Borrower.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fitch" means Fitch, Inc.
"Foreign Subsidiary" means a Subsidiary organized under the
laws of a jurisdiction outside the United States.
"Fuji Xerox" means Fuji Xerox Co., Limited.
"GAAP" has the meaning specified in Section 1.03.
"Guarantor" means any Domestic Subsidiary that has or is
required to execute and deliver the guaranty described in Section
5.01(j) hereof.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any applicable Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Indemnified Taxes" shall mean Taxes other than Excluded
Taxes.
9
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance and ending on
the last day of the period selected by the Borrower requesting such
Borrowing pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three or six months,
or, subject to clause (c) below, nine months, as the Borrower may, upon
notice received by the Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period
that ends after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) the Borrower shall not be entitled to select an
Interest Period having a duration of nine months unless, by
2:00 P.M. (New York City time) on the third Business Day prior
to the first day of such Interest Period, each Lender notifies
the Agent that such Lender will be providing funding for such
Borrowing with such Interest Period (the failure of any Lender
to so respond by such time being deemed for all purposes of
this Agreement as an objection by such Lender to the requested
duration of such Interest Period); provided that, if any or
all of the Lenders object to the requested duration of such
Interest Period, the duration of the Interest Period for such
Borrowing shall be one, two, three or six months, as specified
by the Borrower in the applicable Notice of Borrowing as the
desired alternative to an Interest Period of nine months;
(d) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(e) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
10
"Lenders" means each Initial Lender and each Person that shall
become a party hereto pursuant to Section 8.07.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property, it being understood that a license or
assignment of intellectual property not securing Debt, a lease or
sublease of assets to another Person or the filing of a precautionary
financing statement (or similar filing) in connection with an operating
lease or consignment does not constitute a "Lien".
"Material Adverse Change" means any material adverse change in
the business, assets, operations or condition (financial or otherwise)
of the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations or condition (financial or
otherwise) of the Borrower and its Subsidiaries taken as a whole, (b)
the rights and remedies of the Agent or any Lender under this Agreement
or any Note or (c) the ability of the Borrower to perform its monetary
obligations under this Agreement or any Note.
"Material Subsidiary" means any Wholly-Owned Subsidiary of the
Borrower that as of the end of the most recently completed Fiscal
Quarter had Consolidated net worth of $100,000,000 or more, provided,
however, that any change in a Person's status as a Material Subsidiary
shall become effective as of the date of delivery of the financial
statements for such Fiscal Quarter (or, in the case of the last Fiscal
Quarter of a Fiscal Year, such Fiscal Year) pursuant to Section
5.01(i).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Note" means a promissory note of the Borrower payable to the
order of any Lender, delivered pursuant to a request made under Section
2.15 in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from
the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
11
"PARC" means Palo Alto Research Center, Incorporated, a
Delaware corporation.
"Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26,
2001.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
warehouseman's, landlord's, materialmen's, mechanics', carriers',
workmen's and repairmen's Liens and other similar Liens arising in the
ordinary course of business; (c) pledges or deposits and other Liens
arising or otherwise to secure obligations under workers' compensation,
unemployment insurance and other social security laws or regulations or
similar legislation or to secure public or statutory obligations or to
secure payments of workers' compensation or unemployment insurance; (d)
easements, rights of way and other encumbrances on title to real
property that do not materially adversely affect the use of such
property for its present purposes; (e) deposits or other Liens to
secure the performance of bids, contracts (other than for Debt),
leases, statutory obligations, performance bonds and other obligations
of a like nature incurred in the ordinary course of business, or to
secure surety and appeal bonds and other obligations of a like nature;
(f) liens arising from judgments not otherwise constituting an Event of
Default; (g) security given in the ordinary course of business
consistent with past practice to any public utility or governmental
authority in connection with the operation of the business, other than
security for borrowed money; and (h) deposits securing letters of
credit or similar instruments issued in support of any obligation
referred to in clauses (a) through (g) above.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Post-Petition Interest" has the meaning specified in Section
7.05.
"Preferred Stock" of any Person shall mean capital stock or
other ownership interests of or in such Person of any class or classes
(however designated) that ranks prior, as to the payment of dividends
and/or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to
shares of capital stock or other ownership interests of or in any other
class of such person.
"Public Debt Rating" means, as of any date, the rating that
has been most recently announced by either S&P, ▇▇▇▇▇'▇ or Fitch, as
the case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Borrower or, if any such rating agency
shall have issued more than one such rating, the lowest such rating
issued by such rating agency. For purposes of the foregoing, (a) if
only one of S&P, Moody's
12
and Fitch shall have in effect a Public Debt Rating, the Applicable
Margin and the Applicable Percentage shall be determined by reference
to the available rating; (b) if none of S&P, Moody's or Fitch shall
have in effect a Public Debt Rating, the Applicable Margin and the
Applicable Percentage will be set in accordance with Level 6 under the
definition of "Applicable Margin" or "Applicable Percentage", as the
case may be; (c) if only two of S&P, ▇▇▇▇▇'▇ and Fitch shall have in
effect a Public Debt Rating, the Applicable Margin and the Applicable
Percentage shall be determined by reference to the higher rating unless
there is a split in such ratings of more than one level, in which case
the level that is one level higher than the of the lower such ratings
shall apply, (d) if all three have established ratings and the ratings
established by S&P, Moody's and Fitch shall fall within two different
levels, the Applicable Margin and the Applicable Percentage shall be
based upon the rating assigned by two of such agencies, or if the
ratings established by S&P, ▇▇▇▇▇'▇ and Fitch shall fall within three
different levels, the Applicable Margin and the Applicable Percentage
shall be based upon the middle rating; (e) if any rating established by
S&P, Moody's or Fitch shall be changed (other than as a result of a
change in the basis of such rating or the rating system of such
agency), such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such
change and ending on the date immediately preceding the effective date
of the next such change; and (f) if S&P, Moody's or Fitch shall change
the basis or system on which ratings are established, each reference to
the Public Debt Rating announced by S&P, Moody's or Fitch, as the case
may be, shall refer to the then equivalent rating by S&P, Moody's or
Fitch, as the case may be or, if there is no equivalent or such change
would otherwise result in a change in the Applicable Margin or
Applicable Percentage, the Borrower and the Lenders shall negotiate in
good faith to amend this definition or the definitions of "Applicable
Margin" or "Applicable Percentage" to reflect such changed rating
system or ratings basis and, pending the effectiveness of any such
amendment, the Applicable Margin and the Applicable Percentage shall be
determined by reference to the ratings of the other rating agencies
(or, if the circumstances referred to in this clause (f) shall affect
all such agencies, the ratings most recently in effect prior to such
changes).
"Qualified Equity Securities" means any Equity Interest that
is not Disqualified Equity Securities.
"Qualified Receivables Transaction" means any transaction or
arrangement or series of transactions or arrangements entered into by
the Borrower or any of its Subsidiaries in order to monetize or
otherwise finance, or as a result of which it may receive earlier than
otherwise due amounts that will become receivable or be earned in the
future in respect of, a discrete pool (which may be fixed or revolving)
of Receivables, leases or other financial assets including financing
contracts and any transaction or arrangement that is not a sale or
transfer but pursuant to and by virtue of which a Person succeeds to,
and becomes entitled to, the rights under or in respect of such
Receivables, leases or other financial assets (in each case whether now
existing or arising in the future), and which may include a Lien on (a)
Receivables, (b) deposit or other accounts (and the funds or
investments from time to time credited thereto) established in
connection with a Qualified Receivables Transaction to secure
obligations of the Borrower or any Subsidiary arising in connection
with or otherwise related to such
13
transaction, (c) any promissory note issued by the Borrower or any
Subsidiary evidencing the repayment of amounts directly or indirectly
distributed to the Borrower or any Subsidiary from any such accounts
and (d) any assets of or Equity Interests in each and any Receivables
SPE used to facilitate such transaction, provided that such transaction
or arrangement does not constitute or create indebtedness secured by a
Lien that is prohibited by Section 5.02(a).
"Ratable Share" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Commitment at such
time (or, if the Commitments shall have been terminated pursuant to
Section 2.04 or 6.01, such Lender's Commitment as in effect immediately
prior to such termination) and the denominator of which is the
aggregate amount of all Commitments at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.04 or
6.01, the aggregate amount of all Commitments as in effect immediately
prior to such termination).
"Receivables" means "accounts" (as such term is defined in the
Uniform Commercial Code as in effect from time to time in the State of
New York (or, if by reason of mandatory provisions of law, the Uniform
Commercial Code as in effect in a jurisdiction other than New York) or
the Personal Property Security Act in effect in each of the provinces
or territories in Canada (other than Quebec) to the extent applicable),
including the proceeds of inventory to the extent it also constitutes
an account), "claims" as such term is defined in the Civil Code of
Quebec to the extent applicable, book debts and any other existing or
hereafter arising accounts receivable, lease receivables, finance
receivables, service receivables and supply receivables and any
property or assets (including equipment, inventory, software, leases
and servicing contracts) related thereto.
"Receivables SPE" means a Subsidiary that is a special purpose
entity that (a) borrows against Receivables or purchases, leases or
otherwise acquires Receivables or sells, disposes, assigns, leases,
conveys or otherwise transfers Receivables to one or more third party
purchasers or another Receivables SPE in connection with a Qualified
Receivables Transaction or (b) engages in other activities that are
necessary or desirable to effectuate the activities described in the
definitions of Qualified Receivables Transaction or Third-Party Vendor
Financing Program, or (c) is established or then used solely for the
purpose of, and has no business other than, owning a Receivables SPE,
servicing Receivables owned by a Receivables SPE, owning or holding
title to the property or assets giving rise to such Receivables or any
activities incidental thereto (including those described in the
definitions of Qualified Receivables Transaction or Third-Party Vendor
Financing Program).
"Reference Banks" means Citibank and JPMorgan Chase Bank, N.A.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Advances owing to Lenders,
14
or, if no such principal amount is then outstanding, Lenders having at
least a majority in interest of the Commitments.
"Responsible Officers" means the chief executive officer, any
Financial Officer, the controller and the general counsel of the
Borrower.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"SEC" means Securities and Exchange Commission.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, or other business entity of
which (or in which) (a) more than 50% of the issued and outstanding
capital stock, securities or other ownership interests having ordinary
voting power or (b) in the case of a partnership, more than 50% of the
partnership interests, are, in each case, at the time directly or
indirectly owned or Controlled by such Person, by such Person and one
or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Taxes" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto.
"Termination Date" means the earlier of (a) April 28, 2008 and
(b) the date of termination in whole of the Commitments pursuant to
Section 2.04 or 6.01.
"Third-Party Vendor Financing Program" means each and any
arrangement by the Borrower or any Subsidiary of third-party vendor
financing directly or indirectly for customers of the Borrower and its
Subsidiaries, including (a) the sale of a financing business, (b)
sales, dispositions, assignments, leases, licenses, conveyances or
other transfers of all or any portion of the business of, and assets
relating to the business of, providing billing, collection and other
services in respect of finance, lease and other Receivables, (c)
Qualified Receivables Transactions and (d) other arrangements for the
indirect financing of Receivables wherein a third-party financier makes
loans to Subsidiaries that are Finance SPEs in respect of Receivables
generated by the Borrower and its Subsidiaries, whether generated prior
to or during such arrangements and whether the relevant transaction is
treated as on or off the Borrower's consolidated balance sheet
(including the Program Agreement dated as of October 21, 2002 between
General Electric Capital Corporation, the Borrower, Xerox Lease
Funding, LLC and Xerox Lease Equipment LLC as thereafter amended,
modified or supplemented from time to time and any other Qualified
Receivables Transactions and similar arrangements for indirect
15
financings of Receivables between the Borrower or any Subsidiary and
General Electric Capital Corporation or any of its Affiliates).
"Trust Preferred Securities" means the $650.0 million
aggregate liquidation amount of 8% Capital Securities of Xerox Capital
Trust I and any other similar preferred securities issued by the
Borrower and any of its Subsidiaries after the date hereof.
"Unused Commitment" means, with respect to each Lender at any
time, (a) such Lender's Commitment at such time minus (b) the aggregate
principal amount of all Advances made by such Lender and outstanding at
such time.
"Utilization Fee" means, as of any date on which the aggregate
principal amount of the Advances outstanding exceed 50% of the
aggregate Commitments, 0.10% per annum.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary
of the Borrower in which more than 80% (90% in the case of PARC) of the
Equity is at such time directly or indirectly owned by the Borrower,
provided, however, that "Wholly-Owned Subsidiary" shall not include any
Finance SPE.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles as in effect in the United States from time to
time ("GAAP"), provided that (a) if there is any change in GAAP from such
principles applied in the preparation of the audited financial statements
referred to in Section 4.01(e) ("Initial GAAP"), that is material in respect of
the calculation of compliance with the covenants set forth in Section 5.03, the
Borrower shall give prompt notice of such change to the Agent and the Lenders,
(b) if the Borrower notifies the Agent that the Borrower requests an amendment
of any provision hereof to eliminate the effect of any change in GAAP (or the
application thereof) from Initial GAAP (or if the Agent or the Required Lenders
request an amendment of any provision hereof for such purpose), regardless of
whether such notice is given before or after such change in GAAP (or the
application thereof), then such provision shall be applied on the basis of
generally accepted accounting principles as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision is amended in accordance herewith.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
16
SECTION 2.01. The Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Advances to the Borrower
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an amount not to exceed such Lender's Unused
Commitment. Each Borrowing shall be in an amount not less than the Borrowing
Minimum or the Borrowing Multiple in excess thereof and shall consist of
Advances of the same Type made on the same day by the Lenders ratably according
to their respective Commitments. Within the limits of each Lender's Commitment,
the Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.09
and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.03(c), each Borrowing shall be made on notice, given not
later than (x) 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances or (y) 11:00 A.M. (New York City time) on the date of
the proposed Borrowing in the case of a Borrowing consisting of Base Rate
Advances, by the Borrower to the Agent, which shall give to each Lender prompt
notice thereof by telecopier. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be by telephone, confirmed immediately in writing, or
telecopier in substantially the form of Exhibit B hereto, specifying therein the
requested (i) date of such Borrowing, (ii) Type of Advances comprising such
Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Advance. Each Lender shall, before 1:00 P.M. (New York City time) on
the date of such Borrowing, make available for the account of its Applicable
Lending Office to the Agent at the Agent's Account, in same day funds, such
Lender's ratable portion of such Borrowing. After the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Agent will make such funds available to the Borrower requesting the
Borrowing at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than the
Borrowing Minimum or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.07 or 2.11 and (ii) the
Eurodollar Rate Advances may not be outstanding as part of more than ten
separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower requesting the Borrowing. In the case of any Borrowing that the
related Notice of Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any loss (excluding
loss of anticipated profits), cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in such Notice
of Borrowing for such Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing when such Advance, as a result of
such failure, is not made on such date.
17
(d) Unless the Agent shall have received notice from a Lender
prior to the time of any Borrowing that such Lender will not make available to
the Agent such Lender's ratable portion of such Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such Borrowing in accordance with subsection (a) of this Section 2.02, and the
Agent may, in reliance upon such assumption, make available to the Borrower
requesting the Borrowing on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Agent, such Lender and the Borrower severally agree to repay to the Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Agent, at (i) in the case of the Borrower,
the interest rate applicable at the time to the Advances and (ii) in the case of
such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent
such corresponding amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Termination Date at a rate per annum equal to the Applicable
Percentage in effect from time to time, payable in arrears quarterly on the last
day of each March, June, September and December, commencing with the quarter
ended June 30, 2007, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its
own account such fees as may from time to time be agreed between the Borrower
and the Agent.
SECTION 2.04. Termination or Reduction of the Commitments. (a)
Optional. The Borrower shall have the right, upon at least two Business Days'
notice to the Agent, to terminate in whole or permanently reduce ratably in part
the Unused Commitments of the Lenders, provided, however, that each partial
reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
(b) Mandatory. The Commitments of the Lenders shall be
automatically and permanently reduced on the date and in the amount of the net
cash proceeds of any public or 144A issuance in the capital markets by the
Borrower or any of its Subsidiaries after the date hereof of indebtedness (other
than indebtedness having a maturity of 270 days or less) or of equity,
equity-linked, equity like or hybrid securities
18
SECTION 2.05. Repayment of Advances. The Borrower shall repay
to the Agent for the ratable account of each Lender on the Termination Date the
aggregate principal amount of the Advances made to it by such Lender and then
outstanding.
SECTION 2.06. Interest on Advances. (a) Scheduled Interest.
The Borrower shall pay interest on the unpaid principal amount of each Advance
made to it and owing to each Lender from the date of such Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(x) Base Rate in effect from time to time plus (y) the Utilization Fee,
if applicable, payable in arrears quarterly on the last day of each
March, June, September and December during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time plus (z) the
Utilization Fee, if applicable, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of
more than three months, on each day that occurs during such Interest
Period every three months from the first day of such Interest Period
and on the date such Eurodollar Rate Advance shall be Converted or paid
in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the Agent
may, and upon the request of the Required Lenders shall, require the
Borrower to pay interest ("Default Interest") on (i) the overdue
principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at
a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable hereunder that is
not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be
paid on Base Rate Advances pursuant to clause (a)(i) above; provided,
however, that following acceleration of the Advances pursuant to
Section 6.01, Default Interest shall accrue and be payable hereunder
whether or not previously required by the Agent.
SECTION 2.07. Interest Rate Determination. (a) Each Reference
Bank agrees, if requested by the Agent, to furnish to the Agent timely
information for the purpose of determining each Eurodollar Rate. If any one or
more of the Reference Banks shall not furnish such timely information to the
Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.06(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under Section
2.06(a)(ii).
19
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders notify the Agent that (i) they are unable to obtain
matching deposits in the London inter-bank market at or about 11:00
A.M. (London time) on the second Business Day before the making of a
Borrowing in sufficient amounts to fund their respective Advances as a
part of such Borrowing during its Interest Period or (ii) the
Eurodollar Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Required Lenders of making, funding
or maintaining their respective Eurodollar Rate Advances for such
Interest Period, the Agent shall forthwith so notify the Borrower and
the Lenders, whereupon (A) the Borrower of such Eurodollar Rate
Advances will, on the last day of the then existing Interest Period
therefor, either (x) prepay such Advances or (y) Convert such Advances
into Base Rate Advances and (B) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section
1.01, the Agent will forthwith so notify the Borrower and the Lenders
and such Advances will automatically, on the last day of the then
existing Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of Eurodollar Rate Advances comprising any Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than the Borrowing
Minimum, such Advances shall automatically Convert into Base Rate
Advances.
(e) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a), (i) each Eurodollar Rate
Advance will automatically, on the last day of the then existing
Interest Period therefor, be Converted into Base Rate Advances and (ii)
the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(f) If Reuters Screen LIBOR01 Page is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for
determining the Eurodollar Rate for any Eurodollar Rate Advances after
the Agent has requested such information,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances,
(ii) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or to Convert Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
20
SECTION 2.08. Optional Conversion of Advances. The Borrower of
any Advance may on any Business Day, upon notice given to the Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion in the case of a Conversion to Eurodollar Rate
Advances and not later than 11:00 A.M. (New York City time) on the date of the
proposed Conversion in the case of a Conversion to Base Rate Advances and
subject to the provisions of Sections 2.07, 2.11 and 8.04(c), Convert all
Advances of one Type comprising the same Borrowing into Advances of the other
Type; provided, however, that any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b) and no Conversion of any Advances shall result in
more separate Borrowings than permitted under Section 2.02(b). Each such notice
of a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower giving such notice.
SECTION 2.09. Prepayments of Advances. (a) Optional. The
Borrower may, upon notice at least two Business Days' prior to the date of such
prepayment, in the case of Eurodollar Rate Advances, and not later than 11:00
A.M. (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to the Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
the outstanding principal amount of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment of Advances shall be in an aggregate principal
amount of not less than the Borrowing Minimum or a Borrowing Multiple in excess
thereof, and (y) in the event of any such prepayment of a Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
(b) Mandatory. (i) On each date on which the aggregate
outstanding principal amount of the Advances exceeds the Commitments (as may be
reduced from time to time in accordance with Section 2.04), the Borrower shall,
as soon as practicable and in any event within two Business Days after any
reduction of the Commitments, prepay the outstanding principal amount of any
Advances comprising part of the same Borrowing in an aggregate amount sufficient
to reduce such aggregate outstanding principal amount to an amount not to exceed
100% of the aggregate Commitments of the Lenders on such date.
(ii) Each prepayment made pursuant to this Section 2.09(b)
shall be made together with any interest accrued to the date of such prepayment
on the principal amounts prepaid and, in the case of any prepayment of a
Eurodollar Rate Advance on a date other than the last day of an Interest Period
or at its maturity, any additional amounts which the Borrower shall be obligated
to reimburse to the Lenders in respect thereof pursuant to Section 8.04(c). The
Agent shall give prompt notice of any prepayment required under this Section
2.09(b) to the Borrower and the Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change after the date hereof in or in the interpretation
of any law or regulation or (ii) the compliance with any guideline or request
from any central bank or other governmental authority
21
including, without limitation, any agency of the European Union or similar
monetary or multinational authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances (excluding for purposes
of this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes and (ii) changes in the basis of taxation (including rates) of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof, as to both
of which Section 2.13 shall govern), then the Borrower shall from time to time,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost; provided, however, that before making any
such demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost, submitted to the Borrower
and the Agent by such Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) that becomes
effective after the date hereof, or any change in any such existing law,
regulation, guideline or request, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder (or
similar contingent obligations), then, upon demand by such Lender (with a copy
of such demand to the Agent), the Borrower shall pay to the Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
(c) Notwithstanding anything to the contrary in this Section
2.10, the Borrower shall not be required to compensate a Lender pursuant to this
Section 2.10 for any amounts incurred more than 270 days prior to the date that
such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; provided that, if the circumstances giving rise to such
claim have a retroactive effect, then such 270-day period shall be extended to
include the period of such retroactive effect.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will
automatically, upon such demand be Converted into a Base Rate Advance and (b)
the obligation
22
of the Lenders to make Eurodollar Rate Advances or to Convert Advances into
Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist; provided, however, that before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Eurodollar Lending Office
if the making of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment required to be made hereunder, irrespective of any right
of counterclaim or set-off, not later than 11:00 A.M. (New York City time) on
the day when due in Dollars to the Agent at the Agent's Account in same day
funds. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or fees ratably (other than
amounts payable pursuant to Section 2.03(b), 2.10, 2.13 or 8.04(c)) to the
Lenders for the account of their respective Applicable Lending Offices, and like
funds relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
an Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender by the Borrower is not made when due
hereunder or under the Note held by such Lender, to charge from time to time
against any or all of the Borrower's accounts with such Lender any amount so
due.
(c) All computations of interest based on the Base Rate (other
than when the Base Rate is determined by reference to the Federal Funds Rate)
shall be made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurodollar Rate or
the Federal Funds Rate and of fees shall be made by the Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Agent of an interest
rate hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
23
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by the Borrower
to or for the account of any Lender or the Agent hereunder or under the Notes or
any other documents to be delivered hereunder shall be made, in accordance with
Section 2.12 or the applicable provisions of such other documents, free and
clear of and without deduction for any and all Indemnified Taxes. If the
Borrower shall be required by law to deduct any Indemnified Taxes from or in
respect of any sum payable hereunder or under any Note or any other documents to
be delivered hereunder to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.13) such Lender or the Agent (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 taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
any other documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement
or the Notes or any other documents to be delivered hereunder, excluding,
however, such taxes imposed as a result of an assignment (other than an
assignment that occurs as a result of the Borrower's demand) or participation
(hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for
and hold it harmless against the full amount of Indemnified Taxes or Other Taxes
imposed on or paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30 days from the date
such Lender or the Agent (as the case may be) makes written demand therefor. The
written demand shall include the original or a copy of a receipt or a demand
issued by the relevant governmental authority evidencing such payment or
demanding such payment, together with a certificate setting forth the amount of
such Indemnified Taxes or Other Taxes and, in reasonable detail, the calculation
and basis for such Indemnified Taxes or Other Taxes.
(d) Within 30 days after the date of any payment of
Indemnified Taxes by the Borrower to a governmental authority, the Borrower
shall furnish to the Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing such payment to the extent
such a receipt is issued therefor, or other written proof of payment thereof
that is reasonably satisfactory to the Agent.
24
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as reasonably requested in
writing by the Borrower, shall provide each of the Agent and the Borrower with
two duly completed original Internal Revenue Service Forms ▇-▇▇▇▇, ▇-▇▇▇▇ or
W-8IMY, as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled
to a reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. For purposes of this subsection (e), the terms "United
States" and "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(f) Should a Lender become subject to Excluded Taxes because
of its failure to deliver a form, certificate or other document described in
Section 2.13(e), the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Excluded Taxes.
(g) Any Lender that is entitled to an exemption from or
reduction of withholding tax imposed by any jurisdiction other the United States
(a "Foreign Jurisdiction") with respect to payments under this Agreement shall
deliver to the relevant Borrower (with a copy to the Agent) within 15 Business
Days following receipt of the written notice referred to below, such properly
completed and executed documentation as is reasonably requested by the Borrower
or the Agent in order to permit such payments to be made with the benefit of
such exemption or reduction (and shall make application to the relevant
governmental authority for exemption or reduced rates if it is the party
required by law to do so), provided, however, that such Lender has received
written notice from the Borrower or the Agent identifying the requirements for
such exemption or reduction, supplying all applicable documentation and
specifying the time period within which documentation is to be provided under
this Section 2.13(g) (or such application is to be made). Without limiting the
Lenders' obligations under the preceding sentence, each Lender agrees that it
will, without material cost or other material disadvantage (as determined in
such Lender's good faith judgment), cooperate with the Borrower to minimize the
applicable withholding tax burdens in such Foreign Jurisdiction. If any Lender
becomes subject to any Tax because it fails to comply with this Section 2.13(g),
the Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Tax. The Agent agrees that it will provide
administrative and ministerial assistance to each relevant Borrower with respect
to any payments made by the Borrower to the Lenders, and the calculation,
reporting, withholding and remitting of any Taxes imposed by such Foreign
Jurisdiction to the appropriate governmental authority. Notwithstanding the
foregoing, (i) the Borrower shall retain primary responsibility for ascertaining
the requirements of applicable law and providing to the Lenders the written
notice described in the first sentence of this Section 2.13(g), and (ii) no
failure by the Agent to meet any obligations under this Section 2.13(g) shall
operate to excuse the Borrower from its obligations to the Lenders under this
Section 2.13(g). In all events, as between the Borrower and the Agent, the
Borrower shall make all final decisions concerning whether payments to a Lender
are subject to any withholding.
(h) If the Agent or a Lender (or an assignee) determines, in
its reasonable discretion, that it has received a refund of any Indemnified
Taxes or Other Taxes as to which it
25
has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section 2.13, 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 2.13 with respect to
the Indemnified Taxes or the Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Agent or such Lender (or assignee) and without
interest (other than any interest paid by the relevant governmental authority
with respect to such refund).
(i) Any Lender claiming any additional amounts payable
pursuant to this Section 2.13 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it (other
than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of its Ratable Share
of payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.15. Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time hereunder, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder in respect
of Advances. The Borrower agrees that upon notice by any Lender to the Borrower
(with a copy of such notice to the Agent) to the effect that a Note is required
or appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the Advances owing to, or to be made by, such
Lender to the Borrower, the Borrower shall promptly execute and deliver to such
Lender a Note payable to the order of such Lender in a principal amount up to
the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
8.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
amount of each Borrowing made hereunder, the Type
26
of Advances comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder
and (iv) the amount of any sum received by the Agent from the Borrower hereunder
and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or accounts
pursuant to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely for general corporate purposes of the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness. This
Agreement shall become effective on and as of the first date (the "Effective
Date") on which the following conditions precedent have been satisfied:
(a) Except for the Disclosed Matters, no Material Adverse
Change shall have occurred and be continuing since December 31, 2006.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) except for the Disclosed Matters, could
be reasonably likely to have a Material Adverse Effect or (ii) purports
to affect the legality, validity or enforceability of this Agreement or
any Note or the consummation of the transactions contemplated hereby.
(c) The Borrower shall have notified each Lender and the Agent
in writing as to the proposed Effective Date.
(d) The Borrower shall have paid all accrued fees and expenses
of the Agent and the Lenders (including the accrued fees and expenses
of counsel to the Agent (but not other Lenders)) required to be paid by
it.
(e) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated
the Effective Date, stating that:
27
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(f) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Notes) in sufficient
copies for each Lender:
(i) The Notes to the order of the Lenders to the
extent requested by any Lender pursuant to Section 2.15.
(ii) Certified copies of the resolutions of the board
of directors or other governing body of the Borrower approving
this Agreement and the Notes, and of all documents evidencing
other necessary corporate or similar action and governmental
approvals, if any, with respect to this Agreement and the
Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign
this Agreement and the Notes and the other documents to be
delivered hereunder.
(iv) Favorable opinions of (A) Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Borrower, and (B) ▇▇▇▇▇▇
▇. ▇▇▇, Associate General Counsel, Corporate, Finance and
Ventures of the Borrower, substantially in the form of
Exhibits D-1 and D-2 hereto, respectively.
(v) A favorable opinion of Shearman & Sterling LLP,
counsel for the Agent, in form and substance satisfactory to
the Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make an Advance on the occasion of each Borrowing
shall be subject to the conditions precedent that the Effective Date shall have
occurred and on the date of such Borrowing, the following statements shall be
true (and each of the giving of the applicable Notice of Borrowing and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing
such statements are true):
(a) the representations and warranties contained in Section
4.01 (except the representations set forth in the last sentence of
subsection (e) thereof and in subsection (f)(i) thereof) are correct on
and as of such date (except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true on and as of such
earlier date), before and after giving effect to such Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date, and
(b) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
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SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is duly organized, validly existing and in
good standing (to the extent such concept is applicable in the relevant
jurisdiction) under the laws of the jurisdiction of its organization.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's corporate or similar
powers, have been duly authorized by all necessary corporate or similar
action, and do not contravene (i) the Borrower's organizational
documents or by-laws, (ii) any law applicable to the Borrower or (iii)
any indenture or other agreement governing Debt or other material
agreement or other instrument binding upon the Borrower, any of its
Subsidiaries or any of their properties, or give rise to a right
thereunder to require the Borrower or any of its Subsidiaries to make
any payment thereunder.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Borrower of this Agreement or the Notes, except
as have been obtained or made and are in full force and effect or where
the failure to obtain the same would not have a Material Adverse
Effect.
(d) This Agreement has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each of the Notes to which it is a
party, when delivered hereunder will be, the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors' rights generally and subject to general principles
of equity, regardless of whether considered in a proceeding in equity
or at law.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2006, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of PricewaterhouseCoopers LLP, independent public accountants, duly
certified
29
by the chief financial officer of the Borrower, copies of which have
been furnished to each Lender, fairly present, in all material
respects, the Consolidated financial condition of the Borrower and its
Subsidiaries as at such dates and the Consolidated results of the
operations of the Borrower and its Subsidiaries for the periods ended
on such dates, all in accordance with generally accepted accounting
principles consistently applied. Except for the Disclosed Matters, no
Material Adverse Change has occurred and is continuing since December
31, 2006.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or arbitrator that
(i) except for the Disclosed Matters, could reasonably be expected to
result in a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any Note or
the consummation of the transactions contemplated hereby.
(g) Following application of the proceeds of each Advance, not
more than 25 percent of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(a) or 5.02(d) or subject to
any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Debt
and within the scope of Section 6.01(d) will be margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System).
(h) The Borrower is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
(i) No information, exhibit or report furnished by or on
behalf of the Borrower to the Agent or any Lender in connection with
the negotiation and syndication of this Agreement or pursuant to the
terms of this Agreement (as modified or supplemented by other
information so furnished, when taken together as a whole and with the
Disclosed Matters) contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading in any material respect, provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based on assumptions believed to
be reasonable at the time, it being recognized by the Agent and the
Lenders that such projections as to future events are not to be viewed
as facts and that actual results during the period or periods covered
by any such projections may differ from the projected results and that
such differences may be material.
ARTICLE V
COVENANTS OF THE BORROWER
30
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA, Environmental Laws and the Patriot Act, except where failures to
do so, in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim (x) that is being contested in good faith
and by proper proceedings and as to which appropriate reserves are
being maintained or (y) as to which failure to make payment could not
reasonably be expected to result in a Material Adverse Effect.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates; provided, however, that the
Borrower and its Subsidiaries may self-insure to the extent it
determines in its good faith reasonable business judgment that such
insurance is consistent with prudent business practice.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the foregoing shall not prohibit (i) any merger
or consolidation permitted under Section 5.02(b) or any liquidation or
dissolution of any Subsidiary, or (ii) failures (other than with
respect to the existence of the Borrower) that, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(e) Visitation Rights. At any reasonable time and from time to
time during normal business hours, permit the Agent or any of the
Lenders or any agents or representatives thereof (other than financial
advisors or similar persons), to examine and make abstracts from the
records and books of account of, and visit the properties of, the
Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants (in the presence of the officers of the Borrower or
such Subsidiary); provided that (a) except as provided in Section 8.04
hereof, any inspection by any Lender or the Agent or any such
representative shall be at such Lender's or the Agent's own expense, as
applicable, (b) the Lenders shall coordinate the timing of their
inspections and provide reasonable notice thereof and (c) unless an
31
Event of Default shall have occurred and be continuing, such
inspections, visitations and/or examinations shall be limited to once
during any calendar year for each Lender.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made in a manner sufficient to enable the Borrower to
prepare consolidated financial statements in accordance with GAAP.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, except
where all failures to do so could not reasonably be expected to have a
Material Adverse Effect.
(h) Transactions with Affiliates. Conduct, and cause each of
its Wholly-Owned Subsidiaries to conduct, all transactions otherwise
permitted under this Agreement with any of their Affiliates on terms no
less favorable in any material respect to the Borrower or such
Subsidiary than it would obtain in its good faith judgment in a
comparable arm's-length transaction with a Person not an Affiliate,
except for: (i) transactions between the Borrower and its Subsidiaries
or between the Borrower's Subsidiaries; (ii) any compensation or
similar arrangements approved by the board of directors or other
governing body of the Borrower or the respective Subsidiary or entered
into in the ordinary course of business; (iii) issuances of Equity
Securities of the Borrower; (iv) transactions existing on the date
hereof; and (v) transactions with Fuji Xerox, Xerox Capital Services,
LLC, any Finance SPE or any Subsidiary, joint venture or other
arrangement created in connection with any Third-Party Vendor Financing
Program or any other receivables financing, and the provision of
billing, collection and other services in connection with the
foregoing.
(i) Reporting Requirements. Furnish to the Agent for
distribution to each Lender:
(i) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Borrower, the Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such
quarter and Consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the period commencing
at the end of the previous fiscal year and ending with the end
of such quarter, duly certified (subject to year-end audit
adjustments) by a Financial Officer as having been prepared in
accordance with GAAP and a certificate of a Financial Officer
certifying whether or not any Responsible Officer has
knowledge as to whether a Default has occurred and is
continuing and, if a Default has occurred and is continuing,
specifying the details thereof and any action taken or
proposed to be taken with respect thereto and setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03;
32
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the annual audit report for such year for the Borrower and
its Subsidiaries, containing the Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such fiscal
year and Consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for such fiscal year, in
each case accompanied by an opinion without qualification by
PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing and a certificate
of a Financial Officer certifying whether or not any
Responsible Officer has knowledge as to whether a Default has
occurred and is continuing and, if a Default has occurred and
is continuing, specifying the details thereof and any action
taken or proposed to be taken with respect thereto and setting
forth in reasonable detail the calculations necessary to
demonstrate compliance with Section 5.03;
(iii) promptly after a Responsible Officer has
knowledge of the occurrence of each Default continuing on the
date of such statement, a statement of a Financial Officer
setting forth details of such Default and the action that the
Borrower has taken and proposes to take with respect thereto;
(iv) promptly after the filing thereof, copies of all
periodic reports, proxy statements and current reports on Form
8-K that the Borrower files with the SEC;
(v) promptly after a Responsible Officer has
knowledge of the commencement thereof, notice of all actions
and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries
of the type described in Section 4.01(f); and
(vi) such other information regarding the operations,
business affairs and financial condition of the Borrower or
any of its Subsidiaries, or regarding compliance with this
Agreement, as any Lender through the Agent may from time to
time reasonably request;
The Borrower shall be deemed to have delivered the financial
statements and other information referred to in subclauses (i), (ii),
(iv) and (v) of this Section 5.01(i), when (A) such SEC filings,
financials or other information have been posted on the Internet
website of the SEC (▇▇▇▇://▇▇▇.▇▇▇.▇▇▇) or on the Borrower's own
internet website as previously identified to the Agent and Lenders and
(B) the Borrower has notified the Agent by electronic mail of such
posting. If the Agent or a Lender requests such SEC filings, financial
statements or other information to be delivered to it in hard copies,
the Borrower shall furnish to the Agent or such Lender, as applicable,
such statements accordingly, provided that no such request shall affect
that such SEC filings, financial statements or other information have
been deemed to have been delivered in accordance with the terms of the
immediately preceding sentence.
(j) Covenant to Guarantee Obligations. (i) On any date after
the Effective Date that any Domestic Subsidiary incurs any Debt of the
types described in clause (g) or
33
(h) of the definition of "Debt" in respect of Guaranteed Debt (as
defined in the definition of "Debt") for borrowed money of the Borrower
having an outstanding principal amount of more than $100,000,000, or
(ii) on any date after the Effective Date following a written request
by the Borrower to the Agent stating the Borrower's intention to add a
Guarantor hereunder, then the Borrower shall, at its own expense:
(A) promptly and in any event within 10 Business Days
after such incurrence, cause each such Domestic Subsidiary to
duly execute and deliver to the Agent a guaranty, in form and
substance reasonably satisfactory to the Agent, guaranteeing
the obligations of the Borrower under this Agreement and the
Notes (x) in the case of clause (i) above, to the same extent
as such Domestic Subsidiary guarantees such Guaranteed Debt
for borrowed money of the Borrower, or (y) in the case of
clause (ii) above, pursuant to a guaranty that is
substantially similar to Article VII hereof and in form and
substance reasonably satisfactory to the Agent; and
(B) upon the request of the Agent in its sole
discretion, deliver to the Agent within 30 days after such
request a signed copy of a favorable opinion, addressed to the
Agent and the Lenders, of counsel for such Domestic Subsidiary
reasonably acceptable to the Agent as to such guaranties,
guaranty supplements, being legal, valid and binding
obligations of each Domestic Subsidiary party thereto
enforceable in accordance with their terms.
provided, however, that any guaranty by a Domestic Subsidiary shall be
terminated upon the request of the Borrower delivered to the Agent,
provided that any guaranty delivered in accordance with Section
5.01(j)(i) shall be terminated only upon delivery by the Borrower to
the Agent of evidence of (x) the payment in full and satisfaction of
all of the obligations relating to the Guaranteed Debt for borrowed
money of the Borrower that caused the incurrence of Debt by such
Domestic Subsidiary or (y) the release and discharge in full of the
guaranty in respect of such Guaranteed Debt.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Material Subsidiaries to create or suffer to exist, any Lien on or
with respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Material Subsidiaries to
assign, any right to receive income, in each case to secure Debt of any
Person, other than:
(i) Permitted Liens;
(ii) (x) the Liens existing on the Effective Date and
described on Schedule 5.02(a) hereto and (y) other Liens
existing on the Effective Date that secure Debt existing on
the date hereof the aggregate outstanding principal amount of
which does not exceed $50,000,000;
34
(iii) Liens under any Qualified Receivables
Transaction or Third-Party Vendor Financing Programs, of which
not more than $500,000,000, in the aggregate outstanding at
any time secured by such Liens, may be treated as off the
Borrower's Consolidated balance sheet;
(iv) purchase money Liens upon or in any real
property, equipment or any fixed or capital assets acquired or
held by the Borrower or any Material Subsidiary to secure the
purchase price of such property, equipment or assets or to
secure Debt incurred solely for the purpose of financing the
acquisition, construction or improvement of such property,
equipment or assets, in each case created within 180 days of
any such acquisition or the completion of such construction or
improvement, or Liens existing on such property, equipment or
assets at the time of its acquisition (other than any such
Liens created in contemplation of such acquisition that were
not incurred to finance the acquisition of such property), or
Liens securing capital lease obligations;
(v) any Lien existing on any property before the
acquisition thereof by the Borrower or any Subsidiary of the
Borrower, and Liens on property of a Person existing at the
time such Person is merged into or consolidated with the
Borrower or any Subsidiary of the Borrower or becomes a
Material Subsidiary of the Borrower; provided that such Liens
were not created in contemplation of such merger,
consolidation or acquisition and do not extend to any assets
other than those of the Person so merged into or consolidated
with the Borrower or such Subsidiary or acquired by the
Borrower or such Subsidiary;
(vi) other Liens securing Debt which, together with
Debt permitted under Section 5.02(c)(viii) below, does not
exceed (without duplication) at the time such Lien is created
an aggregate principal amount of $750,000,000 outstanding, of
which not more than $350,000,000 may secure outstanding Debt
of the Borrower and its Material Subsidiaries that are
Domestic Subsidiaries;
(vii) the replacement, extension or renewal of any
Lien permitted by clause (ii), (iv) or (v) above upon or in
the same property theretofore subject thereto, provided that
the replacement, extension or renewal of the Debt secured
thereby shall have occurred without any (A) increase in the
amount thereof other than to finance fees and expenses
incurred in connection with such extension, renewal,
refinancing or replacement, or (B) change in any direct or
contingent obligor thereunder; and
(viii) Liens securing Debt owing to the Borrower or
any of its Subsidiaries.
(b) Mergers, Etc. Merge or consolidate with or into any
Person, or permit any of its Material Subsidiaries to do so, except:
(i) mergers between the Borrower and its Subsidiaries
in which the Borrower is the surviving entity;
35
(ii) mergers between Subsidiaries of the Borrower;
(iii) mergers with a third-party in which the
Borrower is the surviving entity or where the surviving entity
is, or becomes, a Subsidiary of the Borrower;
(iv) mergers of a Subsidiary of the Borrower with a
third-party as part of a sale or other disposition of all or
any part of such Subsidiary not prohibited by Section 5.02(d);
and
(v) liquidations of any Subsidiary of the Borrower;
provided, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result
therefrom.
(c) Subsidiary Debt. Permit any of its Wholly-Owned
Subsidiaries that are not Guarantors to create or suffer to exist any
Debt, other than:
(i) Debt in connection with Qualified Receivables
Transactions and Third-Party Vendor Financing Programs;
(ii) Debt existing on the Effective Date;
(iii) Debt owed to the Borrower or to any Subsidiary
of the Borrower;
(iv) Debt (including, without limitation, capital
leases) incurred solely for the purpose of financing the
acquisition, construction or improvement of any real property,
business, equipment or fixed or capital asset acquired or held
by the Borrower or any Subsidiary, in each case incurred
within 180 days of any such acquisition, construction or
improvement;
(v) Debt secured by Liens permitted under Section
5.02(a)(v) and Debt existing at the time any Person is merged
into or consolidated with the Borrower or any Subsidiary of
the Borrower or becomes a Subsidiary of the Borrower;
(vi) Debt incurred by Foreign Subsidiaries for
working capital purposes or otherwise in the ordinary course
of business (but excluding, in any event, any public capital
markets Debt);
(vii) Debt in respect of acceptances, letters of
credit or similar extensions of credit that (A) do not support
obligations for borrowed money prohibited hereby and (B) are
not drawn upon (or, if drawn upon, are reimbursed within five
Business Days following payment thereof);
(viii) other Debt which, together with Debt secured
by Liens permitted under Section 5.02(a)(vi) above, does not
exceed (without duplication) at the time such Debt is incurred
an aggregate principal amount of $750,000,000 outstanding, of
which not more than $350,000,000 outstanding may be incurred
by Wholly-Owned Subsidiaries that are Domestic Subsidiaries;
36
(ix) indorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business;
(x) Debt arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of
business, provided that such Debt is extinguished within five
Business Days of incurrence;
(xi) Debt under direct or indirect guarantees in
respect of, or obligations (contingent or otherwise) to
purchase or acquire, or otherwise to assure a creditor against
loss in respect of, Debt of another Wholly-Owned Subsidiary of
the Borrower not prohibited by this Section 5.02(c);
(xii) Debt extending the maturity of, or refunding or
refinancing, in whole or in part, the Debt existing or
permitted to be incurred under clauses (ii), (iv) and (v)
above or Debt incurred by a Finance SPE, provided that such
extension, renewal, refinancing or replacement shall have
occurred without (A) increase in the amount thereof other than
to finance fees and expenses incurred in connection with such
extension, renewal, refinancing or replacement, or (B) unless
the Debt extending, renewing, refinancing or replacing secured
Debt is unsecured, any change in any direct or contingent
obligor thereunder; and
(xiii) Debt under the $2,000,000,000 Amended and
Restated Credit Agreement dated as of April 30, 2007 among the
Borrower, the lenders parties thereto, and Citibank, N.A., as
administrative agent, and the promissory notes issued
thereunder.
(d) Sale of All or Substantially All Assets. Sell, lease,
transfer or otherwise dispose of all or substantially all of its
assets, in each case for the Borrower and the Borrower and its
Subsidiaries taken as a whole, except in connection with (i) a
transaction authorized by Section 5.02(b) or (ii) any Qualified
Receivables Transaction or Third-Party Vendor Financing Programs.
(e) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Material Subsidiaries to enter into or suffer to exist, any agreement
or arrangement limiting the ability of any of its Material Subsidiaries
(x) to create or permit to exist any Lien on any of its property or (y)
to declare or pay dividends or other distributions in respect of its
Equity Interests or repay or prepay any Debt owed to, make loans or
advances to, or otherwise transfer assets to or make investments in,
the Borrower or any Material Subsidiary of the Borrower (including
through a covenant restricting dividends, loans, asset transfers or
investments or a financial covenant which has the effect thereof),
except (i) restrictions, limitations, conditions and prohibitions
existing on the date hereof, (ii) restrictions, limitations, conditions
and prohibitions under or imposed by any indenture, agreement or
instrument existing on the date hereof (including this Agreement) and
any similar indentures, agreements or instruments to the extent such
restrictions, limitations conditions and
37
prohibitions are no more restrictive than those set forth in such
existing indentures, agreements or instruments, (iii) any agreement in
effect at the time a Person first became a Material Subsidiary of the
Borrower, so long as such agreement was not entered into solely in
contemplation of such Person becoming a Material Subsidiary of the
Borrower, (iv) any restrictions consisting of customary provisions
restricting assignment, subletting or other transfers contained in
leases, licenses and joint ventures and other agreements so long as
such restrictions do not extend to assets other than those that are the
subject of such lease, license, joint venture or other agreement, (v)
restrictions with respect to any asset or Subsidiary of the Borrower
pending the close of the sale of such asset or such Subsidiary, (vi)
any restriction or encumbrance on the transfer of any assets subject to
the Liens permitted by Section 5.02(a), (vii) under applicable law
(including at the direction of any regulatory agency or department), or
(viii) restrictions, limitations, conditions and prohibitions imposed
in respect of the types of assets subject to, and any other
restrictions consisting of customary provisions in connection with, any
Third-Party Vendor Financing Program or any Qualified Receivables
Transaction.
(f) Speculative Hedge Agreements. Engage, or permit any of its
Material Subsidiaries to engage, in any transaction involving Hedge
Agreements except in the ordinary course of business and not for
speculative purposes.
(g) Change in Nature of Business. Engage, together with its
Wholly-Owned Subsidiaries (other than IP Companies), in any business as
their principal lines of business, taken as a whole, other than the
principal lines of business engaged in by the Borrower and its
Subsidiaries, taken as a whole, on the date hereof and similar or
related businesses. For purposes of the foregoing, "IP Company" means
any Person, whether now existing or hereafter formed, in which the
Borrower or any of its Wholly-Owned Subsidiaries owns or acquires any
Equity Interests, which Person has, as its sole primary business, one
or more of the following: (i) research and development, (ii) the
generation or management of intellectual property, (iii) the
commercialization or maximization of the value of intellectual property
developed by or transferred to such Person by the Borrower or one or
more of its Wholly-Owned Subsidiaries, and (iv) activities incidental
thereto.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will, with respect to each Fiscal Quarter occurring after the date
hereof:
(a) Leverage Ratio. Maintain a ratio of Debt for Borrowed
Money as of the end of such Fiscal Quarter to Consolidated EBITDA for
the period of four Fiscal Quarters then ended of not greater than the
amount set forth below for each period set forth below:
----------------------------------------------- -----------
Fiscal Quarter(s) ended Ratio
----------------------------------------------- -----------
On or prior to June 30, 2007 4.00:1
----------------------------------------------- -----------
September 30, 2007 through December 31, 2007 3.75:1
----------------------------------------------- -----------
38
----------------------------------------------- -----------
March 31, 2008 through December 31, 2008 3.50:1
----------------------------------------------- -----------
March 31, 2009 and thereafter 3.25:1
----------------------------------------------- -----------
(b) Interest Coverage Ratio. Maintain a ratio of Consolidated
EBITDA to Consolidated Interest Expense, in each case for the period of
four Fiscal Quarters then ended of not less than 3.00:1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower shall
fail to pay any interest on any Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note within
three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein
or in connection with this Agreement shall prove to have been incorrect
in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(d) (with respect
to the Borrower), (h), (i)(iii) or (i)(v), 5.02 or 5.03, (ii) the
Borrower shall fail to perform or observe any term, covenant or
agreement contained in Section 5.01(i)(i), (ii), (iv) or (vi) if such
failure shall remain unremedied for five Business Days after written
notice thereof shall have been given to the Borrower by the Agent at
the request of any Lender, or (iii) the Borrower shall fail to perform
or observe any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if such failure shall
remain unremedied for 30 days after written notice thereof shall have
been given to the Borrower by the Agent at the request of any Lender;
or
(d) The Borrower or any of its Wholly-Owned Subsidiaries shall
fail to pay any principal of or premium or interest on any Debt that is
outstanding in a principal amount, or net obligations in respect of
Hedge Agreements, of at least $100,000,000 in the aggregate (but
excluding Debt outstanding hereunder) of the Borrower or such
Wholly-Owned Subsidiary (as the case may be), when the same becomes due
and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt or Hedge Agreement obligations and shall continue after the
applicable grace
39
period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt or Hedge Agreement
obligations; or any such Debt or Hedge Agreement obligations shall be
declared to be due and payable, or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption,
or in the case of secured Debt that becomes due as a result of a
voluntary sale or transfer of the property securing such Debt),
purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt or Hedge Agreement obligations shall be required to
be made (other than in the case of secured Debt that becomes due as a
result of a voluntary sale or transfer of the property securing such
Debt), in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Material Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its Material
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property)
shall occur; or the Borrower or any of its Material Subsidiaries shall
take any corporate action to authorize any of the actions set forth
above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of
$100,000,000 in the aggregate shall be rendered against the Borrower or
any of its Wholly-Owned Subsidiaries and either (i) enforcement
proceedings to attach or levy upon any assets of the Borrower or its
Wholly-Owned Subsidiaries shall have been commenced by any creditor to
enforce such judgment or order or (ii) such judgment or order shall not
be discharged and there shall be any period of 45 consecutive days
during which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect; provided,
however, that any such judgment or order shall not be subject to this
Section 6.01(f) to the extent and for so long as (x) the amount of such
judgment or order is covered by a valid and binding policy of insurance
between the defendant and the insurer covering payment thereof and (y)
such insurer, which shall be rated at least "A-" by A.M. Best Company,
has been notified of, and has not denied in writing the claim made for
payment of, the amount of such judgment or order; or
(g) (i) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the
Borrower (or other securities convertible into such Voting Stock)
representing 35% or more of the combined voting power of all Voting
Stock of the
40
Borrower; or (ii) during any period of up to 24 consecutive months,
commencing after the date of this Agreement, individuals who at the
beginning of such 24-month period were directors of the Borrower,
together with individuals who were either (x) elected by a majority of
the remaining members of the board of directors of the Borrower, (y)
nominated for election by a majority of the remaining members of the
board of directors of the Borrower or (z) appointed by directors so
nominated, shall cease for any reason to constitute a majority of the
board of directors of the Borrower; or
(h) The Borrower or any of its ERISA Affiliates shall incur,
or shall be reasonably likely to incur liability in excess of
$100,000,000 in the aggregate in any year as a result of one or more of
the following: (i) the occurrence of any ERISA Event; (ii) the partial
or complete withdrawal of the Borrower or any of its ERISA Affiliates
from a Multiemployer Plan; or (iii) the reorganization or termination
of a Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Advances, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
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SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the Lender that made any Advance as the holder of the Debt resulting therefrom
until the Agent receives and accepts an Assignment and Acceptance entered into
by such Lender, as assignor, and an Eligible Assignee, as assignee, as provided
in Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance, observance or
satisfaction of any of the terms, covenants or conditions of this Agreement on
the part of the Borrower or the existence at any time of any Default or to
inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; and (vi) shall incur no liability under
or in respect of this Agreement by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose any information obtained or received by it or any
of its Affiliates relating to the Borrower or any of its Subsidiaries to the
extent such information was obtained or received in any capacity other than as
Agent.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender severally
agrees to indemnify the Agent (to the extent not reimbursed by the Borrower)
from and against such Lender's
42
Ratable Share of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement or any
action taken or omitted by the Agent under this Agreement (collectively, the
"Indemnified Costs"), provided that no Lender shall be liable for any portion of
the Indemnified Costs resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Agent promptly upon demand for its ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Agent is not reimbursed for such expenses by the
Borrower. In the case of any investigation, litigation or proceeding giving rise
to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a
third party.
(b) The failure of any Lender to reimburse the Agent promptly
upon demand for its Ratable Share of any amount required to be paid by the
Lenders to the Agent as provided herein shall not relieve any other Lender of
its obligation hereunder to reimburse the Agent for its Ratable Share of such
amount, but no Lender shall be responsible for the failure of any other Lender
to reimburse the Agent for such other Lender's Ratable Share of such amount.
Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 7.05 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the Notes. The Agent agrees to return
to the Lenders their respective Ratable Shares of any amounts paid under this
Section 7.05 that are subsequently reimbursed by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent, provided that, unless an Event of Default has occurred and is
continuing, such successor Agent shall be reasonably satisfactory to the
Borrower. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be (i) a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000, and (ii)
unless an Event of Default has occurred and is continuing, reasonably
satisfactory to the Borrower. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, discretion, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VIII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
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SECTION 7.07. Other Agents. Each Lender hereby acknowledges
that neither the syndication agent nor any other Lender designated as any
"Agent" on the signature pages hereof has any liability hereunder other than in
its capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all affected Lenders, do any of the following:
(a) reduce the principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, (b) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder, (c) increase the Commitments of the Lenders or extend the Commitments
of the Lenders, (d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder or (e)
amend this Section 8.01; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. (a) All notices and other
communications provided for hereunder shall be either (x) in writing (including
telecopier communication) and mailed, telecopied or delivered or (y) as and to
the extent set forth in Section 8.02(b) and in the proviso to this Section
8.02(a), if to the Borrower, at the Borrower's address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President and Treasurer (fax no.
▇▇▇-▇▇▇-▇▇▇▇), with a copy to General Counsel (fax no. (▇▇▇) ▇▇▇-▇▇▇▇); if to
any Initial Lender, at its Domestic Lending Office specified opposite its name
on Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Bank Loan Syndications Department; or, as to the Borrower or
the Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such other
address as shall be designated by such party in a written notice to the Borrower
and the Agent, provided that materials required to be delivered pursuant to
Section 5.01(i)(i), (ii) or (iv) shall be delivered to the Agent as specified in
Section 8.02(b) or as otherwise specified to the Borrower by the Agent. All such
notices and communications shall, when mailed, telecopied or e-mailed, be
effective when deposited in the mails, telecopied or confirmed by e-mail,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VIII shall not be effective until received by the Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
44
(b) So long as Citibank or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Section 5.01(i)(i), (ii) and (iv)
shall be delivered to the Agent in an electronic medium in a format acceptable
to the Agent and the Lenders by e-mail at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. The
Borrower agrees that the Agent may make such materials, as well as any other
written information, documents, instruments and other material relating to the
Borrower, any of its Subsidiaries or any other materials or matters relating to
this Agreement, the Notes or any of the transactions contemplated hereby except
notices pursuant to Article II (collectively, the "Communications") available to
the Lenders by posting such notices on Intralinks or a substantially similar
electronic system (the "Platform"). The Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as available" and (iii)
neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or
completeness of the Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Communications or the Platform. No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the
Platform.
(c) Each Lender agrees that notice to it (as provided in the
next sentence) (a "Notice") specifying that any Communications have been posted
to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this Agreement;
provided that if requested by any Lender the Agent shall deliver a copy of the
Communications to such Lender by email or telecopier. Each Lender agrees (i) to
notify the Agent in writing of such Lender's e-mail address to which a Notice
may be sent by electronic transmission (including by electronic communication)
on or before the date such Lender becomes a party to this Agreement (and from
time to time thereafter to ensure that the Agent has on record an effective
e-mail address for such Lender) and (ii) that any Notice may be sent to such
e-mail address.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all documented reasonable out-of-pocket costs and expenses of the
Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, (A) all due diligence,
syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrower further agrees to pay on
demand all out-of-pocket costs and expenses of the Agent and the Lenders, if
any, in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes and the other documents
to be delivered
45
hereunder, including, without limitation, reasonable fees and expenses of
counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses (other than lost profits),
liabilities and documented out-of-pocket expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of a defense in
connection therewith) (i) the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances or (ii) the actual or alleged presence of Hazardous Materials on any
property of the Borrower or any of its Subsidiaries or any Environmental Action
relating in any way to the Borrower or any of its Subsidiaries, except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 8.04(b) applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by the Borrower, its
directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower also agrees not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, on any theory of liability, arising out of or otherwise relating to
the Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender (i) other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.07, 2.09 or 2.11,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender other than on the last day
of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a result of a
demand by the Borrower pursuant to Section 8.07(a) or (ii) as a result of a
payment or Conversion pursuant to Section 2.07, 2.09 or 2.11, the Borrower
shall, upon demand by such Lender (with a copy of such demand to the Agent), pay
to the Agent for the account of such Lender any amounts required to compensate
such Lender for any additional losses (other than lost profits), costs or
expenses that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.10, 2.13 and
46
8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default under Section 6.01(a) or (b) (i)
the occurrence and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by Section 6.01
to authorize the Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower or the Borrower against any and all of the obligations of the
Borrower or the Borrower now or hereafter existing under this Agreement to such
Lender and the Note held by such Lender, whether or not such Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower or the
Borrower after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Lender and its Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may, with the consent of the Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower (which consents shall not be
unreasonably withheld or delayed) and, if demanded by the Borrower (at any time
following a demand by such Lender pursuant to Section 2.10 or 2.13) upon at
least five Business Days' notice to such Lender and the Agent shall, assign to
one or more Persons all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) except in
the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the amount of the Commitment of the assigning
Lender being assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such assignment) shall in
no event be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, unless the Borrower and the Agent otherwise agree, (iii) each
such assignment shall be to an Eligible Assignee, (iv) each such assignment made
as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall
be arranged by the Borrower after consultation with the
47
Agent and shall be either an assignment of all of the rights and obligations of
the assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to this
Section 8.07(a) unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note subject to such
assignment and a processing and recordation fee of $3,500 payable by the parties
to each such assignment, provided, however, that in the case of each assignment
made as a result of a demand by the Borrower, such recordation fee shall be
payable by the Borrower except that no such recordation fee shall be payable in
the case of an assignment made at the request of the Borrower to an Eligible
Assignee that is an existing Lender. Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in each Assignment
and Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights (other than its rights under
Sections 2.10, 2.13 and 8.04 to the extent any claim thereunder relates to an
event arising prior to such assignment) and be released from its obligations
(other than its obligations under Section 7.05 to the extent any claim
thereunder relates to an event arising prior to such assignment) under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this
48
Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, and duly
approved by the Borrower (to the extent such approval is required in accordance
with this Section 8.07), the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Borrower.
(d) The Agent, acting for this purpose as an agent of the
Borrower, shall maintain at its address referred to in Section 8.02 a copy of
each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the Commitment
of, principal amount of the Advances owing to, each Lender from time to time
(the "Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Agent and the
Lenders shall treat each Person (other than a participant) whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than the Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and any Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, provided that as a
pre-condition to being permitted to provide such approval or consent, the name
and address of such participant must be recorded in the register in accordance
with subsection (d) above as though such participant were an assignee.
49
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Company Information relating to the Borrower
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and any Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. Neither the Agent nor any
Lender may disclose to any Person any confidential, proprietary or non-public
information of the Borrower or any of its Subsidiaries furnished to the Agent or
the Lenders by the Borrower or any of its Subsidiaries (such information being
referred to collectively herein as the "Company Information"), except that each
of the Agent and each of the Lenders may disclose Company Information (i) to its
and its affiliates' employees, officers, directors, agents and advisors (it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Company Information and instructed
to keep such Company Information confidential on substantially the same terms as
provided herein), (ii) to the extent requested by any regulatory authority,
(iii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iv) to any other party to this Agreement,
(v) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (vi) subject to an agreement containing provisions substantially the
same as those of this Section 8.08, to any assignee or participant or
prospective assignee or participant, (vii) to the extent such Company
Information (A) is or becomes generally available to the public on a
non-confidential basis other than as a result of a breach of this Section 8.08
by the Agent or such Lender, or (B) is or becomes available to the Agent or such
Lender on a nonconfidential basis from a source other than the Borrower, the
Agent or another Lender and (viii) with the consent of the Borrower.
SECTION 8.08. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.10. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting
50
in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the Notes, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. The Borrower
hereby further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to the Borrower at its address
specified pursuant to Section 8.02. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement
or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.11. Patriot Act Notice. Each Lender and the Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that
pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender or the Agent, as applicable, to identify the Borrower in
accordance with the Patriot Act. The Borrower shall provide such information and
take such actions as are reasonably requested by the Agent or any Lenders in
order to assist the Agent and the Lenders in maintaining compliance with the
Patriot Act.
51
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
XEROX CORPORATION
By
---------------------------
Title:
CITIBANK, N.A.,
as Agent
By
---------------------------
Title:
52
Initial Lenders
---------------
CITIBANK, N.A.,
By
---------------------------
Title:
JPMORGAN CHASE BANK, N.A.
By
---------------------------
Title:
53
SCHEDULE I
APPLICABLE LENDING OFFICES
--------------------------------- ------------------ ------------------------------ ----------------------------
Name of Initial Lender Commitment Domestic Lending Office Eurodollar Lending Office
--------------------------------- ------------------ ------------------------------ ----------------------------
--------------------------------- ------------------ ------------------------------ ----------------------------
Citibank, N.A. $666,666,667 Two Penns Way ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------- ------------------ ------------------------------ ----------------------------
JPMorgan Chase Bank, N.A. $333,333,333 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
10th Floor 10th Floor
Houston, TX 77002 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Toyin Ojeahere Attn: Toyin Ojeahere
T: ▇▇▇ ▇▇▇-▇▇▇▇ T: ▇▇▇ ▇▇▇-▇▇▇▇
F: ▇▇▇ ▇▇▇-▇▇▇▇ F: ▇▇▇ ▇▇▇-▇▇▇▇
--------------------------------- ------------------ ------------------------------ ----------------------------
--------------------------------- ------------------ ------------------------------ ----------------------------
Total: $1,000,000,000
--------------------------------- ------------------ ------------------------------ ----------------------------
EXHIBIT A
FORM OF PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 20__
FOR VALUE RECEIVED, the undersigned, XEROX CORPORATION, a New
York corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$[amount of the Lender's Commitment
in figures] or, if less, the aggregate outstanding principal amount of the
Advances made by the Lender to the Borrower, pursuant to the Bridge Credit
Agreement dated as of April 30, 2007 among the Borrower, the Lender and certain
other lenders parties thereto, and Citibank, N.A., as Agent for the Lender and
such other lenders (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance made by the Lender to the Borrower from the date of such
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest in respect of each Advance made by
the Lender to the Borrower are payable in lawful money of the United States of
America to the Agent at its account maintained at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each Advance owing to the Lender by the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to the
Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the U.S. dollar amount first above mentioned, the indebtedness of
the Borrower resulting from each such Advance being evidenced by this Promissory
Note and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
XEROX CORPORATION
By
------------------------
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
------------ --------------- ----------------- ------------------ --------------
Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
------------ --------------- ----------------- ------------------ --------------
2
EXHIBIT B
FORM OF NOTICE OF BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, Xerox Corporation, refers to the Bridge
Credit Agreement, dated as of April 30, 2007 (as amended or modified from time
to time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto and
Citibank, N.A., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is __________,
20__.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$__________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement (except the representations set forth in
the last sentence of subsection (e) thereof and in subsection (f)(i)
thereof) are correct, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date (except to the extent such representations
and warranties specifically relate to an earlier date, in which case
such representations and warranties shall have been true on and as of
such earlier date); and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
XEROX CORPORATION
By
------------------------
Title:
2
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Bridge Credit Agreement dated as of April 30,
2007 (as amended or modified from time to time, the "Credit Agreement") among
Xerox Corporation, a New York corporation (the "Borrower"), the Lenders (as
defined in the Credit Agreement) and Citibank, N.A., as agent for the Lenders
(the "Agent"). Terms defined in the Credit Agreement are used herein with the
same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement. After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Advances owing to the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, the Credit
Agreement or any other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) attaches the Note[,
if any,] held by the Assignor [and requests that the Agent exchange such Note
for a new Note payable to the order of [the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new Notes payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and] the Assignor in an amount equal to the Commitment
retained by the Assignor under the Credit Agreement[, respectively,] as
specified on Schedule 1 hereto].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent
on its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a Lender;
and (vi) attaches any U.S. Internal Revenue Service forms required under Section
2.13 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and facility fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
2
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
[Assignee's Commitment: $______
Aggregate outstanding principal amount of Advances assigned: $______
Principal amount of Note payable to Assignee: $______
Principal amount of Note payable to Assignor: $______]
Effective Date*: _______________, 20__
[NAME OF ASSIGNOR], as Assignor
By
------------------------
Title:
Dated: _______________, 20__
[NAME OF ASSIGNEE], as Assignee
By
------------------------
Title:
Dated: _______________, 20__
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
---------------
* This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
3
Accepted [and Approved]** this
__________ day of _______________, 20__
CITIBANK, N.A., as Agent
By
------------------------------------------
Title:
[Approved this __________ day
of _______________, 20__
XEROX CORPORATION
By ]*
------------------------------------------
Title:
----------------
** Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
4
EXHIBIT D-1
FORM OF OPINION OF COUNSEL FOR THE BORROWER
April 30, 2007
Citibank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and each Lender identified on Schedule I hereto
Re: Xerox Corporation/Credit Agreement
----------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Xerox Corporation, a
New York corporation (the "Borrower"), in connection with the preparation,
execution and delivery of (a) the Bridge Credit Agreement dated the date
hereof (the "Credit Agreement"), among the Borrower, the lenders from time
to time party thereto (the "Lenders"), Citibank, N.A., as administrative
agent for the Lenders (in such capacity, the "Agent"), JPMorgan Chase
Bank, N.A., as syndication agent, and Citigroup Global Markets Inc. and
▇.▇. ▇▇▇▇▇▇ Securities Inc., as Joint Lead Arrangers and Joint
Bookrunners, and (b) certain other agreements, instruments and documents
related to the Credit Agreement. This opinion is being delivered pursuant
to Section 3.01(f)(iv)(A) of the Credit Agreement. Capitalized terms used
herein and not otherwise defined herein shall have the same meanings
herein as ascribed thereto in the Credit Agreement.
In our examination we have assumed the genuineness of all
signatures including endorsements, the legal capacity of natural persons,
the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as
facsimile, electronic, certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts material to
this opinion which we did not independently establish or verify, we have
relied upon statements and representations of the Borrower and their
officers and other representatives and of public officials, including the
facts and conclusions set forth therein.
In rendering the opinions set forth herein, we have
examined and relied on originals or copies of the following:
(a) the Credit Agreement;
(b) the Notes, dated the date hereof, issued to each of
PNC Bank, National Association and the Bank of New York (collectively, the
"Notes");
(c) a certificate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and
Treasurer of the Borrower, dated the date hereof, copies of which are
attached as Exhibit A hereto (the "Opinion Certificate"); and
(d) such other documents as we have deemed necessary or
appropriate as a basis for the opinions set forth below.
We express no opinion as to the laws of any jurisdiction
other than (i) the Applicable Laws of the State of New York and (ii) the
Applicable Laws of the United States of America (including, without
limitation, Regulations U and X of the Federal Reserve Board).
"Applicable Contracts" mean those agreements or
instruments set forth on Schedule I to the Opinion Certificate.
"Applicable Laws" shall mean those laws, rules and regulations which, in
our experience, are normally applicable to transactions of the type
contemplated by the Credit Agreement, without our having made any special
investigation as to the applicability of any specific law, rule or
regulation, and which are not the subject of a specific opinion herein
referring expressly to a particular law or laws. "Governmental Approval"
means any consent, approval, license, authorization or validation of, or
filing, recording or registration with, any governmental authority
pursuant to the Applicable Laws of the State of New York or the Applicable
Laws of the United States of America. "Applicable Orders" means those
orders or decrees of governmental authorities identified on Schedule II to
the Opinion Certificate. "New York UCC" means the Uniform Commercial Code
as in effect on the date hereof in the State of New York (without regard
to laws referenced in Section 9-201 thereof).
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. The Credit Agreement and the Notes constitute valid
and binding obligations of the Borrower, enforceable against the Borrower
in accordance with their terms under the Applicable Laws of the State of
New York.
2
2. The execution and delivery by the Borrower of the
Credit Agreement and the Notes and the performance by the Borrower of its
obligations under the Credit Agreement and the Notes do not constitute a
violation of, or a default under, any Applicable Contracts. We do not
express any opinion, however, as to whether the execution, delivery or
performance by the Borrower of the Credit Agreement or the Notes will
constitute a violation of, or a default under, any covenant, restriction
or provision with respect to financial ratios or tests or any aspect of
the financial condition or results of operations of the Borrower.
3. Neither the execution, delivery or performance by the
Borrower of the Credit Agreement and the Notes nor the compliance by the
Borrower with the terms and provisions thereof will contravene any
provision of any Applicable Law of the State of New York or any Applicable
Law of the United States of America.
4. No Governmental Approval, which has not been obtained
or taken and is not in full force and effect, is required to authorize, or
is required in connection with, the execution or delivery of the Credit
Agreement and the Notes by the Borrower or the enforceability of the
Credit Agreement against the Borrower.
5. Neither the execution, delivery or performance by the
Borrower of its obligations under the Credit Agreement and the Notes will
contravene any Applicable Order against the Borrower.
Our opinions are subject to the following assumptions and
qualifications:
(a) enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in equity or at law);
(b) we have assumed that the Credit Agreement constitutes
the valid and binding obligation of each party to the Credit Agreement
(other than the Borrower) enforceable against each such other party in
accordance with its terms;
(c) we express no opinion as to the effect on the
opinions expressed herein of (i) the compliance or non-compliance of any
party (other than the Borrower to the extent expressly set forth herein)
to the Credit Agreement with any state, federal or other laws or
regulations applicable to them or (ii) the legal or regulatory status or
the nature of the business of any party (other than the Borrower to the
extent expressly set forth herein);
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(d) we express no opinion as to the enforceability of any
rights to contribution or indemnification provided for in the Credit
Agreement which are violative of the public policy underlying any law,
rule or regulation (including any federal or state securities law, rule or
regulation);
(e) we express no opinion on the enforceability of any
provision in the Credit Agreement purporting to prohibit, restrict or
condition the assignment of rights under the Credit Agreement to the
extent such restriction on assignability is governed by the New York UCC;
(f) we express no opinion as to the enforceability of
Article VII of the Credit Agreement; and
(g) we express no opinion with respect to any provision
of the Credit Agreement to the extent it authorizes or permits any
purchaser of a participation interest to set-off or apply any deposit,
property or indebtedness with respect to any participation interest.
In rendering the foregoing opinions, we have assumed,
with your consent, that:
(a) the Borrower is duly organized under the laws of the
State of New York;
(b) the Borrower, is validly existing and in good
standing as a corporation, under the laws of the State of New York;
(c) the Borrower has the power and authority to execute,
deliver and perform all of its obligations under the Credit Agreement and
the Notes and the execution and delivery by the Borrower of the Credit
Agreement and the Notes and the consummation by the Borrower of the
transactions contemplated thereby have been duly authorized by all
requisite action the party of the Borrower;
(d) the Credit Agreement and the Notes have been duly
executed and delivered by the Borrower;
(e) the execution, delivery and performance by the
Borrower of any of its obligations under the Credit Agreement and the
Notes does not and will not conflict with, contravene, violate or
constitute a default under (i) the certificate of incorporation or the
by-laws of the Borrower; (ii) any lease, indenture, instrument or other
agreement to which the Borrower or its property is subject (other than
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the Applicable Contracts as to which we express our opinion in paragraph
2 herein), (iii) any rule, law or regulation to which the Borrower is
subject (other than the Applicable Laws of the State of New York or
Applicable Laws of the United States of America as to which we express our
opinion in paragraph 3 herein) or (iv) any judicial or administrative
order or decree of any governmental authority (other than Applicable
Orders as to which we express our opinion in paragraph 5 herein); and
(f) no authorization, consent or other approval of,
notice to or filing with any court, governmental authority or regulatory
body (other than Governmental Approvals as to which we express our opinion
in paragraph 4 herein) is required to authorize or is required in
connection with the execution, delivery or performance by the Borrower of
the Credit Agreement or the Notes or the transactions contemplated
thereby.
We understand that you are separately receiving an
opinion with respect to certain of the foregoing assumptions from ▇▇▇▇▇▇
▇. ▇▇▇, Associate General Counsel, Corporate, Finance and Ventures of the
Borrower and we are advised that such opinion contain qualifications. Our
opinions herein stated are based on the assumptions specified above and we
express no opinion as to the effect on the opinions herein stated of the
qualifications contained in such other opinions.
This opinion is being furnished only to you in connection
with the Credit Agreement and is solely for your benefit and is not to be
used, circulated, quoted or otherwise referred to for any other purpose or
relied upon by any other person or entity for any purpose without our
prior written consent, except that any assignee that becomes a Lender in
accordance with the provisions of Section 8.07 of the Credit Agreement may
rely on this opinion as if addressed and delivered to such assignee on the
date hereof; provided that each prospective assignee or assignee of any
Lender may be shown this opinion, except that such prospective assignee or
assignee may not rely on this opinion unless and until such prospective
assignee or assignee becomes a Lender in accordance with the provisions of
Section 8.07 of the Credit Agreement.
Very truly yours,
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SCHEDULE I
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LENDERS
Citibank, N.A
JPMorgan Chase Bank, N.A
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EXHIBIT D-2
FORM OF OPINION OF COUNSEL OF THE BORROWER
April 30, 2007
To the Lenders and Agent parties to
the Credit Agreement
referred to below
XEROX CORPORATION
-----------------
Dear Sirs:
The undersigned, an attorney-at-law admitted to practice in the State of New
York, is Associate General Counsel, Corporate, Finance and Ventures of Xerox
Corporation, a New York corporation (the "Borrower"). As such I or other lawyers
in the Office of General Counsel of the Borrower who report directly to me ("my
reports") are familiar with the proceedings taken by the Borrower in connection
with the preparation, execution and delivery of the Agreement and the Notes
referred to below. This opinion is furnished to you pursuant to Section
3.01(f)(iv)(B) of the Bridge Credit Agreement, dated as of the date hereof (the
"Credit Agreement"), among the Borrower, the lenders party thereto, Citibank,
N.A., as Agent, JPMorgan Chase Bank, N.A., as syndication agent, and Citigroup
Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Joint Lead Arrangers and
Joint Bookrunners . All capitalized terms used herein and not otherwise defined
herein shall have the respective meanings assigned to such terms in the Credit
Agreement.
In rendering the opinions set forth herein, either I or my reports have examined
the following:
(1) the Credit Agreement;
(2) the revolving notes (the "Notes") of the Borrower contemplated by
the Credit Agreement and delivered on the date hereof;
(3) the documents relating to the Borrower furnished pursuant to
Section 3.01(f) of the Credit Agreement, which include the following:
(i) certified copies of (y) the resolutions of the Board of
Directors of the Borrower approving the Agreement and the
Notes and (z) all documents evidencing other necessary
corporate or similar action and governmental approvals, if
any, with respect to the Agreement and the Notes; and
(ii) the Restated Certificate of Incorporation and the By-laws
of the Borrower, each as amended to the date hereof (the
"Charter" and the "By-
Laws", respectively); and
(4) such other documents, agreements and instruments, and such laws,
rules, regulations, orders, decrees, writs, judgments, awards,
injunctions, and the like, as I have deemed necessary as a basis for
the opinions hereinafter expressed.
In the foregoing examination of the documents referred to above, I and my
reports have assumed the authenticity of all such documents submitted to us as
originals, the genuineness of all signatures (other than signatures of the
Borrower), and the conformity to the originals of such documents submitted to us
as copies. I have relied, as to factual matters, on the documents I and my
reports have examined. I also have assumed that each of the lenders, the Agent
and the other parties thereto (other than the Borrower) has duly executed and
delivered, pursuant to due authorization, the Agreement.
Based upon the foregoing, it is my opinion that:
(i) The Borrower is duly organized, validly existing and in good
standing under the laws of the State of New York.
(ii) The Borrower has corporate power and authority to execute,
deliver and perform the Agreement and the Notes and the
consummation by the Borrower of the transactions contemplated
thereby have been duly authorized by all requisite corporate
or similar action on the part of the Borrower.
(iii) The Agreement and the Notes have been duly executed and
delivered by the Borrower.
(iv) Except for the Disclosed Matters, there is no pending or, to
my knowledge, threatened action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Subsidiaries before any court, governmental agency or
arbitrator that (x) could be reasonably likely to have a
Material Adverse Effect or (y) purports to affect the
legality, validity or enforceability of the Agreement or any
Note or the consummation of the transactions contemplated
thereby.
(v) The due authorization, execution or delivery by the Borrower
of the Agreement and the Notes, the performance by the
Borrower of its obligations thereunder, the consummation of
the transactions contemplated by the Agreement and the Notes
and the fulfillment of the terms of the Agreement and each of
the Notes will not conflict with, result in a breach of, or
constitute a default under the Charter or By-Laws of the
Borrower or the terms of any indenture or other material
agreement or instrument to which the Borrower or any of the
Borrower's subsidiaries is a party or bound, or any order,
decree, judgment or regulation (other than any federal or
state securities or blue sky laws, rules or regulations) known
to me to be generally applicable to the Borrower or any of the
Borrower's subsidiaries of any court, regulatory body,
administrative agency,
governmental body or arbitrator having jurisdiction over the
Borrower or any of the Borrower's subsidiaries.
My opinions are subject to the following qualifications:
(a) I am qualified to practice law in the State of New York. The
opinions expressed herein are limited to the law of the State of New
York and the Federal law of the United States.
(b) The opinions expressed herein are given as of the date hereof and I
undertake no obligation and hereby disclaim any obligation to advise
you of any change after the date of this opinion pertaining to any
matter referred to herein.
This opinion is being furnished only to you in connection with the Agreement and
the Notes and is solely for your benefit and is not to be used, circulated,
quoted or otherwise referred to for any other purpose or relied upon by any
other person or entity for any purpose without my prior written consent, except
that any assignee who becomes a Lender in accordance with the provisions of
Section 8.07 of the Credit Agreement may rely on this opinion as if addressed
and delivered to such assignee on the date hereof.
Very truly yours,
▇▇▇▇▇▇ ▇. ▇▇▇
Associate General Counsel
Corporate, Finance and Ventures