EXHIBIT 10
CONFORMED COPY
TWO YEAR COMPETITIVE ADVANCE AND
REVOLVING CREDIT AGREEMENT
Dated as of March 4, 1997, as amended
and restated through February 21, 2002
among
PHH CORPORATION
as Borrower
and
THE LENDERS REFERRED TO HEREIN
and
JPMORGAN CHASE BANK, as Administrative Agent
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Lead Arranger and Bookrunner
TABLE OF CONTENTS
PAGE
1. DEFINITIONS............................................................1
2. THE LOANS.............................................................18
SECTION 2.1. Commitments...........................................18
SECTION 2.2. Loans.................................................18
SECTION 2.3. Use of Proceeds.......................................19
SECTION 2.4. Competitive Bid Procedure.............................19
SECTION 2.5. Revolving Credit Borrowing Procedure..................21
SECTION 2.6. Refinancings..........................................22
SECTION 2.7. Fees..................................................23
SECTION 2.8. Repayment of Loans; Evidence of Debt..................23
SECTION 2.9. Interest on Loans.....................................24
SECTION 2.10. Interest on Overdue Amounts..........................25
SECTION 2.11. Alternate Rate of Interest...........................25
SECTION 2.12. Termination and Reduction of Commitments.............26
SECTION 2.13. Prepayment of Loans..................................26
SECTION 2.14. Eurocurrency Reserve Costs...........................27
SECTION 2.15. Reserve Requirements; Change in Circumstances........27
SECTION 2.16. Change in Legality...................................29
SECTION 2.17. Reimbursement of Lenders.............................30
SECTION 2.18. Pro Rata Treatment...................................30
SECTION 2.19. Right of Setoff......................................31
SECTION 2.20. Manner of Payments...................................31
SECTION 2.21. Withholding Taxes....................................32
SECTION 2.22. Certain Pricing Adjustments..........................33
3. REPRESENTATIONS AND WARRANTIES OF BORROWER............................34
SECTION 3.1. Corporate Existence and Power.........................34
SECTION 3.2. Corporate Authority and No Violation..................34
SECTION 3.3. Governmental and Other Approval and Consents..........35
SECTION 3.4. Financial Statements of Borrower......................35
SECTION 3.5. No Material Adverse Change............................35
SECTION 3.6. [Intentionally Deleted]...............................35
SECTION 3.7. Copyrights, Patents and Other Rights..................35
SECTION 3.8. Title to Properties...................................35
SECTION 3.9. Litigation............................................35
SECTION 3.10. Federal Reserve Regulations..........................36
SECTION 3.11. Investment Company Act...............................36
SECTION 3.12. Enforceability.......................................36
SECTION 3.13. Taxes................................................36
SECTION 3.14. Compliance with ERISA................................36
SECTION 3.15. Disclosure...........................................37
SECTION 3.16. Environmental Liabilities............................37
4. CONDITIONS OF LENDING.................................................37
SECTION 4.1. Conditions Precedent to Effectiveness.................37
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Page
SECTION 4.2. Conditions Precedent to Each Loan.....................39
5. AFFIRMATIVE COVENANTS.................................................39
SECTION 5.1. Financial Statements, Reports, etc....................39
SECTION 5.2. Corporate Existence; Compliance with Statutes.........40
SECTION 5.3. Insurance.............................................41
SECTION 5.4. Taxes and Charges.....................................41
SECTION 5.5. ERISA Compliance and Reports..........................41
SECTION 5.6. Maintenance of and Access to Books and Records;
Examinations....................................................42
SECTION 5.7. Maintenance of Properties.............................42
6. NEGATIVE COVENANTS....................................................42
SECTION 6.1. Limitation on Material Subsidiary Indebtedness........42
SECTION 6.2. [Intentionally deleted]...............................44
SECTION 6.3. Limitation on Transactions with Affiliates............44
SECTION 6.4. Consolidation, Merger, Sale of Assets.................44
SECTION 6.5. Limitations on Liens..................................44
SECTION 6.6. Sale and Leaseback....................................46
SECTION 6.7. Consolidated Net Worth................................46
SECTION 6.8. Ratio of Indebtedness To Consolidated Net Worth.......46
SECTION 6.9. Accounting Practices..................................46
SECTION 6.10. Restrictions Affecting Subsidiaries..................47
7. EVENTS OF DEFAULT.....................................................47
8. THE ADMINISTRATIVE AGENT..............................................49
SECTION 8.1. Administration by Administrative Agent................49
SECTION 8.2. Advances and Payments.................................49
SECTION 8.3. Sharing of Setoffs and Cash Collateral................50
SECTION 8.4. Notice to the Lenders.................................51
SECTION 8.5. Liability of the Administrative Agent.................51
SECTION 8.6. Reimbursement and Indemnification.....................51
SECTION 8.7. Rights of Administrative Agent........................52
SECTION 8.8. Independent Investigation by Lenders..................52
SECTION 8.9. Notice of Transfer....................................52
SECTION 8.10. Successor Administrative Agent.......................52
9. MISCELLANEOUS.........................................................53
SECTION 9.1. Notices...............................................53
SECTION 9.2. Survival of Agreement, Representations and Warranties,
etc.............................................................53
SECTION 9.3. Successors and Assigns; Syndications; Loan Sales;
Participations..................................................53
SECTION 9.4. Expenses; Documentary Taxes...........................57
SECTION 9.5. Indemnity.............................................57
SECTION 9.6. CHOICE OF LAW.........................................58
SECTION 9.7. No Waiver.............................................58
SECTION 9.8. Extension of Maturity.................................58
SECTION 9.9. Amendments, etc.......................................58
SECTION 9.10. Severability.........................................59
SECTION 9.11. SERVICE OF PROCESS; WAIVER OF JURY TRIAL.............59
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SECTION 9.12. Headings.............................................60
SECTION 9.13. Execution in Counterparts............................60
SECTION 9.14. Entire Agreement.....................................60
SECTION 9.15. Foreign Currency Judgments...........................60
SECTION 9.16. [Intentionally Deleted]..............................61
SECTION 9.17. Language.............................................61
SECTION 9.18. [Intentionally Deleted]..............................61
SECTION 9.19. European Economic And Monetary Union.................61
SECTION 9.20. Confidentiality. ...................................63
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SCHEDULES
1.1A Commitments
1.1B Available Foreign Currencies
6.1 Existing Material Subsidiary Indebtedness
6.5 Existing Liens
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Competitive Note
B-1 Opinion of In-house Counsel
B-2 Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
C Form of Assignment and Acceptance
D Form of Compliance Certificate
E-1 Form of Competitive Bid Request
E-2 Form of Competitive Bid Invitation
E-3 Form of Competitive Bid
E-4 Form of Competitive Bid Accept/Reject Letter
F Form of Revolving Credit Borrowing Request
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TWO YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT AGREEMENT (the
"AGREEMENT"), dated as of March 4, 1997, as amended and restated through
February 21, 2002, among PHH CORPORATION, a Maryland corporation (the
"BORROWER"), the Lenders referred to herein and JPMORGAN CHASE BANK, a New York
banking corporation, as agent (the "ADMINISTRATIVE AGENT") for the Lenders.
INTRODUCTORY STATEMENT
The Borrower, certain of the Lenders and the Administrative Agent
are parties to the 364-Day Competitive Advance and Revolving Credit Agreement,
dated as of March 4, 1997, as amended and restated through February 22, 2001
(the "EXISTING CREDIT AGREEMENT"), pursuant to which the Lenders established a
$750,000,000 committed revolving credit facility under which Revolving Credit
Loans (as defined below) may be made to the Borrower.
The Borrower has requested that the Termination Date (as defined
below) be extended to February 21, 2004 and has requested certain other
amendments to the Existing Credit Agreement.
The Borrower, the Lenders and the Administrative Agent desire to
amend and restate the Existing Credit Agreement pursuant to this Agreement and
to continue the Borrower's payment and performance obligations under the
Existing Credit Agreement, as amended hereby.
Accordingly, the parties hereto hereby agree as follows:
1. DEFINITIONS
For the purposes hereof unless the context otherwise requires, the
following terms shall have the meanings indicated, all accounting terms not
otherwise defined herein shall have the respective meanings accorded to them
under GAAP and all terms defined in the New York Uniform Commercial Code and not
otherwise defined herein shall have the respective meanings accorded to them
therein:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Loan bearing interest at a rate determined
by reference to the Alternate Base Rate in accordance with the provisions
of Article 2.
"AFFILIATE" shall mean any Person which, directly or indirectly, is
in control of, is controlled by, or is under common control with, the
Borrower. For purposes of this definition, a Person shall be deemed to be
"controlled by" another if such latter Person possesses, directly or
indirectly, power either to (i) vote 10% or more of the securities having
ordinary voting power for the election of directors of such controlled
Person or (ii) direct or cause the direction of the management and
policies of such controlled Person whether by contract or otherwise.
"ALTERNATE BASE RATE" shall mean for any day, a rate per annum
(rounded upwards to the nearest 1/16 of 1% if not already an integral
multiple of 1/16 of 1%) equal to the greater of (a) the Prime Rate in
effect for such day and (b) the Federal Funds Effective Rate in effect for
such day plus 1/2 of 1%. "PRIME RATE" shall mean the rate per annuM
publicly announced by the entity which is the Administrative Agent from
time to time as
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its prime rate in effect at its principal office in New York City. For
purposes of this Agreement, any change in the Alternate Base Rate due to a
change in the Prime Rate shall be effective on the date such change in the
Prime Rate is announced as effective. "FEDERAL FUNDS EFFECTIVE RATE" shall
mean, for any period, a fluctuating interest rate per annum equal for each
day during such period to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by
it. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate, for any reason,
including, without limitation, the inability or failure of the
Administrative Agent to obtain sufficient bids or publications in
accordance with the terms hereof, the Alternate Base Rate shall be
determined without regard to clause (b) until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Federal Funds
Effective Rate.
"APPLICABLE LAW" shall mean all provisions of statutes, rules,
regulations and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and
arbitrators in proceedings or actions in which the Person in question is a
party.
"ASSESSMENT RATE" shall mean, for any day, the net annual assessment
rate (rounded upwards, if necessary, to the next higher Basis Point) as
most recently reasonably estimated by the Administrative Agent for
determining the then current annual assessment payable by the entity which
is the Administrative Agent to the Federal Deposit Insurance Corporation
(or any successor) for insurance by such Corporation (or such successor)
of time deposits made in Dollars at such entity's domestic offices.
"ASSET SECURITIZATION SUBSIDIARY" shall mean (i) any Subsidiary
engaged solely in the business of effecting asset securitization
transactions permitted by this Agreement and activities incidental thereto
or (ii) any Subsidiary whose primary purpose is to hold title or ownership
interests in mortgages, relocation assets and related assets under
management.
"ASSIGNMENT AND ACCEPTANCE" shall mean an agreement in the form of
Exhibit C hereto, executed by the assignor, assignee and the other parties
as contemplated thereby.
"AVAILABLE FOREIGN CURRENCIES" shall mean the currencies set forth
on Schedule 1.1B, and any other available and freely-convertible
non-Dollar currency selected by the Borrower and approved (which approval
shall not be unreasonably withheld) in writing by the Administrative
Agent.
"AVIS" shall mean Avis Group Holdings, Inc., a Delaware corporation.
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"AVIS DEBT DOCUMENTS" shall mean the instruments and agreements
pursuant to which any indebtedness of ▇▇▇▇, ▇▇▇▇ Fleet or any of their
respective Subsidiaries has been issued, is outstanding or is permitted to
exist.
"AVIS FLEET" shall mean Avis Fleet Leasing and Management Corp., a
Texas corporation.
"AVIS FLEET TRANSACTION" shall mean the transaction pursuant to
which, after the consummation of the Avis Merger, the Borrower purchased
Avis Fleet from Avis.
"AVIS MERGER" shall mean the transaction pursuant to the Agreement
and Plan of Merger, dated as of November 11, 2000 (the "MERGER
AGREEMENT"), by and among Avis, Cendant Corporation, a Delaware
corporation ("CENDANT"), the Borrower (an indirect wholly-owned subsidiary
of Cendant) and Avis Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of the Borrower ("MERGER Sub") in which Merger Sub
merged with and into Avis and each outstanding share of class A common
stock, par value $.01 per share of Avis (the "COMMON STOCK"), other than
shares of Common Stock held by any subsidiary of Avis, held in Avis'
treasury, held by Cendant or any subsidiary of Cendant or held by
stockholders who perfect their appraisal rights under Delaware law, was
converted into the right to receive $33.00 in cash.
"AVIS SECURITIZATION ENTITY" means a Subsidiary of Avis or Avis
Fleet (or another Person in which ▇▇▇▇, ▇▇▇▇ Fleet or any of their
respective Subsidiaries makes an investment or to which ▇▇▇▇, ▇▇▇▇ Fleet
or any of their respective Subsidiaries transfers Permitted Vehicle
Collateral or an interest in Permitted Vehicle Collateral) which engages
in no activities other than in connection with the ownership, leasing,
operation and financing of Eligible Vehicles and other Permitted Vehicle
Collateral and which is designated by the board of directors of Avis or
Avis Fleet, as applicable, as an Avis Securitization Entity and as to
which:
(1) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which:
(a) is guaranteed by ▇▇▇▇, ▇▇▇▇ Fleet or any of their
respective Subsidiaries (excluding guarantees of obligations
(other than the principal of, and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings);
(b) is recourse to or obligates ▇▇▇▇, ▇▇▇▇ Fleet or any
of their respective Subsidiaries in any way other than
pursuant to Standard Securitization Undertakings; or
(c) subjects any property or asset of ▇▇▇▇, ▇▇▇▇ Fleet
or any of their respective Subsidiaries (other than an Avis
Securitization Entity), directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant
to Standard Securitization Undertakings;
4
(2) neither ▇▇▇▇, ▇▇▇▇ Fleet nor any of their respective
Subsidiaries has any material contract, agreement, arrangement or
understanding (except in connection with a Purchase Money Note or
Qualified Securitization Transaction) other than on terms no less
favorable to ▇▇▇▇, ▇▇▇▇ Fleet or such Subsidiary of Avis or Avis
Fleet than those that might be obtained at the time from Persons
that are not Affiliates of Avis or Avis Fleet, as applicable, other
than fees payable in the ordinary course of business in connection
with servicing Permitted Vehicle Collateral; and
(3) neither ▇▇▇▇, ▇▇▇▇ Fleet nor any of their respective
Subsidiaries has any obligation to maintain or preserve such
entity's financial condition or cause such entity to achieve certain
levels of operating results.
"AVIS SECURITIZATION INDEBTEDNESS" means (i) Indebtedness that
finances or refinances Eligible Vehicles (but only to the extent actually
used to finance or refinance Eligible Vehicles) and (ii) Indebtedness
secured by Permitted Vehicle Collateral.
"BASIS POINT" shall mean 1/100th of 1%.
"BOARD" shall mean the Board of Governors of the Federal Reserve
System.
"BORROWING" shall mean a group of Loans of a single Interest Rate
Type made by certain Lenders (or in the case of a Competitive Borrowing,
by the Lender or Lenders whose Competitive Bids have been accepted
pursuant to Section 2.4) on a single date and as to which a single
Interest Period is in effect.
"BUSINESS DAY" shall mean, with respect to any Loan, any day other
than a Saturday, Sunday or other day on which banks in the State of New
York are permitted or required by law to close; PROVIDED that when used in
connection with a LIBOR Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in deposits in Dollars or
the applicable Available Foreign Currency on the London Interbank Market
(or such other interbank eurocurrency market where the foreign currency
and exchange operations in respect of Dollars or the applicable Available
Foreign Currency, as the case may be, are then being conducted for
delivery on the first day of such Interest Period).
"CAPITAL LEASE" shall mean as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a capital
lease on the balance sheet of that Person.
"CASH EQUIVALENTS" shall mean (i) investments in commercial paper
maturing in not more than 270 days from the date of issuance which at the
time of acquisition is rated at least A-1 or the equivalent thereof by
S&P, or P-1 or the equivalent thereof by ▇▇▇▇▇'▇, (ii) investments in
direct obligations or obligations which are guaranteed or insured by the
United States or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof)
having a maturity of not more than three years from the date of
acquisition, (iii) investments in certificates of deposit maturing not
more than one year from the date of origin issued by a Lender or
5
a bank or trust company organized or licensed under the laws of the United
States or any state or territory thereof having capital, surplus and
undivided profits aggregating at least $500,000,000 and in each case A
rated or better by S&P or ▇▇▇▇▇'▇, (iv) money market mutual funds having
assets in excess of $2,000,000,000, (v) investments in asset-backed or
mortgage-backed securities, including investments in collateralized,
adjustable rate mortgage securities and those mortgage-backed securities
which are rated at least AA by S&P or Aa by ▇▇▇▇▇'▇ or are of comparable
quality at the time of investment, and (vi) banker's acceptances maturing
not more than one year from the date of origin issued by a bank or trust
company organized or licensed under the laws of the United States or any
state or territory thereof and having capital, surplus and undivided
profits aggregating at least $500,000,000, and rated A or better by S&P or
▇▇▇▇▇'▇.
"CHANGE IN CONTROL" shall mean (i) the acquisition by any Person or
group (within the meaning of the Securities Exchange Act of 1934, as
amended, and the rules of the Securities and Exchange Commission
thereunder as in effect on the Closing Date), directly or indirectly,
beneficially or of record, of ownership or control of in excess of 50% of
the voting common stock of Cendant Corporation on a fully diluted basis at
any time or (ii) if at any time, individuals who at the Closing Date
constituted the Board of Directors of Cendant Corporation (together with
any new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of Cendant Corporation, as the
case may be, was approved by a vote of the majority of the directors then
still in office who were either directors at the Closing Date or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors of Cendant
Corporation or (iii) Cendant Corporation shall cease to own, directly or
through wholly-owned Subsidiaries, all of the capital stock of the
Borrower, free and clear of any direct or indirect Liens.
"CLOSING DATE" shall mean the date on which the conditions precedent
to the effectiveness of this Agreement as set forth in Section 4.1 have
been satisfied or waived, which shall in no event be later than February
21, 2002.
"CODE" shall mean the Internal Revenue Code of 1986 and the rules
and regulations issued thereunder, as now and hereafter in effect, or any
successor provision thereto.
"COMMENCEMENT OF THE THIRD STAGE OF EMU" shall mean the date of
commencement of the third stage of EMU or the date on which circumstances
arise which (in the opinion of the Administrative Agent) have
substantially the same effect and result in substantially the same
consequences as commencement of the third stage of EMU as contemplated by
the Treaty on European Union.
"COMMITMENT" shall mean, with respect to each Lender, its Commitment
to make Loans to the Borrower hereunder, in an aggregate amount not to
exceed at any time the amount set forth opposite such Lender's name under
the heading "Commitment" on Schedule 1.1A.
"COMMITMENT PERIOD" shall mean the period from and including the
Closing Date to but not including the Termination Date or such earlier
date on which the Commitments shall have been terminated in accordance
with the terms hereof.
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"COMMITMENT UTILIZATION PERCENTAGE" shall mean on any day the
percentage equivalent of a fraction (a) the numerator of which is the sum
of the aggregate outstanding principal amount of Loans and the Dollar
Equivalent Amount of the aggregate outstanding principal amount of
Competitive Loans and (b) the denominator of which is the Total Commitment
(or, on any day after termination of the Commitments, the Total Commitment
in effect immediately preceding such termination).
"COMPETITIVE BID" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.4 in the form of Exhibit E-3.
"COMPETITIVE BID ACCEPT/REJECT LETTER" shall mean a notification
made by the Borrower pursuant to Section 2.4(d) in the form of Exhibit
E-4.
"COMPETITIVE BID RATE" shall mean, as to any Competitive Bid made by
a Lender pursuant to Section 2.4(b), (a) in the case of a LIBOR Loan, the
Margin and (b) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"COMPETITIVE BID REQUEST" shall mean a request made pursuant to
Section 2.4 in the form of Exhibit E-1.
"COMPETITIVE BORROWING" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or
Lenders whose Competitive Bids for such Borrowing have been accepted by
the Borrower under the bidding procedure described in Section 2.4.
"COMPETITIVE LOAN" shall mean a Loan from a Lender to the Borrower
pursuant to the bidding procedure described in Section 2.4. Each
Competitive Loan shall be a LIBOR Competitive Loan or a Fixed Rate Loan.
"COMPETITIVE NOTE" shall have the meaning assigned to such term in
Section 2.8.
"CONSOLIDATED ASSETS" shall mean, at any date of determination, the
total assets of the Borrower and its Consolidated Subsidiaries determined
in accordance with GAAP.
"CONSOLIDATED NET INCOME" shall mean, for any period for which such
amount is being determined, the net income (loss) of the Borrower and its
Consolidated Subsidiaries during such period determined on a consolidated
basis for such period taken as a single accounting period in accordance
with GAAP, PROVIDED that there shall be excluded (i) income (or loss) of
any Person (other than a Consolidated Subsidiary) in which the Borrower or
any of its Consolidated Subsidiaries has an equity investment or
comparable interest, except to the extent of the amount of dividends or
other distributions actually paid to the Borrower or its Consolidated
Subsidiaries by such Person during such period, (ii) the income (or loss)
of any Person accrued prior to the date it becomes a Consolidated
Subsidiary or is merged into or consolidated with the Borrower or any of
its Consolidated Subsidiaries or the Person's assets are acquired by the
Borrower or any of its Consolidated Subsidiaries, (iii) the income of any
Consolidated Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by that Consolidated Subsidiary of the
income is not at the time permitted by operation of the
7
terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that
Consolidated Subsidiary, (iv) any extraordinary after-tax gains and (v)
any extraordinary pretax losses but only to the extent attributable to a
write-down of financing costs relating to any existing and future
indebtedness.
"CONSOLIDATED NET WORTH" shall mean, at any date of determination,
all amounts which would be included on a balance sheet of the Borrower and
its Consolidated Subsidiaries under stockholders' equity as of such date
in accordance with GAAP.
"CONSOLIDATED SUBSIDIARIES" shall mean all Subsidiaries of the
Borrower that are required to be consolidated with the Borrower for
financial reporting purposes in accordance with GAAP.
"CONTRACTUAL OBLIGATION" shall mean, as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any of
its property is bound.
"CURRENCY" or "CURRENCIES" shall mean the collective reference to
Dollars and Available Foreign Currencies.
"DEFAULT" shall mean any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"DOLLAR EQUIVALENT AMOUNT" shall mean with respect to (i) any amount
of any Available Foreign Currency on any date, the equivalent amount in
Dollars of such amount of Available Foreign Currency, as determined by the
Administrative Agent using the applicable Exchange Rate and (ii) any
amount in Dollars, such amount.
"DOLLARS" and "$" and "US$" shall mean lawful currency of the United
States.
"ELIGIBLE LEASES" means open-end and closed-end automobile fleet
leases originated by or on behalf of ▇▇▇▇, ▇▇▇▇ Fleet or any of their
respective Subsidiaries which are of a type customarily eligible for
inclusion in a Qualified Securitization Transaction.
"ELIGIBLE VEHICLES" shall mean the motor vehicle inventory of ▇▇▇▇,
▇▇▇▇ Fleet or any of their respective Subsidiaries, in each case, whether
held for sale, lease or rental purposes which are of a type customarily
eligible for inclusion in a Qualified Securitization Transaction.
"EMU" shall mean economic and monetary union as contemplated in the
Treaty on European Union.
"EMU LEGISLATION" shall mean legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency (whether known as the euro or otherwise), being
in part the implementation of the third stage of EMU.
8
"ENUMERATED BUSINESS SEGMENTS" means the fleet, relocation or
mortgage business segments of the Borrower as described in its Annual
Report on Form 10-K, dated March 10, 2000.
"ENVIRONMENTAL LAWS" shall mean any and all federal, provincial,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees or requirements of any Governmental
Authority regulating, relating to or imposing liability or standards of
conduct concerning, any Hazardous Material or environmental protection
or health and safety, as now or at any time hereafter in effect,
including without limitation, the Clean Water Act also known as the
Federal Water Pollution Control Act, 33 ▇.▇.▇.▇▇.▇▇. 1251 ET SEQ., the
Clean Air Act, 42 ▇.▇.▇.▇▇.▇▇. 7401 ET SEQ., the Federal Insecticide,
Fungicide and Rodenticide Act, 7 ▇.▇.▇.▇▇.▇▇. 136 ET SEQ., the Surface
Mining Control and Reclamation Act, 30 ▇.▇.▇.▇▇.▇▇. 1201 ET SEQ., the
Comprehensive Environmental Response, Compensation and Liability Act,
42 ▇.▇.▇.▇▇.▇▇. 9601 ET SEQ., the Superfund Amendment and Reauthorization
Act of 1986, Public Law 99-499, 100 Stat. 1613, the Emergency Planning
and Community Right to Know Act, 42 ▇.▇.▇.▇▇.▇▇. 11001 ET SEQ., the
Resource Conservation and Recovery Act, 42 ▇.▇.▇.▇▇.▇▇. 6901 ET SEQ., the
Occupational Safety and Health Act as amended, 29 ▇.▇.▇.▇▇. 655 and
ss. 657, together, in each case, with any amendment thereto, and the
regulations adopted and publications promulgated thereunder and all
substitutions thereof.
"ENVIRONMENTAL LIABILITIES" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the release or threatened
release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as such Act may be amended, and the regulations promulgated
thereunder.
"EURO" shall mean the single currency of participating member states
of the European Union.
"EURO UNIT" shall mean the currency unit of the euro.
"EVENT OF DEFAULT" shall have the meaning given such term in Article
7.
"EXCESS UTILIZATION DAY" shall mean each day on which the Commitment
Utilization Percentage exceeds 25%.
"EXCHANGE RATE" shall mean (i) with respect to any Available Foreign
Currency other than Canadian Dollars on any date, the rate at which such
Available Foreign Currency may be exchanged into Dollars, as set forth on
such date on the relevant Reuters currency page at or about 11:00 A.M. New
York City time on such date and (ii) with respect to Canadian Dollars, the
spot rate at which Canadian Dollars may be
9
exchanged into U.S. Dollars, as quoted by The Bank of Canada at
approximately 12:00 noon, Toronto time, as set forth on the Reuters "BOFC"
page. In the event that such rate does not appear on any such Reuters
page, the "Exchange Rate" with respect to such Available Foreign Currency
shall be determined by reference to such other publicly available service
for displaying exchange rates as may be agreed upon by the Administrative
Agent and the Borrower or, in the absence of such agreement, such
"Exchange Rate" shall instead be the Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange
operations in respect of such Available Foreign Currency are then being
conducted, at or about 10:00 A.M., local time, at such date for the
purchase of Dollars with such Available Foreign Currency, for delivery two
Business Days later; PROVIDED that if at the time of any such
determination, no such spot rate can reasonably be quoted, the
Administrative Agent may use any reasonable method (including obtaining
quotes from three or more market makers for such Available Foreign
Currency) as it deems applicable to determine such rate, and such
determination shall be conclusive absent manifest error (without prejudice
to the determination of the reasonableness of such method).
"FACILITY FEE" shall have the meaning given such term in Section
2.7.
"FIVE YEAR CREDIT AGREEMENT" shall mean the Five Year Competitive
Advance and Revolving Credit Agreement, dated as of March 4, 1997, as
amended and restated through February 28, 2000, as further amended from
time to time, among the Borrower, the lenders referred to therein and
JPMorgan Chase Bank, as Administrative Agent.
"FIXED RATE BORROWING" shall mean a Borrowing comprised of Fixed
Rate Loans.
"FIXED RATE LOAN" shall mean any Competitive Loan bearing interest
at a fixed percentage rate per annum (expressed in the form of a decimal
to no more than four decimal places) specified by the Lender making such
Loan in its Competitive Bid.
"FLEET RECEIVABLES" means all receivables generated by ▇▇▇▇, ▇▇▇▇
Fleet or any of their respective Subsidiaries from obligors under fleet
maintenance contracts, fleet management contracts and fuel card contracts
and any other service contracts billed together with Eligible Leases,
which are of a type customarily eligible for inclusion in a Qualified
Securitization Transaction.
"FUNDAMENTAL DOCUMENTS" shall mean this Agreement, any Revolving
Credit Notes, any Competitive Notes, and any other ancillary documentation
which is required to be, or is otherwise, executed by the Borrower and
delivered to the Administrative Agent in connection with this Agreement.
"GAAP" shall mean generally accepted accounting principles
consistently applied (except for accounting changes in response to FASB
releases or other authoritative pronouncements) provided, however, that
all calculations made pursuant to Sections 6.7 and 6.8 and the related
definitions shall have been computed based on such generally accepted
accounting principles as are in effect on the date hereof.
10
"GOVERNMENTAL AUTHORITY" shall mean any federal, provincial, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, or any court, in each case, whether of the
United States or foreign.
"GUARANTY" shall mean, as to any Person, any direct or indirect
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, Capital Lease, dividend or other monetary obligation
("PRIMARY OBLIGATION") of any other Person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (a) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for the purchase or
payment of any such primary obligation or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net
worth or solvency of the primary obligor, (c) to purchase property,
securities or services, in each case, primarily for the purpose of
assuring the owner of any such primary obligation of the repayment of such
primary obligation or (d) as a general partner of a partnership or a joint
venturer of a joint venture in respect of indebtedness of such partnership
or such joint venture which is treated as a general partnership for
purposes of Applicable Law. The amount of any Guaranty shall be deemed to
be an amount equal to the stated or determinable amount (or portion
thereof) of the primary obligation in respect of which such Guaranty is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder); PROVIDED that the amount of any Guaranty shall be limited to
the extent necessary so that such amount does not exceed the value of the
assets of such Person (as reflected on a consolidated balance sheet of
such Person prepared in accordance with GAAP) to which any creditor or
beneficiary of such Guaranty would have recourse. Notwithstanding the
foregoing definition, the term "Guaranty" shall not include any direct or
indirect obligation of a Person as a general partner of a general
partnership or a joint venturer of a joint venture in respect of
Indebtedness of such general partnership or joint venture, to the extent
such Indebtedness is contractually non-recourse to the assets of such
Person as a general partner or joint venturer (other than assets
comprising the capital of such general partnership or joint venture).
"HAZARDOUS MATERIALS" shall mean any flammable materials,
explosives, radioactive materials, hazardous materials, hazardous wastes,
hazardous or toxic substances, or similar materials defined as such in any
Environmental Law.
"INDEBTEDNESS" shall mean (i) all indebtedness, obligations and
other liabilities of the Borrower and its Subsidiaries which are, at the
date as of which Indebtedness is to be determined, includable as
liabilities in a consolidated balance sheet of the Borrower and its
Subsidiaries, other than (x) accounts payable and accrued expenses, (y)
advances from clients obtained in the ordinary course of the relocation
management services business of the Borrower and its Subsidiaries and (z)
current and deferred income taxes and other similar liabilities, plus (ii)
without duplicating any items included in Indebtedness pursuant to the
foregoing clause (i), the maximum aggregate amount of all liabilities of
the Borrower or any of its Subsidiaries under any Guaranty, indemnity or
similar undertaking given or assumed of, or in respect of, the
indebtedness, obligations or other liabilities, assets, revenues, income
or dividends of any Person other than the Borrower or one of its
Subsidiaries and (iii) all other obligations or liabilities of the
Borrower or any
11
of its Subsidiaries in relation to the discharge of the obligations of any
Person other than the Borrower or one of it Subsidiaries.
"INTEREST PAYMENT DATE" shall mean, with respect to any Borrowing,
the last day of the Interest Period applicable thereto and, in the case of
a LIBOR Borrowing with an Interest Period of more than three months'
duration or a Fixed Rate Borrowing with an Interest Period of more than 90
days' duration, each day that would have been an Interest Payment Date had
successive Interest Periods of three months' duration or 90 days'
duration, as the case may be, been applicable to such Borrowing, and, in
addition, the date of any refinancing or conversion of a Borrowing with,
or to, a Borrowing of a different Interest Rate Type.
"INTEREST PERIOD" shall mean (a) as to any LIBOR Borrowing, the
period commencing on the date of such Borrowing, and ending on the
numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3,
6 or, subject to each Lender's approval, 12 months thereafter, as the
Borrower may elect, (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, (ii) the
Termination Date and (iii) the date such Borrowing is refinanced with a
Borrowing of a different Interest Rate Type in accordance with Section 2.6
or is prepaid in accordance with Section 2.13, and (c) as to any Fixed
Rate Borrowing, the period commencing on the date of such Borrowing and
ending on the date specified in the Competitive Bids in which the offer to
make the Fixed Rate Loans comprising such Borrowing were extended, which
shall not be earlier than seven days after the date of such Borrowing or
later than 360 days after the date of such Borrowing; PROVIDED that (i) if
any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
unless, in the case of LIBOR Loans only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) no Interest Period
with respect to any LIBOR Borrowing or Fixed Rate Borrowing may be
selected which would result in the aggregate amount of LIBOR Loans and
Fixed Rate Loans having Interest Periods ending after any day on which a
Commitment reduction is scheduled to occur being in excess of the Total
Commitment scheduled to be in effect after such date. Interest shall
accrue from, and including, the first day of an Interest Period to, but
excluding, the last day of such Interest Period.
"INTEREST RATE PROTECTION AGREEMENT" shall mean any interest rate
swap agreement, interest rate cap agreement or other similar financial
agreement or arrangement.
"INTEREST RATE TYPE" when used in respect of any Loan or Borrowing,
shall refer to the Rate by reference to which interest on such Loan or on
the Loans comprising such Borrowing is determined.
"JPMORGAN CHASE BANK" shall mean JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank), a New York banking corporation.
12
"LEAF TRUST TRANSACTION" means the financing of motor vehicles and
other equipment or personal property pursuant to that certain Amended and
Restated Purchase Agreement, dated as of March 1, 2001, among LEAF Trust,
a trust established under the laws of the Province of Ontario, the
Canadian Imperial Bank of Commerce, as Administrative Agent and PHH
Vehicle Management Services, Inc., a corporation amalgamated under the
laws of Canada (the "PURCHASE AGREEMENT"), including any amendments,
supplements, modifications, extensions, renewals, restatements or
refundings thereof and any facilities or agreements that replace, refund
or refinance, in whole or in part, the Purchase Agreement.
"LENDER and "LENDERS" shall mean the financial institutions whose
names appear on the signature pages hereof and any assignee of a Lender
pursuant to Section 9.3(b).
"LENDING OFFICE" shall mean, with respect to any of the Lenders, the
branch or branches (or affiliate or affiliates) from which any such
Lender's LIBOR Loans, Fixed Rate Loans or ABR Loans, as the case may be,
are made or maintained and for the account of which all payments of
principal of, and interest on, such Lender's LIBOR Loans, Fixed Rate Loans
or ABR Loans are made, as notified to the Administrative Agent from time
to time.
"LIBOR" shall mean, with respect to each day during each Interest
Period pertaining to a LIBOR Borrowing, the rate per annum determined on
the basis of the rate for deposits in Dollars or the applicable Available
Foreign Currency, as the case may be, for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen (or any successor page thereto) as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750
of the Telerate screen (or otherwise on such screen), the "LIBOR" shall be
determined by reference to such other comparable publicly available
service for displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such availability, by reference
to the rate at which the Administrative Agent is offered Dollar deposits
or deposits in the applicable Available Foreign Currency, as the case may
be, at or about 11:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market
where its eurodollar and foreign currency and exchange operations are then
being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
"LIBOR BORROWING" shall mean a Borrowing comprised of LIBOR Loans.
"LIBOR COMPETITIVE LOAN" shall mean any Competitive Loan bearing
interest at a rate determined by reference to LIBOR in accordance with the
provisions of Article 2.
"LIBOR LOAN" shall mean any LIBOR Competitive Loan or LIBOR
Revolving Credit Loan.
"LIBOR REVOLVING CREDIT LOAN" shall mean any Revolving Credit Loan
bearing interest at a rate determined by reference to LIBOR in accordance
with the provisions of Article 2.
13
"LIBOR SPREAD" shall mean, at any date or any period of
determination, the LIBOR Spread that would be in effect on such date or
during such period pursuant to the chart set forth in Section 2.22 based
on the rating of the Borrower's senior unsecured long-term debt.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind whatsoever (including any
conditional sale or other title retention agreement, any lease in the
nature thereof or agreement to give any financing statement under the
Uniform Commercial Code of any jurisdiction).
"LOAN" shall mean a Competitive Loan or a Revolving Credit Loan,
whether made as a LIBOR Loan, an ABR Loan or a Fixed Rate Loan, as
permitted hereby.
"MARGIN" shall mean, as to any LIBOR Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to four
decimal places) to be added to, or subtracted from, LIBOR in order to
determine the interest rate applicable to such Loan, as specified in the
Competitive Bid relating to such Loan.
"MARGIN STOCK" shall be as defined in Regulation U of the Board.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
the business, assets, operations or condition, financial or otherwise, of
the Borrower and its Subsidiaries taken as a whole.
"MATERIAL SUBSIDIARY" shall mean any Subsidiary of the Borrower
which together with its Subsidiaries at the time of determination had
assets constituting 10% or more of Consolidated Assets, accounts for 10%
or more of Consolidated Net Worth, or accounts for 10% or more of the
revenues of the Borrower and its Consolidated Subsidiaries for the Rolling
Period immediately preceding the date of determination.
"MEDIUM TERM NOTES" means the Notes issued by the Borrower pursuant
to the Indenture entered into by the Borrower dated as of November 6,
2000, as supplemented.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service Inc.
"MULTIEMPLOYER PLAN" shall mean a plan described in Section 3(37) of
ERISA.
"NATIONAL CURRENCY UNIT " shall mean the unit of currency (other
than a euro unit) of a participating member state.
"NOTES" shall mean the Competitive Notes and the Revolving Credit
Notes.
"OBLIGATIONS" shall mean the obligation of the Borrower to make due
and punctual payment of principal of, and interest on (including
post-petition interest, whether or not allowed), the Loans, the Facility
Fee, the Utilization Fee and all other monetary obligations of the
Borrower to the Administrative Agent or any Lender under this Agreement,
the Notes or the Fundamental Documents or with respect to any Interest
Rate Protection Agreements entered into between the Borrower or any of its
Subsidiaries and any Lender.
14
"ORIGINAL CLOSING DATE" shall mean March 4, 1997.
"PARTICIPANT" shall have the meaning assigned to such term in
Section 9.3(g).
"PARTICIPATING MEMBER STATE" shall mean each state so described in
any EMU legislation.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
"PERMITTED ENCUMBRANCES" shall mean Liens permitted under Section
6.5.
"PERMITTED VEHICLE COLLATERAL" means, as of any date of
determination:
(1) the collateral securing Avis Securitization Indebtedness
and consisting of Eligible Vehicles and receivables, or a beneficial
interest therein, arising from the disposition of Eligible Vehicles
and the proceeds thereof;
(2) Eligible Leases and Fleet Receivables, or a beneficial
interest therein, transferred to an Avis Securitization Entity in
connection with a Qualified Securitization Transaction and the
proceeds thereof;
(3) any related assets which are customarily transferred, or
in respect of which security interests are customarily granted, in
connection with asset securitizations involving Eligible Vehicles or
Eligible Leases; and
(4) any proceeds of any of the foregoing.
"PERSON" shall mean any natural person, corporation, division of a
corporation, partnership, limited liability company, trust, joint venture,
association, company, estate, unincorporated organization or government or
any agency or political subdivision thereof.
"PLAN" shall mean an employee pension benefit plan described in
Section 3(2) of ERISA, other than a Multiemployer Plan.
"PRO FORMA BASIS" shall mean, in connection with any transaction for
which a determination on a Pro Forma Basis is required to be made
hereunder, that such determination shall be made (i) after giving effect
to any issuance of Indebtedness, any acquisition, any disposition or any
other transaction (as applicable) and (ii) assuming that the issuance of
Indebtedness, acquisition, disposition or other transaction and, if
applicable, the application of any proceeds therefrom, occurred at the
beginning of the most recent Rolling Period ending at least thirty (30)
days prior to the date on which such issuance of Indebtedness,
acquisition, disposition or other transaction occurred.
"PURCHASE MONEY NOTE" means a promissory note of an Avis
Securitization Entity evidencing a line of credit, which may be
irrevocable, from ▇▇▇▇, ▇▇▇▇ Fleet or any of their respective Subsidiaries
to an Avis Securitization Entity or representing the deferred purchase
price for the purchase of assets by such Avis Securitization Entity from
Avis,
15
Avis Fleet or any of their respective Subsidiaries, in each case in
connection with a Qualified Securitization Transaction, which note is
repayable from cash available to the Avis Securitization Entity, other
than amounts required to be established as reserves pursuant to
agreements, amounts paid to investors in respect of interest, principal
and other amounts owing to such investors and amounts paid in connection
with the purchase of Eligible Vehicles, Eligible Leases, Fleet Receivables
or a beneficial interest therein.
"QUALIFIED SECURITIZATION TRANSACTION" means any transaction or
series of transactions that may be entered into by ▇▇▇▇, ▇▇▇▇ Fleet or any
of their respective Subsidiaries pursuant to which ▇▇▇▇, ▇▇▇▇ Fleet or any
of their respective Subsidiaries may sell, convey or otherwise transfer to
(1) an Avis Securitization Entity (in the case of a transfer by ▇▇▇▇, ▇▇▇▇
Fleet or any of their respective Subsidiaries) or (2) any other Person (in
the case of a transfer by an Avis Securitization Entity), or may grant a
security interest in, any Permitted Vehicle Collateral (whether now
existing or arising in the future) of ▇▇▇▇, ▇▇▇▇ Fleet or any of their
respective Subsidiaries, and any assets related thereto including, without
limitation, the proceeds of such Permitted Vehicle Collateral.
"RATING AGENCIES" means S&P and Moody's, or, if either S&P or
▇▇▇▇▇'▇ is not publicly rating the Medium-Term Notes, then another
nationally recognized securities rating agency selected by the Borrower
and substituted for whichever agency is not publicly rating the
Medium-Term Notes.
"RATING DECLINE" means a decrease in the rating of the Medium-Term
Notes by either of the Rating Agencies by one or more gradations
(including gradations within rating categories as well as between rating
categories); PROVIDED that such reduction or decrease must occur upon or
within 30 days after the occurrence of a Significant Asset Sale, PROVIDED
HOWEVER, that such 30-day period shall be extended as long as the rating
of the Medium-Term Notes is under publicly announced consideration by
either of the Rating Agencies (i) where the rating of the Medium-Term
Notes is under publicly announced consideration for possible downgrading,
or (ii) where the rating of the Medium-Term Notes is under publicly
announced consideration, but where no direction of grading is initially
indicated by the Rating Agency, including classifications such as "Credit
Watch Developing" or such other similar classification used by the Rating
Agencies, PROVIDED FURTHER, that a Rating Decline shall not have occurred
if, after a decrease in rating, the Medium-Term Notes are rated at least
Baa1 by Moody's AND A- by S&P.
"REPORTABLE EVENT" shall mean any reportable event as defined in
Section 4043(c) of ERISA, other than a reportable event as to which
provision for 30-day notice to the PBGC would be waived under applicable
regulations had the regulations in effect on the Closing Date been in
effect on the date of occurrence of such reportable event.
"REQUIRED LENDERS" shall mean Lenders holding Commitments
representing (in Dollar amounts) 51% or more of the Total Commitment,
except that for purposes of determining the Lenders entitled to declare
the principal of and the interest on the Loans and the Notes and all other
amounts payable hereunder or thereunder to be forthwith due and payable
pursuant to Article 7, "Required Lenders" shall mean Lenders holding 51%
of the aggregate principal amount of the Loans at the time.
16
"REVOLVING CREDIT BORROWING" shall mean a Borrowing consisting of
simultaneous Revolving Credit Loans from each of the Lenders.
"REVOLVING CREDIT BORROWING REQUEST" shall mean a request made
pursuant to Section 2.5 in the form of Exhibit F.
"REVOLVING CREDIT LOANS" shall mean the Loans made by the Lenders to
the Borrower pursuant to a notice given by the Borrower under Section
2.5(a). Each Revolving Credit Loan shall be a LIBOR Revolving Credit Loan
or an ABR Loan.
"REVOLVING CREDIT NOTE" shall have the meaning assigned to such term
in Section 2.8.
"ROLLING PERIOD" shall mean with respect to any fiscal quarter, such
fiscal quarter and the three immediately preceding fiscal quarters
considered as a single accounting period.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies.
"SIGNIFICANT ASSET SALE" means (i) any sale by the Borrower or its
Subsidiaries of assets with a fair market value greater than $500,000,000,
or (ii) the sale of 33-1/3% or more of the assets or capital stock, as the
case may be, of any one of the Enumerated Business Segments, PROVIDED
HOWEVER, that a Significant Asset Sale shall not include transactions in
the ordinary course of business of the Borrower or its Subsidiaries,
including, but not limited to, asset securitization and similar
transactions or the Avis-Rent-A-Car transaction described in the
Borrower's Report on Form 8-K, dated November 20, 2000.
"SIGNIFICANT ASSET SALE TRIGGERING EVENT" means the occurrence of
both a Significant Asset Sale and a Rating Decline.
"SPECIAL PURPOSE VEHICLE SUBSIDIARY" shall mean PHH Caribbean
Leasing, Inc. and any Subsidiary engaged in the fleet-leasing management
business that (i) is, at any time, a party to one or more lease agreements
with only one lessee, and (ii) finances, at any one time, its investments
in lease agreements or vehicles with only one lender (which lender may be
the Borrower if and to the extent that such loans and/or advances by the
Borrower are not prohibited hereby).
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, covenants and indemnities entered into by ▇▇▇▇, ▇▇▇▇ Fleet or
any of their respective Subsidiaries which are reasonably customary in
securitizations of vehicles and vehicle leases.
"STATUTORY RESERVES" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is
the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board and any other banking
authority to which the Administrative Agent or any Lender
17
is subject, for Eurocurrency Liabilities (as defined in Regulation D of
the Board) (or, at any time when such Lender may be required by the Board
or by any other Governmental Authority, whether within the United States
or in another relevant jurisdiction, to maintain reserves against any
other category of liabilities which includes deposits by reference to
which LIBOR is determined as provided in this Agreement or against any
category of extensions of credit or other assets of such Lender which
includes any such LIBOR Loans). Such reserve percentages shall include
those imposed under Regulation D of the Board. LIBOR Loans shall be deemed
to constitute Eurocurrency Liabilities and as such shall be deemed to be
subject to such reserve requirements without benefit of or credit for
proration, exceptions or offsets which may be available from time to time
to any Lender under Regulation D of the Board. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"SUBSIDIARY" shall mean with respect to any Person, any corporation,
association, joint venture, partnership or other business entity (whether
now existing or hereafter organized) of which at least a majority of the
voting stock or other ownership interests having ordinary voting power for
the election of directors (or the equivalent) is, at the time as of which
any determination is being made, owned or controlled by such Person or one
or more subsidiaries of such Person or by such Person and one or more
subsidiaries of such Person. Unless otherwise qualified, all references to
a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"SUPERMAJORITY LENDERS" shall mean Lenders which have Commitments
representing at least 75% of the aggregate Dollar amount of the
Commitments.
"TARGET OPERATING DAY" shall mean any day that is not (a) a Saturday
or Sunday, (b) Christmas Day or New Year's Day or (c) any other day on
which the Trans-European Real-time Gross Settlement Operating System (or
any successor settlement system) is not operating (as determined by the
Administrative Agent).
"TERMINATION DATE" means February 21, 2004.
"TOTAL COMMITMENT" shall mean, at any time, the aggregate amount of
the Lenders' Commitments as in effect at such time.
"TREATY ON EUROPEAN UNION" shall mean the Treaty of Rome of March
25, 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht
Treaty (which was signed at Maastricht on February 7, 1992, and came into
force on November 1, 1993), as amended from time to time.
"UNITED STATES" shall mean the United States of America.
"UTILIZATION FEE" shall have the meaning given such term in Section
2.7.
"WORKING DAY" shall mean any Business Day on which dealings in
foreign currencies and exchange between banks may be carried on in London,
England and in New York, New York.
18
2. THE LOANS
SECTION 2.1. COMMITMENTS.
(a) Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Lender agrees, severally
and not jointly, to make Revolving Credit Loans to the Borrower in Dollars, at
any time and from time to time on and after the Original Closing Date and until
the earlier of the Termination Date and the termination of the Commitment of
such Lender, in an aggregate principal amount at any time outstanding not to
exceed such Lender's Commitment plus the outstanding Dollar Equivalent Amount by
which the Competitive Loans outstanding at such time shall be deemed to have
used such Lender's Commitment pursuant to Section 2.18, subject, however, to the
condition that at no time shall (i) the sum of (A) the outstanding aggregate
principal amount of all Revolving Credit Loans made by all Lenders plus (B) the
outstanding aggregate principal Dollar Equivalent Amount of all Competitive
Loans made by the Lenders exceed (ii) the Total Commitment. During the
Commitment Period, the Borrower may use the Commitments of the Lenders by
borrowing, prepaying the Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof.
(b) [INTENTIONALLY DELETED].
(c) [INTENTIONALLY DELETED].
(d) The Commitments of the Lenders may be terminated or reduced from
time to time pursuant to Section 2.12 or Article 7.
SECTION 2.2. LOANS.
(a) Each Revolving Credit Loan shall be made as part of a Borrowing
consisting of Revolving Credit Loans made by the Lenders ratably in accordance
with their respective applicable Commitments. Each Competitive Loan shall be
made in accordance with the procedures set forth in Section 2.4. The failure of
any Lender to make any Loan required to be made by it shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). The
Loans comprising any Borrowing shall be (i) in the case of Competitive Loans and
LIBOR Loans, in an aggregate principal Dollar Equivalent Amount that is an
integral multiple of $5,000,000 and not less than $10,000,000 and (ii) in the
case of ABR Loans, in an aggregate principal amount that is an integral multiple
of $500,000 and not less than $5,000,000 (or if less, an aggregate principal
amount equal to the remaining balance of the available Total Commitment).
(b) Each Competitive Borrowing shall be comprised entirely of LIBOR
Competitive Loans or Fixed Rate Loans. Each Borrowing shall be comprised
entirely of LIBOR Loans or ABR Loans, as the Borrower may request pursuant to
Section 2.4 or 2.5, as applicable. Each Lender may at its option make any LIBOR
Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan, PROVIDED that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement and the applicable Note. Borrowings of more than one Interest
Rate Type may be outstanding at the same time; PROVIDED that the Borrower shall
not be entitled to request any
19
Borrowing that, if made, would result in an aggregate of more than twenty (20)
separate Loans (other than Competitive Loans) of any Lender being outstanding
hereunder at any one time. For purposes of the calculation required by the
immediately preceding sentence, LIBOR Revolving Credit Loans having different
Interest Periods or having been made in different Currencies, regardless of
whether they commence on the same date, shall be considered separate Loans and
all Loans of a single Interest Rate Type made on a single date shall be
considered a single Loan if such Loans have a common Interest Period.
(c) (i) Subject to Section 2.6, each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by making funds available
at the office of the Administrative Agent specified in Section 9.1 for credit to
PHH Corporation Clearing Account, Account No. ▇▇▇-▇-▇▇▇▇▇ (Reference: PHH
Corporation Credit Agreement dated as of March 4, 1997) or as otherwise directed
by the Administrative Agent no later than 1:00 P.M. New York City time in the
case of Loans other than ABR Loans, and 4:00 P.M. New York City time in the case
of ABR Loans, in each case, in immediately available funds. Upon receipt of the
funds to be made available by the Lenders to fund any Borrowing hereunder, the
Administrative Agent shall disburse such funds by depositing them into an
account of the Borrower maintained with the Administrative Agent. Competitive
Loans shall be made by the Lender or Lenders whose Competitive Bids therefor are
accepted pursuant to Section 2.4 in the amounts so accepted and Loans shall be
made by all the Lenders pro rata in accordance with Section 2.1 and this Section
2.2.
(ii) [INTENTIONALLY DELETED].
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Termination Date.
SECTION 2.3. USE OF PROCEEDS.
The proceeds of the Loans shall be used for working capital and
general corporate purposes.
SECTION 2.4. COMPETITIVE BID PROCEDURE.
(a) In order to request Competitive Bids, the Borrower shall hand
deliver or telecopy to the Administrative Agent a duly completed Competitive Bid
Request in the form of Exhibit E-1, to be received by the Administrative Agent
(i) in the case of a LIBOR Competitive Borrowing, not later than 2:00 p.m., New
York City time, four Working Days before a proposed Competitive Borrowing and
(ii) in the case of a Fixed Rate Borrowing, not later than 2:00 p.m., New York
City time, one Business Day before a proposed Competitive Borrowing. Each
Competitive Bid Request shall specify the requested Currency. No ABR Loan shall
be requested in, or made pursuant to, a Competitive Bid Request. A Competitive
Bid Request that does not conform substantially to the format of Exhibit E-1 may
be rejected in the Administrative Agent's sole discretion, and the
Administrative Agent shall promptly notify the Borrower of such rejection by
telecopier. Such request for Competitive Bids shall in each case refer to this
Agreement and specify (i) whether the Borrowing then being requested is to be a
LIBOR Borrowing or a Fixed Rate Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day in the case of a Fixed Rate Borrowing and a
Working Day in the case of a LIBOR
20
Competitive Borrowing) and the aggregate principal Dollar Equivalent Amount
thereof, which shall be in a minimum principal Dollar Equivalent Amount of
$10,000,000 and in an integral multiple of $5,000,000, and (iii) the Interest
Period with respect thereto (which may not end after the Termination Date).
Promptly after its receipt of a Competitive Bid Request that is not rejected as
aforesaid, the Administrative Agent shall invite by telecopier (in the form set
forth in Exhibit E-2) the Lenders to bid, on the terms and subject to the
conditions of this Agreement, to make Competitive Loans pursuant to such
Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Lender must be received by the Administrative Agent via
telecopier, in the form of Exhibit E-3, (i) in the case of a LIBOR Competitive
Borrowing, not later than 9:30 a.m., New York City time, three Working Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. Multiple Competitive Bids will be accepted by
the Administrative Agent. Competitive Bids that do not conform substantially to
the format of Exhibit E-3 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower, and the
Administrative Agent shall notify the Lender making such nonconforming
Competitive Bid of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and specify (i) the principal Dollar Equivalent
Amount (which shall be in a minimum principal Dollar Equivalent Amount of
$10,000,000 and in an integral multiple of $5,000,000 and which may equal the
entire principal amount of the Competitive Borrowing requested by the Borrower)
of the Competitive Loan or Loans that the applicable Lender is willing to make
to the Borrower, (ii) the Competitive Bid Rate or Rates at which such Lender is
prepared to make such Competitive Loan or Loans and (iii) the Interest Period or
Interest Periods with respect thereto. If any Lender shall elect not to make a
Competitive Bid, such Lender shall so notify the Administrative Agent via
telecopier (i) in the case of LIBOR Competitive Loans, not later than 9:30 a.m.,
New York City time, three Working Days before a proposed Competitive Borrowing
and (ii) in the case of Fixed Rate Loans, not later than 9:30 a.m., New York
City time, on the day of a proposed Competitive Borrowing; PROVIDED that failure
by any Lender to give such notice shall not cause such Lender to be obligated to
make any Competitive Loan as part of such proposed Competitive Borrowing. A
Competitive Bid submitted by a Lender pursuant to this paragraph (b) shall be
irrevocable.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopier of all the Competitive Bids made, the Competitive Bid Rate or Rates
and the principal amount of each Competitive Loan in respect of which a
Competitive Bid was made and the identity of the Lender that made each
Competitive Bid. The Administrative Agent shall send a copy of all Competitive
Bids to the Borrower for its records as soon as practicable after completion of
the bidding process set forth in this Section 2.4.
(d) The Borrower may in its sole and absolute discretion, subject
only to the provisions of this paragraph (d), accept or reject any Competitive
Bid referred to in paragraph (c) above. The Borrower shall notify the
Administrative Agent by telephone, promptly confirmed by telecopier in the form
of a Competitive Bid Accept/Reject Letter whether and to what extent it has
decided to accept or reject any or all of the Competitive Bids referred to in
paragraph (c) above, (i) in the case of a LIBOR Competitive Borrowing, not later
than 10:30 a.m., New York City time, three Working Days before a proposed
Competitive Borrowing and (ii) in the case of a
21
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the day
of a proposed Competitive Borrowing; PROVIDED that (A) the failure by the
Borrower to give such notice shall be deemed to be a rejection of all the
Competitive Bids referred to in paragraph (c) above, (B) the Borrower shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if the
Borrower has decided to reject a Competitive Bid made at a lower Competitive Bid
Rate, (C) the aggregate amount of the Competitive Bids accepted by the Borrower
shall not exceed the principal amount specified in the Competitive Bid Request,
(D) if the Borrower shall accept a Competitive Bid or Competitive Bids made at a
particular Competitive Bid Rate but the amount of such Competitive Bid or
Competitive Bids shall cause the total amount of Competitive Bids to be accepted
by the Borrower to exceed the amount specified in the Competitive Bid Request,
then the Borrower shall accept a portion of such Competitive Bid or Competitive
Bids in an amount equal to the amount specified in the Competitive Bid Request
less the amount of all other Competitive Bids accepted at lower Competitive Bid
Rates with respect to such Competitive Bid Request (it being understood that
acceptance in the case of multiple Competitive Bids at such Competitive Bid
Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid at such Competitive Bid Rate), (E) except pursuant to clause (D)
above, no Competitive Bid shall be accepted for a Competitive Loan unless such
Competitive Loan is in a minimum principal Dollar Equivalent Amount of
$10,000,000 and an integral multiple of $5,000,000 and (F) the Borrower may not
accept Competitive Bids for Competitive Loans in any Currency other than the
Currency specified in the related Competitive Bid Request; and PROVIDED,
FURTHER, that if a Competitive Loan must be in an amount less than the Dollar
Equivalent Amount of $10,000,000 because of the provisions of clause (D) above,
such Competitive Loan shall be in a minimum principal Dollar Equivalent Amount
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (D), the amounts shall be
rounded to the Dollar Equivalent Amount of integral multiples of $1,000,000 in a
manner that shall be in the discretion of the Borrower. A notice given by the
Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender whether its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopy sent by the Administrative Agent,
and each successful bidder will thereupon become bound, subject to the other
applicable conditions hereof, to make the Competitive Loan in respect of which
its Competitive Bid has been accepted in the applicable Currency.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Borrower one quarter of an hour earlier than the latest time at which the
other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) above.
(g) All notices required by this Section 2.4 shall be given in
accordance with Section 9.1.
SECTION 2.5. REVOLVING CREDIT BORROWING PROCEDURE.
(a) In order to effect a Revolving Credit Borrowing, the Borrower
shall hand deliver or telecopy to the Administrative Agent a Borrowing notice in
the form of Exhibit F (a) in the case of a Borrowing of a LIBOR Revolving Credit
Loan, not later than 2:00 p.m., New
22
York City time, three Working Days before a proposed Borrowing, and (b) in the
case of an ABR Borrowing, not later than 2:00 p.m., New York City time, on the
day of a proposed Borrowing. No Fixed Rate Loan or LIBOR Competitive Loan shall
be requested or made pursuant to a Revolving Credit Borrowing Request. Such
notice shall be irrevocable and shall in each case specify (a) whether the
Borrowing then being requested is to be a Borrowing of a LIBOR Revolving Credit
Loan or an ABR Borrowing, (b) the date of such Revolving Credit Borrowing (which
shall be a Working Day) and the amount thereof and (c) if such Borrowing is to
be a Borrowing of LIBOR Revolving Credit Loans, the Interest Period with respect
thereto. If no election as to the Interest Rate Type of a Revolving Credit
Borrowing is specified in any such notice, then the requested Revolving Credit
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Borrowing of LIBOR Revolving Credit Loans is specified in any such notice, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. If the Borrower shall not have given notice in accordance with this
Section 2.5 of its election to refinance a Revolving Credit Borrowing prior to
the end of the Interest Period in effect for such Borrowing, then the Borrower
shall (unless such Borrowing is repaid at the end of such Interest Period) be
deemed to have given notice of an election to refinance such Borrowing with an
ABR Borrowing. The Administrative Agent shall promptly advise the Lenders, of
any notice given pursuant to this Section 2.5 and of each such Lender's portion
of the requested Revolving Credit Borrowing.
(b) [INTENTIONALLY DELETED].
SECTION 2.6. REFINANCINGS.
The Borrower may refinance all or any part of any Borrowing made by
it with a Borrowing of the same or a different Interest Rate Type made pursuant
to Section 2.4 or pursuant to a notice under Section 2.5, subject to the
conditions and limitations set forth herein and elsewhere in this Agreement,
including refinancings of Competitive Borrowings with Revolving Credit
Borrowings in Dollars and Revolving Credit Borrowings in Dollars with
Competitive Borrowings; PROVIDED that at any time after the occurrence, and
during the continuation, of a Default or an Event of Default, a Revolving Credit
Borrowing of Dollars or portion thereof may only be refinanced with an ABR
Borrowing. Any Borrowing or part thereof so refinanced shall be deemed to be
repaid in accordance with Section 2.8 with the proceeds of a new Borrowing
hereunder and the proceeds of the new Borrowing, to the extent they do not
exceed the principal amount of the Borrowing being refinanced, shall not be paid
by the applicable Lenders to the Administrative Agent or by the Administrative
Agent to the Borrower pursuant to Section 2.2(c); PROVIDED that (a) if the
principal amount extended by a Lender in a refinancing is greater than the
principal amount extended by such Lender in the Borrowing being refinanced, then
such Lender shall pay such difference to the Administrative Agent for
distribution to the Lenders described in clause (b) below, (b) if the principal
amount extended by a Lender in the Borrowing being refinanced is greater than
the principal amount being extended by such Lender in the refinancing, the
Administrative Agent shall return the difference to such Lender out of amounts
received pursuant to clause (a) above, and (c) to the extent any Lender fails to
pay the Administrative Agent amounts due from it pursuant to clause (a) above,
any Loan or portion thereof being refinanced with such amounts shall not be
deemed repaid in accordance with Section 2.8 and, to the extent of such failure,
the Borrower shall pay such amount to the Administrative Agent as required by
Section 2.10; and (d) to the extent the Borrower fails to pay to the
Administrative Agent any amounts due in accordance with Section 2.8 as a result
of the failure of a Lender to
23
pay the Administrative Agent any amounts due as described in clause (c) above,
the portion of any refinanced Loan deemed not repaid shall be deemed to be
outstanding solely to the Lender which has failed to pay the Administrative
Agent amounts due from it pursuant to clause (a) above to the full extent of
such Lender's portion of such Loan.
SECTION 2.7. FEES.
(a) The Borrower agrees to pay to each Lender, through the
Administrative Agent, on each March 31, June 30, September 30 and December 31,
and on the date on which the Commitment of such Lender shall be terminated as
provided herein, a facility fee (a "FACILITY FEE") at the rate per annum from
time to time in effect in accordance with Section 2.22, on the amount of the
Commitment of such Lender, whether used or unused, during the preceding quarter
(or shorter period commencing with the Closing Date, or ending with the
Termination Date or any date on which the Commitment of such Lender shall be
terminated). All Facility Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Facility Fee due to each
Lender shall commence to accrue on the Closing Date, shall be payable in arrears
and shall cease to accrue on the earlier of the Termination Date and the
termination of the Commitment of such Lender as provided herein; provided, that
if any Lender continues to have any outstanding Loans after its Commitment
terminates, then such Facility Fee shall continue to accrue on the daily
aggregate principal amount of such Lender's Loans for each day from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any outstanding Loans.
(b) The Borrower agrees to pay to each Lender, through the
Administrative Agent, on each March 31, June 30, September 30 and December 31,
and on the date on which the Commitment of such Lender shall be terminated as
provided herein, a utilization fee (a "UTILIZATION FEE") at a rate per annum
equal to .25% for each day on which the Commitment Utilization Percentage
exceeds 25%, which fee shall accrue on the daily amount of the Commitment of
such Lender (whether used or unused) for each Excess Utilization Day during the
period from and including the Closing Date to but excluding the date on which
such Commitment terminates; PROVIDED that, if such Lender continues to have any
outstanding Loans after its Commitment terminates, then such Utilization Fee
shall continue to accrue on the daily aggregate principal amount of such
Lender's Loans for each Excess Utilization Day from and including the date on
which its Commitment terminates to but excluding the date on which such Lender
ceases to have any outstanding Loans. All Utilization Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days and shall
be payable in arrears.
(c) The Borrower agrees to pay the Administrative Agent, for its own
account, the fees at the times and in the amounts provided for in the letter
agreement dated February 21, 2002 among the Borrower, JPMorgan Chase Bank and
▇.▇. ▇▇▇▇▇▇ Securities Inc.
(d) All fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders. Once paid, none of the fees shall be refundable
under any circumstances.
SECTION 2.8. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Credit
24
Loan on the Termination Date. The Borrower hereby further agrees to pay to the
Administrative Agent interest on the unpaid principal amount of the Revolving
Credit Loans from time to time outstanding from the date hereof until payment in
full thereof at the rates per annum, and on the dates, set forth in Section 2.9.
(b) The Borrower unconditionally promises to pay to the
Administrative Agent, for the account of each Lender that makes a Competitive
Loan, on the last day of the Interest Period applicable to such Competitive
Loan, the principal amount of such Competitive Loan. The Borrower further
unconditionally promises to pay interest on each such Competitive Loan for the
period from and including the date of Borrowing of such Competitive Loan on the
unpaid principal amount thereof from time to time outstanding at the applicable
rate per annum determined as provided in, and payable as specified in, Section
2.9.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(d) The Administrative Agent shall maintain the Register pursuant to
Section 9.3(e), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Interest Rate Type
thereof and each Interest Period, if any, applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) both the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(e) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.8(c) shall, to the extent permitted by
applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation of the
Borrower to repay (with applicable interest) the Loans made to the Borrower by
such Lender in accordance with the terms of this Agreement.
(f) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Loans of such Lender,
substantially in the form of Exhibit A-1 with appropriate insertions as to date
and principal amount (a "REVOLVING CREDIT NOTE").
(g) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Competitive Loans of such Lender,
substantially in the form of Exhibit A-2 with appropriate insertions as to date,
principal amount and Currency (a "COMPETITIVE NOTE").
SECTION 2.9. INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.10, the Loans comprising
each LIBOR Borrowing shall bear interest at a rate per annum equal to (i) in the
case of each LIBOR
25
Revolving Credit Loan, LIBOR for the Interest Period in effect for such
Borrowing plus the applicable LIBOR Spread from time to time in effect and (ii)
in the case of each LIBOR Competitive Loan, LIBOR for the Interest Period in
effect for such Borrowing plus or minus the Margin offered by the Lender making
such Loan and accepted by the Borrower pursuant to Section 2.4. Interest on each
LIBOR Borrowing shall be payable on each applicable Interest Payment Date.
(b) Subject to the provisions of Section 2.10, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) at a rate per annum equal to the Alternate Base Rate plus the
applicable margin therefor from time to time in effect in accordance with
Section 2.22.
(c) Subject to the provisions of Section 2.10, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.4.
(d) Interest on each Loan shall be payable in arrears on each
Interest Payment Date applicable to such Loan. The LIBOR or the Alternate Base
Rate for each Interest Period or day within an Interest Period shall be
determined by the Administrative Agent and such determination shall be
conclusive absent manifest error.
SECTION 2.10. INTEREST ON OVERDUE AMOUNTS.
If the Borrower shall default in the payment of the principal of, or
interest on, any Loan or any other amount becoming due hereunder, the Borrower
shall on demand from time to time pay interest, to the extent permitted by
Applicable Law, on such defaulted amount up to (but not including) the date of
actual payment (after as well as before judgment) at a rate per annum computed
on the basis of the actual number of days elapsed over a year of 365 or 366
days, as applicable, in the case of amounts bearing interest determined by
reference to the Prime Rate and a year of 360 days in all other cases, equal to
(a) in the case of the remainder of the then current Interest Period for any
LIBOR Loan or Fixed Rate Loan, the rate applicable to such Loan under Section
2.9 plus 2% per annum and (b) in the case of any other amount, the rate that
would at the time be applicable to an ABR Loan under Section 2.9 plus 2% per
annum plus the applicable margin for ABR Loans in effect from time to time in
accordance with Section 2.22.
SECTION 2.11. ALTERNATE RATE OF INTEREST.
In the event the Administrative Agent shall have determined that
deposits in Dollars or the applicable Available Foreign Currency in the amount
of the requested principal amount of any LIBOR Loan are not generally available
in the London Interbank Market (or such other interbank eurocurrency market
where the foreign currency and exchange operations in respect of Dollars or such
applicable Available Foreign Currency, as the case may be, are then being
conducted for delivery on the first day of such Interest Period), or that the
rate at which such deposits are being offered will not adequately and fairly
reflect the cost to any Lender of making or maintaining its portion of such
LIBOR Loans during such Interest Period, or that reasonable means do not exist
for ascertaining LIBOR, the Administrative Agent shall, as soon as practicable
thereafter, give written or telecopier notice of such determination to the
Borrower
26
and the Lenders. In the event of any such determination, until the
Administrative Agent shall have determined that circumstances giving rise to
such notice no longer exist, (a) any request by the Borrower for a LIBOR
Competitive Borrowing pursuant to Section 2.4 shall be of no force and effect
and shall be denied by the Administrative Agent and (b) any request by the
Borrower for a LIBOR Borrowing pursuant to Section 2.5 shall be deemed to be a
request for an ABR Loan. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error.
SECTION 2.12. TERMINATION AND REDUCTION OF COMMITMENTS.
(a) The Commitments of all of the Lenders shall be automatically
terminated on the Termination Date.
(b) Subject to Section 2.13(b), upon at least three Business Days'
prior irrevocable written or telecopy notice to the Administrative Agent (which
shall promptly notify each Lender), the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Commitments; PROVIDED that (i) each partial reduction shall be in an integral
multiple of $1,000,000 and in a minimum principal amount of $10,000,000 and (ii)
the Borrower shall not be entitled to make any such termination or reduction
that would reduce a type of Commitment to an amount less than the sum of the
aggregate outstanding principal Dollar Equivalent Amount of the related Loans.
(c) Each reduction in a type of Commitment hereunder shall be made
ratably among the applicable Lenders in accordance with their respective
Commitments. The Borrower shall pay to the Administrative Agent for the account
of the applicable Lenders on the date of each termination or reduction in a type
of Commitment, the Facility Fees and the Utilization Fees on the amount of the
Commitments so terminated or reduced accrued to the date of such termination or
reduction.
SECTION 2.13. PREPAYMENT OF LOANS.
(a) Prior to the Termination Date, the Borrower shall have the right
at any time to prepay any Revolving Credit Borrowing, in whole or in part,
subject to the requirements of Section 2.17 but otherwise without premium or
penalty, upon prior written or telecopy notice to the Administrative Agent
(which shall promptly notify each Lender) before 2:00 p.m. New York City time of
at least one Business Day in the case of an ABR Loan and of at least three
Working Days in the case of a LIBOR Loan; PROVIDED that each such partial
prepayment shall be in a minimum aggregate principal Dollar Equivalent Amount of
$1,000,000 or a whole multiple in excess thereof. The Borrower shall not have
the right to prepay any Competitive Borrowing without the consent of the
relevant Lender.
(b) On any date when the sum of the Dollar Equivalent Amount of the
aggregate outstanding Loans (after giving effect to any Borrowings effected on
such date) exceeds the Total Commitment, the Borrower shall make a mandatory
prepayment of the Loans in such amount as may be necessary so that the Dollar
Equivalent Amount of the aggregate amount of outstanding Loans after giving
effect to such prepayment does not exceed the Total Commitment then in effect.
Any prepayments required by this paragraph shall be applied to outstanding ABR
Loans up to the full amount thereof before they are applied to outstanding LIBOR
Loans.
27
(c) Each notice of prepayment pursuant to this Section 2.13 shall
specify the specific Borrowing(s), the prepayment date and the aggregate
principal amount of each Borrowing to be prepaid, shall be irrevocable and shall
commit the Borrower to prepay such Borrowing(s) by the amount stated therein.
All prepayments under this Section 2.13 shall be accompanied by accrued interest
on the principal amount being prepaid to the date of prepayment and any amounts
due pursuant to Section 2.17.
SECTION 2.14. EUROCURRENCY RESERVE COSTS.
The Borrower shall pay to the Administrative Agent for the account
of each Lender, so long as such Lender shall be required under regulations of
the Board to maintain reserves with respect to liabilities or assets consisting
of, or including, Eurocurrency Liabilities (as defined in Regulation D of the
Board) (or, at any time when such Lender may be required by the Board or by any
other Governmental Authority, whether within the United States or in another
relevant jurisdiction, to maintain reserves against any other category of
liabilities which includes deposits by reference to which LIBOR is determined as
provided in this Agreement or against any category of extensions of credit or
other assets of such Lender which includes any such LIBOR Loans), additional
interest on the unpaid principal amount of each LIBOR Loan made to the Borrower
by such Lender, from the date of such Loan until such Loan is paid in full, at
an interest rate per annum equal at all times during the Interest Period for
such Loan to the remainder obtained by subtracting (i) LIBOR for such Interest
Period from (ii) the rate obtained by multiplying LIBOR as referred to in clause
(i) above by the Statutory Reserves of such Lender for such Interest Period.
Such additional interest shall be determined by such Lender and notified to the
Borrower (with a copy to the Administrative Agent) not later than five Business
Days before the next Interest Payment Date for such Loan, and such additional
interest so notified to the Borrower by any Lender shall be payable to the
Administrative Agent for the account of such Lender on each Interest Payment
Date for such Loan.
SECTION 2.15. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the date of
this Agreement any change in Applicable Law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) (i) shall subject any Lender to, or increase the net amount of,
any tax, levy, impost, duty, charge, fee, deduction or withholding with respect
to any Loan, or shall change the basis of taxation of payments to any Lender of
the principal of or interest on any Loan made by such Lender or any other fees
or amounts payable hereunder (other than (x) taxes imposed on the overall net
income of such Lender by the jurisdiction in which such Lender has its principal
office or its applicable Lending Office or by any political subdivision or
taxing authority therein (or any tax which is enacted or adopted by such
jurisdiction, political subdivision or taxing authority as a direct substitute
for any such taxes) or (y) any tax, assessment, or other governmental charge
that would not have been imposed but for the failure of any Lender to comply
with any certification, information, documentation or other reporting
requirement), (ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender, or (iii) shall impose on any
Lender or eurocurrency market any other condition affecting this Agreement or
any Loan made by such Lender, and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Loan or to reduce
the amount
28
of any sum received or receivable by such Lender hereunder (whether of
principal, interest or otherwise) in respect thereof by an amount deemed in good
faith by such Lender to be material, then the Borrower shall pay such additional
amount or amounts as will compensate such Lender for such increase or reduction
to such Lender upon demand by such Lender.
(b) If, after the date of this Agreement, any Lender shall have
determined in good faith that the adoption after the date hereof of or any
change after the date hereof in any applicable law, rule, regulation or
guideline regarding capital adequacy, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or any Lending Office of such Lender) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's capital or on
the capital of such Lender's holding company, if any, as a consequence of its
obligations hereunder to a level below that which such Lender (or its holding
company) could have achieved but for such applicability, adoption, change or
compliance (taking into consideration such Lender's policies or the policies of
its holding company, as the case may be, with respect to capital adequacy) by an
amount deemed by such Lender to be material, then, from time to time, the
Borrower shall pay to the Administrative Agent for the account of such Lender
(or its holding company) such additional amount or amounts as will compensate
such Lender for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable detail (i)
such amount or amounts as shall be necessary to compensate such Lender as
specified in paragraph (a) or (b) above, as the case may be, and (ii) the
calculation of such amount or amounts referred to in the preceding clause (i),
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay the Administrative Agent for the account of such
Lender the amount shown as due on any such certificate within 10 Business Days
after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any Interest Period shall not constitute a
waiver of such Lender's rights to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital
with respect to such Interest Period or any other Interest Period. The
protection of this Section 2.15 shall be available to each Lender regardless of
any possible contention of invalidity or inapplicability of the law, regulation
or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after it
becomes aware of the occurrence of an event or the existence of a condition that
(i) would cause it to incur any increased cost under this Section 2.15, Section
2.16 or Section 2.21 or (ii) would require the Borrower to pay an increased
amount under this Section 2.15, Section 2.16 or Section 2.21, it will use
reasonable efforts to notify the Borrower of such event or condition and, to the
extent not inconsistent with such Lender's internal policies, will use its
reasonable efforts to make, fund or maintain the affected Loans of such Lender
through another Lending Office of such Lender if as a result thereof the
additional monies which would otherwise be required to be paid or the reduction
of amounts receivable by such Lender thereunder in respect of such Loans would
be
29
materially reduced, or any inability to perform would cease to exist, or the
increased costs which would otherwise be required to be paid in respect of such
Loans pursuant to this Section 2.15, Section 2.16 or Section 2.21 would be
materially reduced or the taxes or other amounts otherwise payable under this
Section 2.15, Section 2.16 or Section 2.21 would be materially reduced, and if,
as determined by such Lender, in its sole reasonable discretion, the making,
funding or maintaining of such Loans through such other Lending Office would not
otherwise materially adversely affect such Loans.
(f) In the event any Lender shall have delivered to the Borrower a
notice that LIBOR Loans are no longer available from such Lender pursuant to
Section 2.16, that amounts are due to such Lender pursuant to paragraph (c)
above, that any of the events designated in paragraph (e) above have occurred or
that a Lender shall not be rated at least BBB by S&P and Baa2 by ▇▇▇▇▇'▇, the
Borrower may (but subject in any such case to the payments required by Section
2.17), PROVIDED that there shall exist no Default or Event of Default, upon at
least five Business Days' prior written or telecopier notice to such Lender and
the Administrative Agent, but not more than 30 days after receipt of notice from
such Lender, identify to the Administrative Agent a lending institution
reasonably acceptable to the Administrative Agent which will purchase the
Commitment, the amount of outstanding Loans from the Lender providing such
notice and such Lender shall thereupon assign its Commitment, any Loans owing to
such Lender and the Notes held by such Lender to such replacement lending
institution pursuant to Section 9.3. Such notice shall specify an effective date
for such assignment and at the time thereof, the Borrower shall pay all accrued
interest, Facility Fees, Utilization Fees and all other amounts (including
without limitation all amounts payable under this Section and Sections 2.21, 9.4
and 9.5) owing hereunder to such Lender as at such effective date for such
assignment.
SECTION 2.16. CHANGE IN LEGALITY.
(a) Notwithstanding anything to the contrary herein contained, if
any change in any law or regulation or in the interpretation thereof by any
Governmental Authority charged with the administration or interpretation thereof
shall make it unlawful for any Lender to make or maintain any LIBOR Loan or to
give effect to its obligations as contemplated hereby, then, by written notice
to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that LIBOR Loans will not thereafter be made by
such Lender hereunder, whereupon such Lender shall not submit a
Competitive Bid in response to a request for LIBOR Competitive Loans
and the Borrower shall be prohibited from requesting LIBOR Revolving
Credit Loans from such Lender hereunder unless such declaration is
subsequently withdrawn; and
(ii) require that all outstanding LIBOR Loans (in Dollars)
made by it be converted to ABR Loans in which event (A) all such
LIBOR Loans shall be automatically converted to ABR Loans as of the
effective date of such notice as provided in Section 2.16(b) and (B)
all payments and prepayments of principal which would otherwise have
been applied to repay the converted LIBOR Loans shall instead be
applied to repay the ABR Loan resulting from the conversion of such
LIBOR Loans.
(b) For purposes of this Section 2.16, a notice to the Borrower by
any Lender pursuant to Section 2.16(a) shall be effective on the date of receipt
thereof by the Borrower.
30
SECTION 2.17. REIMBURSEMENT OF LENDERS.
(a) The Borrower shall reimburse each Lender on demand for any loss
incurred or to be incurred by it in the reemployment of the funds released (i)
by any prepayment (for any reason, including any refinancing) of any LIBOR or
Fixed Rate Loan if such Loan is repaid other than on the last day of the
applicable Interest Period for such Loan or (ii) in the event that after the
Borrower delivers a notice of borrowing under Section 2.5 in respect of LIBOR
Revolving Credit Loans or a Competitive Bid Accept/Reject Letter under Section
2.4(d), pursuant to which it has accepted Competitive Bids of one or more of the
Lenders, the applicable Loan is not made on the first day of the Interest Period
specified by the Borrower for any reason other than (I) a suspension or
limitation under Section 2.16 of the right of the Borrower to select a LIBOR
Loan or (II) a breach by a Lender of its obligations hereunder. In the case of
such failure to borrow, such loss shall be the amount as reasonably determined
by such Lender as the excess, if any, of (A) the amount of interest which would
have accrued to such Lender on the amount not borrowed, at a rate of interest
equal to the interest rate applicable to such Loan pursuant to Section 2.9, for
the period from the date of such failure to borrow to the last day of the
Interest Period for such Loan which would have commenced on the date of such
failure to borrow, over (B) the amount realized by such Lender in reemploying
the funds not advanced during the period referred to above. In the case of a
payment other than on the last day of the Interest Period for a Loan, such loss
shall be the amount of the excess, if any, of (A) the amount of interest which
would have accrued on the amount so paid at a rate of interest equal to the
interest rate applicable to such Loan pursuant to Section 2.9, for the period
from the date of such payment to the last day of the then current Interest
Period for such Loan, over (B) an amount equal to the product of (x) the amount
of the Loan so paid TIMES (y) the current daily yield on U.S. Treasury
Securities (at such date of determination) with maturities approximately equal
to the remaining Interest Period for such Loan TIMES (z) the number of days
remaining in the Interest Period for such Loan. Each Lender shall deliver to the
Borrower from time to time one or more certificates setting forth the amount of
such loss (and in reasonable detail the manner of computation thereof) as
determined by such Lender, which certificates shall be conclusive absent
manifest error. The Borrower shall pay to the Administrative Agent for the
account of each Lender the amount shown as due on any certificate within thirty
(30) days after its receipt of the same.
(b) In the event the Borrower fails to prepay any Loan on the date
specified in any prepayment notice delivered pursuant to Section 2.13(a), the
Borrower on demand by any Lender shall pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any
loss incurred by such Lender as a result of such failure to prepay, including,
without limitation, any loss, cost or expenses incurred by reason of the
acquisition of deposits or other funds by such Lender to fulfill deposit
obligations incurred in anticipation of such prepayment. Each Lender shall
deliver to the Borrower and the Administrative Agent from time to time one or
more certificates setting forth the amount of such loss (and in reasonable
detail the manner of computation thereof) as determined by such Lender, which
certificates shall be conclusive absent manifest error.
SECTION 2.18. PRO RATA TREATMENT.
Except as permitted under Sections 2.14, 2.15(c), 2.15(f), 2.16,
2.17 and 4.1(f), each Borrowing, each reduction of the aggregate Commitments
shall be allocated pro rata among the Lenders in accordance with their
respective Commitments (or, if such Commitments shall
31
have expired or been terminated, in accordance with the respective principal
amount of their Loans) and each payment or prepayment of principal of any
Borrowing and each payment of interest on the Loans shall be allocated pro rata
in accordance with the respective principal amount of the Loans then held by the
Lenders. Each payment of principal of any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective principal amounts of their outstanding
Competitive Loans comprising such Borrowing. Each payment of interest on any
Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective amounts of
accrued and unpaid interest on their outstanding Competitive Loans comprising
such Borrowing. For purposes of determining the available Commitments of the
Lenders at any time, each outstanding Competitive Borrowing shall be deemed to
have utilized the Commitments of the Lenders (including those Lenders that shall
not have made Loans as part of such Competitive Borrowing) pro rata in
accordance with such respective Commitments. Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing computed in accordance with Section 2.1, to the next higher or
lower whole Dollar amount.
SECTION 2.19. RIGHT OF SETOFF.
If any Event of Default shall have occurred and be continuing and
any Lender shall have requested the Administrative Agent to declare the Loans
immediately due and payable pursuant to Article 7, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
Applicable Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by such Lender and any
other indebtedness at any time owing by such Lender to, or for the credit or the
account of, each Borrower, against any of and all the obligations now or
hereafter existing under this Agreement and the Loans held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement or such Loans and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such setoff and
application made by such Lender, but the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each Lender
under this Section 2.19 are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have and are subject to the
provisions of Section 8.2.
SECTION 2.20. MANNER OF PAYMENTS.
All payments by the Borrower hereunder and under the Notes shall be
made in Dollars or other applicable Currency in immediately available funds,
without setoffs, deductions or counterclaims, at the office of the
Administrative Agent's Agent Bank Services Department, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, for credit to PHH
Corporation Clearing Account, Account No. ▇▇▇-▇-▇▇▇▇▇ (Reference: PHH
Corporation Credit Agreement dated March 4, 1997) or as otherwise directed by
the Borrower (with the consent of the Administrative Agent, which consent shall
not be unreasonably withheld) no later than 4:30 p.m., New York City time, on
the date on which such payment shall be due. Interest in respect of any Loan
hereunder shall accrue from and including the date of such Loan to, but
excluding, the date on which such Loan is paid or refinanced with a Loan of a
different Interest Rate Type.
32
SECTION 2.21. WITHHOLDING TAXES.
(a) Prior to the date of the initial Loans hereunder, and from time
to time thereafter if requested by the Borrower or the Administrative Agent or
required because, as a result of a change in Applicable Law or a change in
circumstances or otherwise, a previously delivered form or statement becomes
incomplete or incorrect in any material respect, each Lender organized under the
laws of a jurisdiction outside the United States shall provide, if applicable,
the Administrative Agent and the Borrower with complete, accurate and duly
executed forms or other statements prescribed by a Governmental Authority
certifying such Lender's exemption, if any, from, or entitlement to a reduced
rate, if any, of, withholding taxes (including backup withholding taxes) with
respect to all payments to be made to such Lender hereunder and under the Notes.
(b) The Borrower and the Administrative Agent shall be entitled to
deduct and withhold any and all present or future taxes or withholdings, and all
liabilities with respect thereto, from payments hereunder or under the Notes, if
and to the extent that the Borrower or the Administrative Agent in good faith
determines that such deduction or withholding is required by Applicable Law,
including, without limitation, any applicable treaty. In the event the Borrower
or the Administrative Agent shall so determine that deduction or withholding of
taxes is required, it shall advise the affected Lender as to the basis of such
determination prior to actually deducting and withholding such taxes. In the
event the Borrower or the Administrative Agent shall so deduct or withhold taxes
from amounts payable hereunder, it (i) shall pay to or deposit with the
appropriate taxing authority in a timely manner the full amount of taxes it has
deducted or withheld; (ii) shall provide evidence of payment of such taxes to,
or the deposit thereof with, the appropriate taxing authority and a statement
setting forth the amount of taxes deducted or withheld, the applicable rate, and
any other information or documentation reasonably requested by the Lenders from
whom the taxes were deducted or withheld; and (iii) shall forward to such
Lenders any receipt for such payment or deposit of the deducted or withheld
taxes as may be issued from time to time by the appropriate taxing authority.
Unless the Borrower and the Administrative Agent have received forms or other
documents satisfactory to them indicating that payments hereunder or under the
Notes are not subject to withholding tax or are subject to such tax at a rate
reduced by an applicable tax treaty, the Borrower or the Administrative Agent
may withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Lender.
(c) Each Lender agrees (i) that as between it and the Borrower or
the Administrative Agent, it shall be the Person to deduct and withhold taxes,
and to the extent required by law it shall deduct and withhold taxes, on amounts
that such Lender may remit to any other Person(s) by reason of any undisclosed
transfer or assignment of an interest in this Agreement to such other Person(s)
pursuant to paragraph (g) of Section 9.3 and (ii) to indemnify the Borrower and
the Administrative Agent and any of their officers, directors, agents, or
employees against, and to hold them harmless from, any tax, interest, additions
to tax, penalties, reasonable counsel and accountants' fees, disbursements or
payments arising from the assertion by any appropriate taxing authority of any
claim against them relating to a failure to withhold taxes as required by
Applicable Law with respect to amounts described in clause (i) of this paragraph
(c).
33
(d) Each assignee of a Lender's interest in this Agreement in
conformity with Section 9.3 shall be bound by this Section 2.21, so that such
assignee will have all of the obligations and provide all of the forms and
statements and all indemnities, representations and warranties required to be
given under this Section 2.21.
(e) In the event that any withholding taxes shall become payable as
a result of any change in any statute, treaty, ruling, determination or
regulation occurring after the Initial Date (as defined below) in respect of any
sum payable hereunder or under any other Fundamental Document to any Lender or
the Administrative Agent (i) the sum payable by the Borrower shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.21) such
Lender or the Administrative 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, the Lender or the Administrative Agent (as the case may be) shall make
such deductions and (iii) the Borrower, the Lender or the Administrative Agent
(as the case may be) shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with Applicable Law. For purposes of
this Section 2.21, the term "Initial Date" shall mean (i) in the case of the
Administrative Agent, the date hereof, (ii) in the case of each Lender as of the
date hereof, the date hereof and (iii) in the case of any other Lender, the
effective date of the Assignment and Acceptance pursuant to which it became a
Lender.
SECTION 2.22. CERTAIN PRICING ADJUSTMENTS.
The Facility Fee and the applicable LIBOR Spread in effect from time
to time shall be determined in accordance with the following table:
S&P/▇▇▇▇▇'▇ Rating
Equivalent of the
Borrower's senior
unsecured Facility Fee Applicable LIBOR
long-term debt (in Basis Points) Spread (In Basis Points)
-------------- ----------------- ------------------------
A/A2 or better 10.0 52.5
A-/A3 12.5 62.5
BBB+/Baa1 15.0 72.5
BBB/Baa2 17.5 82.5
BBB-/Baa3 22.5 90.0
BB+/Ba1 or worse 37.5 137.5
In the event the S&P rating on the Borrower's senior unsecured
long-term debt is not equivalent to the ▇▇▇▇▇'▇ rating on such debt, the higher
rating will determine the Facility Fee and applicable LIBOR Spread, unless the
S&P and Moody's ratings are more than one level apart, in which case the rating
one level below the higher rating will be determinative. In the event that the
Borrower's senior unsecured long-term debt is rated by only one of S&P and
Moody's (for any reason, including if S&P or Moody's shall cease to be in the
business of rating corporate debt obligations) or if the rating system of either
S&P or Moody's shall change, then an amendment shall be negotiated in good faith
(and shall be effective only upon approval by the Borrower and the Supermajority
Lenders) to the references to specific ratings in the table above to reflect
such changed rating system or the unavailability of ratings from such rating
agency
34
(including an amendment to provide for the substitution of an equivalent or
successor ratings agency). In the event that the Borrower's senior unsecured
long-term debt is not rated by either S&P or Moody's, then the Facility Fee and
the applicable LIBOR Spread shall be deemed to be calculated as if the lowest
rating category set forth above applied. Any increase in the Facility Fee or the
applicable LIBOR Spread determined in accordance with the foregoing table shall
become effective on the date of announcement or publication by the Borrower or
the applicable rating agency of a reduction in such rating or, in the absence of
such announcement or publication, on the effective date of such decreased
rating, or on the date of any request by the Borrower to either rating agency
not to rate its senior unsecured long-term debt or on the date either of such
rating agencies announces it shall no longer rate the Borrower's senior
unsecured long-term debt. Any decrease in the Facility Fee or applicable LIBOR
Spread shall be effective on the date of announcement or publication by either
of such rating agencies of an increase in rating or in the absence of
announcement or publication on the effective date of such increase in rating.
The applicable margin for ABR Loans shall be 1% less than the applicable LIBOR
Spread (but not less than 0%).
3. REPRESENTATIONS AND WARRANTIES OF BORROWER
In order to induce the Lenders to enter into this Agreement and to
make the Loans, the Borrower makes the following representations and warranties
to the Administrative Agent and the Lenders, all of which shall survive the
execution and delivery of this Agreement, the issuance of the Notes and the
making of the Loans:
SECTION 3.1. CORPORATE EXISTENCE AND POWER.
The Borrower and its Subsidiaries have been duly organized and are
validly existing in good standing under the laws of their respective
jurisdictions of incorporation and are in good standing or have applied for
authority to operate as a foreign corporation in all jurisdictions where the
nature of their properties or business so requires it and where a failure to be
in good standing as a foreign corporation would have a Material Adverse Effect.
The Borrower has the corporate power to execute, deliver and perform its
obligations under this Agreement and the other Fundamental Documents and other
documents contemplated hereby and to borrow hereunder.
SECTION 3.2. CORPORATE AUTHORITY AND NO VIOLATION.
The execution, delivery and performance of this Agreement and the
other Fundamental Documents and the borrowings hereunder (a) have been duly
authorized by all necessary corporate action on the part of the Borrower, (b)
will not violate any provision of any Applicable Law applicable to the Borrower
or any of its Subsidiaries or any of their respective properties or assets, (c)
will not violate any provision of the Certificate of Incorporation or By-Laws of
the Borrower or any of its Subsidiaries, or any Contractual Obligation of the
Borrower or any of its Subsidiaries, (d) will not be in conflict with, result in
a breach of, or constitute (with due notice or lapse of time or both) a default
under, any material indenture, agreement, bond, note or instrument and (e) will
not result in the creation or imposition of any Lien upon any property or assets
of the Borrower or any of its Subsidiaries other than pursuant to this Agreement
or any other Fundamental Document.
35
SECTION 3.3. GOVERNMENTAL AND OTHER APPROVAL AND CONSENTS.
No action, consent or approval of, or registration or filing with,
or any other action by, any governmental agency, bureau, commission or court is
required in connection with the execution, delivery and performance (including
the making of borrowings) by the Borrower of this Agreement or the other
Fundamental Documents.
SECTION 3.4. FINANCIAL STATEMENTS OF BORROWER.
The (a) audited consolidated financial statements of the Borrower
and its Consolidated Subsidiaries as of December 31, 1999 and December 31, 2000,
and (b) unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of September 30, 2001, in each case, together with
the related unaudited statements of income, shareholders' equity and cash flows
for the periods then ended fairly present the financial position of the Borrower
and its Consolidated Subsidiaries as at the dates indicated and the results of
operations and cash flows for the periods indicated in conformity with GAAP
subject to normal year-end adjustments in the case of such quarterly financial
statements.
SECTION 3.5. NO MATERIAL ADVERSE CHANGE.
Since December 31, 2000 there has been no material adverse change in
the business, assets, operations or condition, financial or otherwise, of the
Borrower and its Consolidated Subsidiaries taken as a whole; PROVIDED that the
foregoing representation is made solely as of the Closing Date.
SECTION 3.6. [INTENTIONALLY DELETED].
SECTION 3.7. COPYRIGHTS, PATENTS AND OTHER RIGHTS.
Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, service marks, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.8. TITLE TO PROPERTIES.
Each of the Borrower and its Material Subsidiaries will have at the
Closing Date good title or valid leasehold interests to each of the properties
and assets reflected on the balance sheets referred to in Section 3.4, except
for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended
purposes, and all such properties and assets will be free and clear of Liens,
except Permitted Encumbrances.
SECTION 3.9. LITIGATION.
There are no lawsuits or other proceedings pending (including, but
not limited to, matters relating to environmental liability), or, to the
knowledge of the Borrower, threatened, against or affecting the Borrower or any
of its Subsidiaries or any of their respective properties,
36
by or before any Governmental Authority or arbitrator, which could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor any of its
Subsidiaries is in default with respect to any order, writ, injunction, decree,
rule or regulation of any Governmental Authority, which default would have a
Material Adverse Effect.
SECTION 3.10. FEDERAL RESERVE REGULATIONS.
Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans will be used, whether immediately, incidentally or
ultimately, for any purpose violative of or inconsistent with any of the
provisions of Regulation T, U or X of the Board.
SECTION 3.11. INVESTMENT COMPANY ACT.
The Borrower is not, and will not during the term of this Agreement
be, (x) an "investment company", within the meaning of the Investment Company
Act of 1940, as amended or (y) subject to regulation under the Public Utility
Holding Company Act of 1935 or the Federal Power Act.
SECTION 3.12. ENFORCEABILITY.
This Agreement and the other Fundamental Documents when executed
will constitute legal, valid and enforceable obligations (as applicable) of the
Borrower (subject, as to enforcement, to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity).
SECTION 3.13. TAXES.
The Borrower and each of its Subsidiaries have filed or caused to be
filed all federal, provincial, state and local tax returns which are required to
be filed, and have paid or have caused to be paid all taxes as shown on said
returns or on any assessment received by them in writing, to the extent that
such taxes have become due, except (a) as permitted by Section 5.4 or (b) to the
extent that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.14. COMPLIANCE WITH ERISA.
Each of the Borrower and its Subsidiaries is in compliance in all
material respects with the provisions of ERISA and the Code applicable to Plans,
and the regulations and published interpretations thereunder, if any, which are
applicable to it and the applicable laws, rules and regulations of any
jurisdiction applicable to Plans. Neither the Borrower nor any of its
Subsidiaries has, with respect to any Plan established or maintained by it,
engaged in a prohibited transaction which would subject it to a material tax or
penalty on prohibited transactions imposed by ERISA or Section 4975 of the Code.
No liability to the PBGC that is material to the Borrower and its Subsidiaries
taken as a whole has been, or to the Borrower's best knowledge is reasonably
expected to be, incurred with respect to the Plans and there has been no
Reportable Event and no other event or condition that presents a material risk
of termination of a Plan by the PBGC. Neither the Borrower nor any of its
Subsidiaries has engaged in a transaction
37
which would result in the incurrence of a material liability under Section 4069
of ERISA. As of the Closing Date, neither the Borrower nor any of its
Subsidiaries contributes to a Multiemployer Plan, and has not incurred any
liability that would be material to the Borrower and its Subsidiaries taken as a
whole on account of a partial or complete withdrawal (as defined in Sections
4203 and 4205 of ERISA, respectively) with respect to any Multiemployer Plan.
SECTION 3.15. DISCLOSURE.
As of the Closing Date, neither this Agreement nor the Confidential
Information Memorandum dated January 2002, at the time it was furnished,
contained any untrue statement of a material fact or omitted to state a material
fact, under the circumstances under which it was made, necessary in order to
make the statements contained herein or therein not misleading. At the Closing
Date, there is no fact known to the Borrower which, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.16. ENVIRONMENTAL LIABILITIES.
Except with respect to any matters, that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
4. CONDITIONS OF LENDING
SECTION 4.1. CONDITIONS PRECEDENT TO EFFECTIVENESS.
The effectiveness of this Agreement is subject to the following
conditions precedent:
(a) LOAN DOCUMENTS. The Administrative Agent shall have received
this Agreement and each of the other Fundamental Documents, each executed and
delivered by a duly authorized officer of the Borrower.
(b) CORPORATE DOCUMENTS FOR THE BORROWER. The Administrative Agent
shall have received, with copies for each of the Lenders, a certificate of the
Secretary or Assistant Secretary of the Borrower dated the date hereof and
certifying (A) that attached thereto is a true and complete copy of the
certificate of incorporation and by-laws of the Borrower as in effect on the
date of such certification; (B) that attached thereto is a true and complete
copy of resolutions adopted by the Board of Directors of the Borrower
authorizing the borrowings hereunder and the execution, delivery and performance
in accordance with their respective terms of this Agreement and any other
documents required or contemplated hereunder; and (C) as to the incumbency and
specimen signature of each officer of the Borrower executing this Agreement or
any other document delivered by it in connection herewith (such certificate to
contain a certification by another officer of the Borrower as to the incumbency
and signature of the officer signing the certificate referred to in this
paragraph (b)).
38
(c) FINANCIAL STATEMENTS. The Lenders shall have received the (i)
audited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries as of and for the fiscal years ended December 31, 1999 and December
31, 2000 and (ii) unaudited consolidated financial statements of the Borrower
and its Consolidated Subsidiaries as of and for the nine-month period ended
September 30, 2001.
(d) OPINIONS OF COUNSEL. The Administrative Agent shall have
received the favorable written opinions, dated the date hereof and addressed to
the Administrative Agent and the Lenders, of internal counsel of
PHH Corporation
and of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, substantially in the form of
Exhibits B-1 and B-2 hereto respectively.
(e) NO MATERIAL ADVERSE CHANGE. The Administrative Agent shall be
satisfied that no material adverse change shall have occurred with respect to
the business, assets, operations or condition, financial or otherwise, of the
Borrower and its Consolidated Subsidiaries, taken as a whole, since December 31,
2000.
(f) PAYMENT OF FEES. The Administrative Agent shall be satisfied
that all amounts payable to the Lead Arranger, the Administrative Agent and the
other Lenders pursuant hereto or with regard to the transactions contemplated
hereby have been or are simultaneously being paid.
(g) CLOSING DATE PAYMENTS. The Borrower and the Lenders shall have
made such payments among themselves on the Closing Date as directed by the
Administrative Agent with the result that, after giving effect thereto, the
outstanding Revolving Credit Loans if any, shall be held by the Lenders pro rata
in accordance with their respective Commitments. The Borrower shall have paid to
the Administrative Agent, for the account of the respective lenders under the
Existing Credit Agreement, all unpaid fees and other amounts accrued under the
Existing Credit Agreement to the Closing Date.
(h) LITIGATION. No litigation shall be pending or, to the Borrower's
knowledge, threatened which would be likely to have a Material Adverse Effect,
or which could reasonably be expected to materially adversely affect the ability
of the Borrower to fulfill their obligations hereunder or to otherwise
materially impair the interests of the Lenders.
(i) OFFICER'S CERTIFICATE. The Administrative Agent shall have
received a certificate of the chief executive officer or chief financial officer
or chief accounting officer of the Borrower certifying, as of the Closing Date,
compliance with the conditions set forth in paragraphs (b) and (c) of Section
4.2.
(j) OTHER AGREEMENTS. The Administrative Agent shall have received
evidence of the effectiveness of the Second Amendment, dated as of February 21,
2002, to the Five Year Competitive Advance and Revolving Credit Agreement dated
as of March 4, 1997, as amended and restated through February 28, 2000, by and
among the Borrower, the lenders parties thereto and JPMorgan Chase Bank, as
administrative agent.
39
SECTION 4.2. CONDITIONS PRECEDENT TO EACH LOAN. The obligation of
the Lenders to make each Loan, including the initial Loan hereunder, is subject
to the following conditions precedent:
(a) NOTICE. The Administrative Agent shall have received a notice
with respect to such Borrowing as required by Article 2 hereof.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in Article 3 (other than those set forth in Section 3.5,
which shall be deemed made only on the Closing Date) and in the other
Fundamental Documents shall be true and correct in all material respects on and
as of the date of each Borrowing hereunder (except to the extent that such
representations and warranties expressly relate to an earlier date) with the
same effect as if made on and as of such date; PROVIDED that this condition
shall not apply to a Revolving Credit Borrowing which is solely refinancing
outstanding Revolving Credit Loans and which, after giving effect thereto, has
not increased the aggregate amount of outstanding Revolving Credit Loans.
(c) NO EVENT OF DEFAULT. On the date of each Borrowing hereunder,
the Borrower shall be in material compliance with all of the terms and
provisions set forth herein to be observed or performed and no Event of Default
or Default shall have occurred and be continuing on such date or after giving
effect to the Borrowing to be made on such date; PROVIDED that this condition
shall not apply to a Revolving Credit Borrowing which is solely refinancing
outstanding Revolving Credit Loans and which, after giving effect thereto, has
not increased the aggregate amount of outstanding Revolving Credit Loans.
Each Borrowing shall be deemed to be a representation and warranty by the
Borrower on the date of such Borrowing as to the matters specified in paragraphs
(b) and (c) of this Section.
5. AFFIRMATIVE COVENANTS
For so long as the Commitments shall be in effect or any amount
shall remain outstanding under any Note or unpaid under this Agreement, the
Borrower agrees that, unless the Required Lenders shall otherwise consent in
writing, it will, and will cause each of its Subsidiaries to:
SECTION 5.1. FINANCIAL STATEMENTS, REPORTS, ETC.
Deliver to each Lender:
(a) As soon as is practicable, but in any event within 100 days
after the end of each fiscal year of the Borrower, (i) either (A) consolidated
statements of income (or operations) and consolidated statements of cash flows
and changes in stockholders' equity of the Borrower and its Consolidated
Subsidiaries for such year and the related consolidated balance sheets as at the
end of such year, or (B) the Form 10K filed by the Borrower with the Securities
and Exchange Commission and (ii) if not included in such Form 10K, an opinion of
independent certified public accountants of recognized national standing, which
opinion shall state that said consolidated financial statements fairly present
the consolidated financial position and results of operations of the Borrower
and its Consolidated Subsidiaries as at the end of, and for, such fiscal
40
year and that such financial statements were prepared in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods;
(b) As soon as is practicable, but in any event within 60 days after
the end of each of the first three fiscal quarters of each fiscal year, either
(i) the Form 10-Q filed by the Borrower with the Securities and Exchange
Commission or (ii) the unaudited consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries, as at the end of such fiscal quarter, and the
related unaudited statements of income and cash flows for such quarter and for
the period from the beginning of the then current fiscal year to the end of such
fiscal quarter and the corresponding figures as of the end of the preceding
fiscal year, and for the corresponding period in the preceding fiscal year, in
each case, together with a certificate (substantially in the form of Exhibit D)
signed by the chief financial officer, the chief accounting officer or a vice
president responsible for financial administration of the Borrower to the effect
that such financial statements, while not examined by independent public
accountants, reflect, in his opinion and in the opinion of the Borrower, all
adjustments necessary to present fairly the financial position of the Borrower
and its Consolidated Subsidiaries, as the case may be, as at the end of the
fiscal quarter and the results of their operations for the quarter then ended in
conformity with GAAP consistently applied, subject only to year-end and audit
adjustments and to the absence of footnote disclosure;
(c) Together with the delivery of the statements referred to in
paragraphs (a) and (b) of this Section 5.1, a certificate of the chief financial
officer, chief accounting officer or a vice president responsible for financial
administration of the Borrower, substantially in the form of Exhibit D hereto
(i) stating whether or not the signer has knowledge of any Default or Event of
Default and, if so, specifying each such Default or Event of Default of which
the signer has knowledge and the nature thereof and (ii) demonstrating in
reasonable detail compliance with the provisions of Sections 6.7 and 6.8;
(d) Promptly upon any executive officer of the Borrower or any of
its Subsidiaries obtaining knowledge of the occurrence of any Default or Event
of Default, a certificate of the president, chief financial officer or chief
accounting officer of the Borrower specifying the nature and period of existence
of such Default or Event of Default and what action the Borrower has taken, is
taking and proposes to take with respect thereto; and
(e) Promptly upon any executive officer of the Borrower or any of
its Subsidiaries obtaining knowledge of (i) the institution of any action, suit,
proceeding, investigation or arbitration by any Governmental Authority or other
Person against or affecting the Borrower or any of its Subsidiaries or any of
their assets, or (ii) any material development in any such action, suit,
proceeding, investigation or arbitration (whether or not previously disclosed to
the Lenders), which, in each case might reasonably be expected to have a
Material Adverse Effect, prompt notice thereof and such other information as may
be reasonably available to it (without waiver of any applicable evidentiary
privilege) to enable the Lenders to evaluate such matters.
SECTION 5.2. CORPORATE EXISTENCE; COMPLIANCE WITH STATUTES.
Do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its corporate existence, rights, licenses, permits
and franchises and comply, except where failure to comply, either individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, with all provisions of Applicable Law, and all
41
applicable restrictions imposed by any Governmental Authority, and all state and
provincial laws and regulations of similar import; PROVIDED that mergers,
dissolutions and liquidations permitted under Section 6.4 shall be permitted.
SECTION 5.3. INSURANCE.
Maintain with good and reputable insurers insurance in such amounts
and against such risks as are customarily insured against by companies in
similar businesses; PROVIDED HOWEVER, that (a) workmen's compensation insurance
or similar coverage may be effected with respect to its operations in any
particular state or other jurisdiction through an insurance fund operated by
such state or jurisdiction and (b) such insurance may contain self-insurance
retention and deductible levels consistent as such insurance is usually carried
by companies of established reputation and comparable size.
SECTION 5.4. TAXES AND CHARGES.
Duly pay and discharge, or cause to be paid and discharged, before
the same shall become delinquent, all federal, state or local taxes,
assessments, levies and other governmental charges, imposed upon the Borrower or
any of its Subsidiaries or their respective properties, sales and activities, or
any part thereof, or upon the income or profits therefrom, as well as all claims
for labor, materials, or supplies which if unpaid could reasonably be expected
to result in a Material Adverse Effect; PROVIDED that any such tax, assessment,
charge, levy or claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if the
Borrower shall have set aside on its books reserves (the presentation of which
is segregated to the extent required by GAAP) adequate with respect thereto if
reserves shall be deemed necessary by the Borrower in accordance with GAAP; and
PROVIDED, FURTHER, that the Borrower will pay all such taxes, assessments,
levies or other governmental charges forthwith upon the commencement of
proceedings to foreclose any Lien which may have attached as security therefor
(unless the same is fully bonded or otherwise effectively stayed).
SECTION 5.5. ERISA COMPLIANCE AND REPORTS.
Furnish to the Administrative Agent (a) as soon as possible, and in
any event within 30 days after any executive officer (as defined in Regulation C
under the Securities Act of 1933, as amended) of the Borrower knows that (i) any
Reportable Event with respect to any Plan has occurred, a statement of the chief
financial officer of the Borrower, setting forth details as to such Reportable
Event and the action which it proposes to take with respect thereto, together
with a copy of the notice, if any, required to be filed by the Borrower or any
of its Subsidiaries of such Reportable Event with the PBGC or (ii) an
accumulated funding deficiency has been incurred or an application has been made
to the Secretary of the Treasury for a waiver or modification of the minimum
funding standard or an extension of any amortization period under Section 412 of
the Code with respect to a Plan, a Plan has been or is proposed to be terminated
in a "distress termination" (as defined in Section 4041(c) of ERISA),
proceedings have been instituted to terminate a Plan or a Multiemployer Plan, a
proceeding has been instituted to collect a delinquent contribution to a Plan or
a Multiemployer Plan, or either the Borrower or any of its Subsidiaries will
incur any liability (including any contingent or secondary liability) to or on
account of the termination of or withdrawal from a Plan under Section 4062, 4063
or 4064 of ERISA or the withdrawal or partial withdrawal from a Multiemployer
Plan under Section 4201 or 4204 of ERISA, a statement of the chief financial
officer of the Borrower, setting forth details
42
as to such event and the action it proposes to take with respect thereto, (b)
promptly upon the reasonable request of the Administrative Agent, copies of each
annual and other report with respect to each Plan and (c) promptly after receipt
thereof, a copy of any notice the Borrower or any of its Subsidiaries may
receive from the PBGC relating to the PBGC's intention to terminate any Plan or
to appoint a trustee to administer any Plan; PROVIDED that the Borrower shall
not be required to notify the Administrative Agent of the occurrence of any of
the events set forth in the preceding clauses (a) and (c) unless such event,
individually or in the aggregate, could reasonably be expected to result in a
material liability to the Borrower and its Subsidiaries taken as a whole.
SECTION 5.6. MAINTENANCE OF AND ACCESS TO BOOKS AND RECORDS;
Examinations.
Maintain or cause to be maintained at all times true and complete
books and records of its financial operations (in accordance with GAAP) and,
after the occurrence and during the continuance of an Event of Default (at a
time during which Loans are outstanding), provide the Administrative Agent and
its representatives access to all such books and records and to any of their
properties or assets during regular business hours, in order that the
Administrative Agent may make such audits and examinations and make abstracts
from such books, accounts and records and may discuss the affairs, finances and
accounts with, and be advised as to the same by, officers and independent
accountants, all as the Administrative Agent may deem appropriate for the
purpose of verifying the various reports delivered pursuant to this Agreement or
for otherwise ascertaining compliance with this Agreement.
SECTION 5.7. MAINTENANCE OF PROPERTIES.
Keep its properties which are material to its business in good
repair, working order and condition consistent with companies of established
reputation and comparable size.
6. NEGATIVE COVENANTS
For so long as the Commitments shall be in effect or any amount
shall remain outstanding under any Note or unpaid under this Agreement, unless
the Required Lenders shall otherwise consent in writing, the Borrower agrees
that it will not, nor will it permit any of its Subsidiaries to, directly or
indirectly:
SECTION 6.1. LIMITATION ON MATERIAL SUBSIDIARY INDEBTEDNESS.
Incur, assume or suffer to exist any Indebtedness of any Material
Subsidiary which principally transacts business in the United States, except:
(a) Indebtedness in existence on the date hereof, or required to be
incurred pursuant to a contractual obligation in existence on the date hereof,
which in either case (to the extent not otherwise permitted by paragraphs
(b)-(h) of this Section 6.1), is listed on Schedule 6.1 hereto, but not any
extensions or renewals thereof, unless effected on substantially the same terms
or on terms not more adverse to the Lenders;
(b) purchase money Indebtedness (including Capital Leases) to the
extent permitted under Section 6.5(b);
43
(c) Indebtedness owing by any Material Subsidiary to the Borrower or
any other Subsidiary;
(d) Indebtedness of any Material Subsidiary of the Borrower issued
and outstanding prior to the date on which such Subsidiary became a Subsidiary
of the Borrower (other than Indebtedness issued in connection with, or in
anticipation of, such Subsidiary becoming a Subsidiary of the Borrower);
PROVIDED that immediately prior and on a Pro Forma Basis after giving effect to,
such Person becoming a Subsidiary of the Borrower, no Default or Event of
Default shall occur or then be continuing and the aggregate principal amount of
such Indebtedness, when added to the aggregate outstanding principal amount of
Indebtedness permitted by paragraphs (e) and (f) below, shall not exceed
$125,000,000;
(e) any renewal, extension or modification of Indebtedness under
paragraph (d) above so long (i) as such renewal, extension or modification is
effected on substantially the same terms or on terms which, in the aggregate,
are not more adverse to the Lenders and (ii) the principal amount of such
Indebtedness is not increased;
(f) other Indebtedness of any Material Subsidiary in an aggregate
principal amount which, when added to the aggregate outstanding principal amount
of Indebtedness permitted by paragraphs (d) and (e) above, does not exceed
$125,000,000;
(g) Indebtedness of Special Purpose Vehicle Subsidiaries incurred to
finance investment in lease agreements and vehicles by such Subsidiaries, so
long as the lender (and any other party) in respect of such Indebtedness has
recourse, if any, solely to the assets of such Special Purpose Vehicle
Subsidiary;
(h) Indebtedness of any Asset Securitization Subsidiary incurred
solely to finance asset securitization transactions as long as (i) such
Indebtedness is unsecured or is secured solely as permitted by Section 6.5(n),
and (ii) the lender (and any other party) in respect of such Indebtedness has
recourse (other than customary limited recourse based on misrepresentations or
failure of such assets to meet customary eligibility criteria), if any, solely
to the assets securitized in the applicable asset securitization transaction
and, if such Asset Securitization Subsidiary is of the type described in clause
(i) of the definition of "Asset Securitization Subsidiary", the capital stock of
such Asset Securitization Subsidiary;
(i) Indebtedness (other than Indebtedness of Asset Securitization
Subsidiaries incurred to finance asset securitization transactions permitted by
this Agreement) consisting of the obligation to repurchase mortgages and related
assets or secured by mortgages and related assets in connection with other
mortgage warehouse financing arrangements, if the aggregate principal amount of
all such Indebtedness does not exceed $900,000,000; and
(j) any Indebtedness of Avis Fleet or its Subsidiaries issued,
outstanding or permitted to exist pursuant to the terms of the Avis Debt
Documents as of the date of the Avis Fleet Transaction and any renewal,
extension or modification of such Indebtedness so long as (i) such renewal,
extension or modification is effected on substantially the same terms or on
terms which, in the aggregate, are not more adverse to the Lenders and (ii) the
principal amount of such Indebtedness issued, outstanding or permitted to exist
pursuant to the terms of the Avis Debt Documents is not increased directly or
indirectly.
44
SECTION 6.2. [INTENTIONALLY DELETED].
SECTION 6.3. LIMITATION ON TRANSACTIONS WITH AFFILIATES. Enter
into any transaction, including, without limitation, any purchase, sale, lease
or exchange of property or the rendering of any service, with any Affiliate
(other than the Borrower or a wholly-owned Subsidiary of the Borrower) unless
such transaction is (a) otherwise permitted under this Agreement and (b) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
SECTION 6.4. CONSOLIDATION, MERGER, SALE OF ASSETS.
(a) Neither the Borrower nor any of its Material Subsidiaries (in
one transaction or series of transactions) will wind up, liquidate or dissolve
its affairs, or enter into any transaction of merger or consolidation, except
any merger, consolidation, dissolution or liquidation (i) in which the Borrower
is the surviving entity or if the Borrower is not a party to such transaction
then a Subsidiary is the surviving entity, (ii) in which the surviving entity
becomes a Material Subsidiary of the Borrower immediately upon the effectiveness
of such merger, consolidation, dissolution or liquidation or (iii) in connection
with a transaction permitted by Section 6.4(b); PROVIDED that immediately prior
to and on a Pro Forma Basis after giving effect to such transaction no Default
or Event of Default has occurred or is continuing.
(b) (i) Sell or otherwise dispose of all or substantially all of the
assets of the Borrower and its Subsidiaries, taken as a whole; PROVIDED that it
is understood for purposes of clarity that this Section 6.4(b)(i) shall not
prohibit or limit in any respect transactions in the ordinary course of business
of the Borrower or any of its Subsidiaries (including but not limited to asset
securitization transactions or similar transactions entered into in the ordinary
course of business) or (ii) permit to occur a Significant Asset Sale Triggering
Event.
SECTION 6.5. LIMITATIONS ON LIENS.
Suffer any Lien on the property of the Borrower or any of the
Material Subsidiaries which principally transact business in the United States,
except:
(a) deposits under worker's compensation, unemployment insurance and
social security laws or to secure statutory obligations or surety or appeal
bonds or performance or other similar bonds in the ordinary course of business,
or statutory Liens of landlords, carriers, warehousemen, mechanics and
materialmen and other similar Liens, in respect of liabilities which are not yet
due or which are being contested in good faith, Liens for taxes not yet due and
payable, and Liens for taxes due and payable, the validity or amount of which is
currently being contested in good faith by appropriate proceedings and as to
which foreclosure and other enforcement proceedings shall not have been
commenced (unless fully bonded or otherwise effectively stayed);
(b) purchase money Liens granted to the vendor or Person financing
the acquisition of property, plant or equipment if (i) limited to the specific
assets acquired and, in the case of tangible assets, other property which is an
improvement to or is acquired for specific use in connection with such acquired
property or which is real property being improved by such acquired property;
(ii) the debt secured by such Lien is the unpaid balance of the acquisition cost
45
of the specific assets on which the Lien is granted; and (iii) such transaction
does not otherwise violate this Agreement;
(c) Liens upon real and/or personal property, which property was
acquired after the date of this Agreement (by purchase, construction or
otherwise) by the Borrower or any of its Material Subsidiaries, each of which
Liens existed on such property before the time of its acquisition and was not
created in anticipation thereof; PROVIDED that no such Lien shall extend to or
cover any property of the Borrower or such Material Subsidiary other than the
respective property so acquired and improvements thereon;
(d) Liens arising out of attachments, judgments or awards as to
which an appeal or other appropriate proceedings for contest or review are
promptly commenced (and as to which foreclosure and other enforcement
proceedings (i) shall not have been commenced (unless fully bonded or otherwise
effectively stayed) or (ii) in any event shall be promptly fully bonded or
otherwise effectively stayed);
(e) Liens created under any Fundamental Document as contemplated by
this Agreement;
(f) Liens securing Indebtedness of any Material Subsidiary to the
Borrower;
(g) Liens covering only the property or assets of any Special
Purpose Vehicle Subsidiary and securing only such Indebtedness of such Special
Purpose Vehicle Subsidiary as is permitted under Section 6.1(g) hereof;
(h) mortgage liens existing on homes acquired by the Borrower or any
of its Material Subsidiaries in the ordinary course of their relocation
management business;
(i) other Liens incidental to the conduct of its business or the
ownership of its property and other assets, which do not secure any Indebtedness
and did not otherwise arise in connection with the borrowing of money or the
obtaining of advances or credit and which do not, in the aggregate, materially
detract from the value of its property or other assets or materially impair the
use thereof in the operation of its business;
(j) Liens covering only the property or other assets of any
Subsidiary which principally transacts business outside of the United States;
(k) to the extent not otherwise permitted by this Section 6.5, Liens
existing on the Closing date listed on Schedule 6.5 hereto and any extensions or
renewals thereof;
(l) Liens securing indebtedness in respect of one or more asset
securitization transactions, which indebtedness is not reported on a
consolidated balance sheet of the Borrower and its Subsidiaries, covering only
the assets securitized in the asset securitization transaction financed by such
indebtedness and the capital stock of any special purpose vehicle the sole
purpose of which is to effectuate such asset securitization transaction;
(m) other Liens securing obligations having an aggregate principal
amount not to exceed $100,000,000;
46
(n) Liens securing Indebtedness and related obligations of an Asset
Securitization Subsidiary in respect of one or more asset securitization
transactions, which Indebtedness is reported on a consolidated balance sheet of
the Borrower and its Subsidiaries, covering only the assets securitized in the
asset securitization transaction financed by such Indebtedness and, if such
Asset Securitization Subsidiary is of the type described in clause (i) of the
definition of "Asset Securitization Subsidiary", the capital stock of such Asset
Securitization Subsidiary;
(o) Liens on mortgages and related assets securing obligations to
the extent such obligations are permitted by Section 6.1(i); and
(p) any Liens securing Indebtedness and related obligations of the
Borrower or any of the Material Subsidiaries that principally transact business
in the United States to the extent such Indebtedness and related obligations are
permitted under Section 6.1(j) hereof.
SECTION 6.6. SALE AND LEASEBACK.
Enter into any arrangement with any Person or Persons, whereby in
contemporaneous transactions the Borrower or any of its Subsidiaries sells
essentially all of its right, title and interest in a material asset and the
Borrower or any of its Subsidiaries acquires or leases back the right to use
such property except that the Borrower or any of its Subsidiaries may enter into
sale-leaseback transactions relating to assets not in excess of $100,000,000 in
the aggregate on a cumulative basis, and except (a) any arrangements of Avis
Fleet or any of its Subsidiaries (other than the LEAF Trust Transaction)
existing as of the date of the Avis Fleet Transaction and any renewals,
extensions or modifications thereof so long as such renewals, extensions or
modifications are effected on substantially the same terms or on terms which, in
the aggregate, are not more adverse to the Lenders in any material respect; (b)
the LEAF Trust Transaction; and (c) without limiting either of the foregoing
clauses (a) and (b), any sale-leaseback transaction entered into in connection
with an asset securitization transaction the indebtedness or Indebtedness
relating to which is permitted to be secured pursuant to Section 6.5(l) or
6.5(n).
SECTION 6.7. CONSOLIDATED NET WORTH.
Permit Consolidated Net Worth on the last day of any fiscal quarter
to be less than the sum of (i) $1,250,000,000 PLUS (ii) 25% of Consolidated Net
Income, if positive, for each fiscal quarter after December 31, 2001.
SECTION 6.8. RATIO OF INDEBTEDNESS TO CONSOLIDATED NET WORTH.
Permit, at any time, Indebtedness of the Borrower and its
Subsidiaries less Cash Equivalents (owned by the Borrower or any of its
Subsidiaries and free of Liens (other than Liens securing Indebtedness)) to
exceed eight (8) times Consolidated Net Worth.
SECTION 6.9. ACCOUNTING PRACTICES.
Establish a fiscal year ending on other than December 31, or modify
or change accounting treatments or reporting practices except as otherwise
required or permitted by GAAP.
47
SECTION 6.10. RESTRICTIONS AFFECTING SUBSIDIARIES.
Enter into, or suffer to exist, any Contractual Obligation with any
Person, which prohibits or limits the ability of any Material Subsidiary (other
than Special Purpose Vehicle Subsidiaries and Asset Securitization Subsidiaries)
to (a) pay dividends or make other distributions or pay any Indebtedness owed to
the Borrower or any other Subsidiary, (b) make loans or advances to the Borrower
or any other Subsidiary or (c) transfer any of its properties or assets to the
Borrower or any other Subsidiary, except in each case any Contractual Obligation
of Avis Fleet or any of its Subsidiaries (other than Asset Securitization
Subsidiaries or Special Purpose Vehicle Subsidiaries) existing as of the date of
the Avis Fleet Transaction and any renewals, extensions or modifications thereof
so long as such renewals, extensions or modifications are effected on
substantially the same terms or on terms which, in the aggregate, are not more
adverse to the Lenders in any material respect.
7. EVENTS OF DEFAULT
In the case of the happening and during the continuance of any of
the following events (herein called "EVENTS OF DEFAULT"):
(a) any representation or warranty made or deemed made by the
Borrower in this Agreement or any other Fundamental Document or in connection
with this Agreement or with the execution and delivery of the Notes or the
Borrowings hereunder, or any statement or representation made in any report,
financial statement, certificate or other document furnished by or on behalf of
the Borrower or any of its Subsidiaries to the Administrative Agent or any
Lender under or in connection with this Agreement, shall prove to have been
false or misleading in any material respect when made or delivered;
(b) default shall be made in the payment of any principal of or
interest on any Loan or of any fees or other amounts payable by the Borrower
hereunder, when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise, and in the case of payments of interest, such default
shall continue unremedied for five Business Days, and in the case of payments
other than of any principal amount of or interest on any Loan, such default
shall continue unremedied for five Business Days after receipt by the Borrower
of an invoice therefor;
(c) default shall be made in the due observance or performance of
any covenant, condition or agreement contained in Section 5.1(c) (with respect
to notice of Default or Events of Default) or Article 6;
(d) default shall be made by the Borrower in the due observance or
performance of any other covenant, condition or agreement to be observed or
performed pursuant to the terms of this Agreement or any other Fundamental
Document and such default shall continue unremedied for thirty (30) days after
the Borrower obtains knowledge of such occurrence;
(e) (i) default in payment shall be made with respect to any
Indebtedness or Interest Rate Protection Agreements of the Borrower or any of
its Subsidiaries where the amount or amounts of such Indebtedness exceeds
$25,000,000 (or its equivalent thereof in any other currency) in the aggregate;
or (ii) default in payment or performance shall be made with respect to any
Indebtedness or Interest Rate Protection Agreements of the Borrower or any of
its
48
Subsidiaries where the amount or amounts of such Indebtedness or Interest Rate
Protection Agreements exceeds $25,000,000 (or its equivalent thereof in any
other currency) in the aggregate, if the effect of such default is to result in
the acceleration of the maturity of such Indebtedness or Interest Rate
Protection Agreement; or (iii) any other circumstance shall arise (other than
the mere passage of time) by reason of which the Borrower or any Subsidiary of
the Borrower is required to redeem or repurchase, or offer to holders the
opportunity to have redeemed or repurchased, any such Indebtedness or Interest
Rate Protection Agreement where the amount or amounts of such Indebtedness or
Interest Rate Protection Agreement exceeds $25,000,000 (or its equivalent
thereof in any other currency) in the aggregate; PROVIDED that clause (iii)
shall not apply to secured Indebtedness or Interest Rate Protection Agreement
that becomes due as a result of a voluntary sale of the property or assets
securing such Indebtedness or Interest Rate Protection Agreement and PROVIDED,
FURTHER, that clauses (ii) and (iii) shall not apply to any Indebtedness or
Interest Rate Protection Agreement of any Subsidiary issued and outstanding
prior to the date such Subsidiary became a Subsidiary of the Borrower (other
than Indebtedness or Interest Rate Protection Agreement issued in connection
with, or in anticipation of, such Subsidiary becoming a Subsidiary of the
Borrower) if such default or circumstance arises solely as a result of a "change
of control" provision applicable to such Indebtedness or Interest Rate
Protection Agreement which becomes operative as a result of the acquisition of
such Subsidiary by the Borrower or any of its Subsidiaries;
(f) the Borrower or any of its Material Subsidiaries shall generally
not pay its debts as they become due or shall admit in writing its inability to
pay its debts, or shall make a general assignment for the benefit of creditors;
or the Borrower or any of its Material Subsidiaries shall commence any case,
proceeding or other action seeking to have an order for relief entered on its
behalf as debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition
of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property or shall file an answer or other pleading in
any such case, proceeding or other action admitting the material allegations of
any petition, complaint or similar pleading filed against it or consenting to
the relief sought therein; or the Borrower or any Material Subsidiary thereof
shall take any action to authorize any of the foregoing;
(g) any involuntary case, proceeding or other action against the
Borrower or any of its Material Subsidiaries shall be commenced seeking to have
an order for relief entered against it as debtor or to adjudicate it a bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property, and such case, proceeding or
other action (i) results in the entry of any order for relief against it or (ii)
shall remain undismissed for a period of sixty (60) days;
(h) the occurrence of a Change in Control;
(i) final judgment(s) for the payment of money in excess of
$25,000,000 (or its equivalent thereof in any other currency) shall be rendered
against the Borrower or any of its Subsidiaries which within thirty (30) days
from the entry of such judgment shall not have been
49
discharged or stayed pending appeal or which shall not have been discharged
within thirty (30) days from the entry of a final order of affirmance on appeal;
or
(j) a Reportable Event relating to a failure to meet minimum funding
standards or an inability to pay benefits when due shall have occurred with
respect to any Plan under the control of the Borrower or any of its Subsidiaries
and shall not have been remedied within 45 days after the occurrence of such
Reportable Event, if the occurrence thereof could reasonably be expected to have
a Material Adverse Effect;
then, in every such event and at any time thereafter during the continuance of
such event, the Administrative Agent may or, if directed by the Required
Lenders, shall take either or both of the following actions, at the same or
different times: terminate forthwith the Commitments and/or declare the
principal of and the interest on the Loans and the Notes and all other amounts
payable hereunder or thereunder to be forthwith due and payable, whereupon the
same shall become and be forthwith due and payable, without presentment, demand,
protest, notice of acceleration, notice of intent to accelerate or other notice
of any kind, all of which are hereby expressly waived, anything in this
Agreement or in the Notes to the contrary notwithstanding; PROVIDED that, in the
case of a payment of principal default pursuant to paragraph (b), the
Administrative Agent, unless it is directed to do so by the Required Lenders,
will not take either or both of such actions for three Business Days. If an
Event of Default specified in paragraph (f) or (g) above shall have occurred,
the principal of and interest on the Loans and the Notes and all other amounts
payable hereunder or thereunder shall thereupon and concurrently become due and
payable without presentment, demand, protest, notice of acceleration, notice of
intent to accelerate or other notice of any kind, all of which are hereby
expressly waived, anything in this Agreement or the Notes to the contrary
notwithstanding and the Commitments of the Lenders shall thereupon forthwith
terminate.
8. THE ADMINISTRATIVE AGENT
SECTION 8.1. ADMINISTRATION BY ADMINISTRATIVE AGENT.
The general administration of the Fundamental Documents and any
other documents contemplated by this Agreement shall be by the Administrative
Agent or their designees as provided for herein. Each of the Lenders hereby
irrevocably authorizes the Administrative Agent, at its discretion, to take or
refrain from taking such actions as agent on its behalf and to exercise or
refrain from exercising such powers under the Fundamental Documents, the Notes
and any other documents contemplated by this Agreement as are delegated by the
terms hereof or thereof, as appropriate, together with all powers reasonably
incidental thereto. The Administrative Agent shall have no duties or
responsibilities except as set forth in the Fundamental Documents. Any Lender
which is a co-agent or lead manager (as indicated on Schedule 1.1A hereto) for
the credit facility hereunder shall not have any duties or responsibilities
except as a Lender hereunder.
SECTION 8.2. ADVANCES AND PAYMENTS.
(a) On the date of each Loan, the Administrative Agent shall be
authorized (but not obligated) to advance, for the account of each of the
applicable Lenders, the amount of the Loan to be made by it in accordance with
this Agreement. Each of the Lenders hereby authorizes and requests the
Administrative Agent to advance for its account, pursuant to the
50
terms hereof, the amount of the Loan to be made by it, unless with respect to
any Lender, such Lender has theretofore specifically notified the Administrative
Agent that such Lender does not intend to fund that particular Loan. Each of the
Lenders agrees forthwith to reimburse the Administrative Agent in immediately
available funds for the amount so advanced on its behalf by the Administrative
Agent pursuant to the immediately preceding sentence. If any such reimbursement
is not made in immediately available funds on the same day on which the
Administrative Agent shall have made any such amount available on behalf of any
Lender in accordance with this Section 8.2, such Lender shall pay interest to
the Administrative Agent at a rate per annum equal to the Administrative Agent's
cost of obtaining overnight funds in the New York Federal Funds Market.
Notwithstanding the preceding sentence, if such reimbursement is not made by the
second Business Day following the day on which the Administrative Agent shall
have made any such amount available on behalf of any Lender or such Lender has
indicated that it does not intend to reimburse the Administrative Agent, the
Borrower shall immediately pay such unreimbursed advance amount (plus any
accrued, but unpaid interest at the rate per annum equal to the interest rate
applicable to such Loan) to the Administrative Agent.
(b) Any amounts received by the Administrative Agent in connection
with this Agreement or the Loans the application of which is not otherwise
provided for shall be applied, in accordance with each of the Lenders' pro rata
interest therein, FIRST, to pay accrued but unpaid Facility Fees and Utilization
Fees, SECOND, to pay accrued but unpaid interest on the Loans, THIRD, to pay the
principal balance outstanding on the Loans and FOURTH, to pay other amounts
payable to the Administrative Agent and/or the Lenders. All amounts to be paid
to any of the Lenders by the Administrative Agent shall be credited to the
applicable Lenders, after collection by the Administrative Agent, in immediately
available funds either by wire transfer or deposit in such Lender's
correspondent account with the Administrative Agent, or as such Lender and the
Administrative Agent shall from time to time agree.
SECTION 8.3. SHARING OF SETOFFS AND CASH COLLATERAL.
Each of the Lenders agrees that if it shall, through the operation
of Section 2.19 or the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower, including, but not limited to, a secured
claim under Section 506 of Title 11 of the United States Code or other security
or interest arising from, or in lieu of, such secured claim and received by such
Lender under any applicable bankruptcy, insolvency or other similar law, or
otherwise (other than pursuant to Section 2.15(f)), obtain payment in respect of
its Loans as a result of which the unpaid portion of its Loans is
proportionately less than the unpaid portion of any of the other Lenders (a) it
shall promptly purchase at par (and shall be deemed to have thereupon purchased)
from such other Lenders a participation in the Loans of such other Lenders, so
that the aggregate unpaid principal amount of each of the Lenders' Loans and its
participation in Loans of the other Lenders shall be in the same proportion to
the aggregate unpaid principal amount of all Loans then outstanding as the
principal amount of its Loans prior to the obtaining of such payment was to the
principal amount of all Loans outstanding prior to the obtaining of such payment
and (b) such other adjustments shall be made from time to time as shall be
equitable to ensure that the Lenders share such payment pro rata.
51
SECTION 8.4. NOTICE TO THE LENDERS.
Upon receipt by the Administrative Agent from the Borrower of any
communication calling for an action on the part of the Lenders, or upon notice
to the Administrative Agent of any Event of Default, the Administrative Agent
will in turn immediately inform the other Lenders in writing (which shall
include telegraphic communications) of the nature of such communication or of
the Event of Default, as the case may be.
SECTION 8.5. LIABILITY OF THE ADMINISTRATIVE AGENT.
(a) The Administrative Agent, when acting on behalf of the Lenders
may execute any of its duties under this Agreement by or through its officers,
agents, or employees and neither the Administrative Agent nor its respective
directors, officers, agents, or employees shall be liable to the Lenders or any
of them for any action taken or omitted to be taken in good faith, or be
responsible to the Lenders or to any of them for the consequences of any
oversight or error of judgment, or for any loss, unless the same shall happen
through its gross negligence or willful misconduct. Neither the Administrative
Agent nor its respective directors, officers, agents, and employees shall in any
event be liable to the Lenders or to any of them for any action taken or omitted
to be taken by it pursuant to instructions received by it from the Required
Lenders or in reliance upon the advice of counsel selected by it. Without
limiting the foregoing, neither the Administrative Agent nor any of its
respective directors, officers, employees, or agents shall be responsible to any
of the Lenders for the due execution (other than its own), validity,
genuineness, effectiveness, sufficiency, or enforceability of, or for any
statement, warranty, or representation made by any other Person in, or for the
perfection of any security interest contemplated by, this Agreement or any
related agreement, document or order, or for the designation or failure to
designate this transaction as a "Highly Leveraged Transaction" for regulatory
purposes, or shall be required to ascertain or to make any inquiry concerning
the performance or observance by the Borrower of any of the terms, conditions,
covenants, or agreements of this Agreement or any related agreement or document.
(b) Neither the Administrative Agent nor any of its respective
directors, officers, employees, or agents shall have any responsibility to the
Borrower on account of the failure or delay in performance or breach by any of
the Lenders or the Borrower of any of their respective obligations under this
Agreement or the Notes or any related agreement or document or in connection
herewith or therewith.
(c) The Administrative Agent in such capacities hereunder, shall be
entitled to rely on any communication, instrument, or document reasonably
believed by it to be genuine or correct and to have been signed or sent by a
Person or Persons believed by it to be the proper Person or Persons, and it
shall be entitled to rely on advice of legal counsel, independent public
accountants, and other professional advisers and experts selected by it.
SECTION 8.6. REIMBURSEMENT AND INDEMNIFICATION.
Each of the Lenders severally and not jointly agrees (i) to
reimburse the Administrative Agent and the Lead Arranger, in the amount of its
proportionate share, for any reasonable expenses and fees incurred for the
benefit of the Lenders under the Fundamental Documents, including, without
limitation, reasonable counsel fees and compensation of agents and employees
paid for services rendered on behalf of the Lenders, and any other reasonable
52
expense incurred in connection with the administration or enforcement thereof
not reimbursed by the Borrower or one of its Subsidiaries; and (ii) to indemnify
and hold harmless the Administrative Agent and the Lead Arranger and any of
their directors, officers, employees, or agents, on demand, in the amount of its
proportionate share, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against it or any of them in any way relating to or arising out
of the Fundamental Documents or any action taken or omitted by it or any of them
under the Fundamental Documents to the extent not reimbursed by the Borrower or
one of its Subsidiaries (except such as shall result from the gross negligence
or willful misconduct of the Person seeking indemnification).
SECTION 8.7. RIGHTS OF ADMINISTRATIVE AGENT.
It is understood and agreed that JPMorgan Chase Bank shall have the
same rights and powers hereunder (including the right to give such instructions)
as the other Lenders and may exercise such rights and powers, as well as its
rights and powers under other agreements and instruments to which it is or may
be party, and engage in other transactions with the Borrower as though it were
not an Administrative Agent on behalf of the Lenders under this Agreement.
SECTION 8.8. INDEPENDENT INVESTIGATION BY LENDERS.
Each of the Lenders acknowledges that it has decided to enter into
this Agreement and to make the Loans hereunder based on its own analysis of the
transactions contemplated hereby and of the creditworthiness of the Borrower and
agrees that the Administrative Agent shall not bear responsibility therefor.
SECTION 8.9. NOTICE OF TRANSFER.
The Administrative Agent may deem and treat any Lender which is a
party to this Agreement as the owners of such Lender's respective portions of
the Loans for all purposes, unless and until a written notice of the assignment
or transfer thereof executed by any such Lender shall have been received by the
Administrative Agent and become effective pursuant to Section 9.3.
SECTION 8.10. SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent from among the Lenders, with the consent of the Borrower, which will not
be unreasonably withheld. If no successor Administrative Agent shall have been
so appointed by the Required Lenders and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation, the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which with the consent of the
Borrower, which will not be unreasonably withheld, shall be a commercial bank
organized or licensed under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $500,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with
53
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Article 8
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
9. MISCELLANEOUS
SECTION 9.1. NOTICES.
Notices and other communications provided for herein shall be in
writing and shall be delivered or mailed (or in the case of telegraphic
communication, if by telegram, delivered to the telegraph company and, if by
telex, telecopy, graphic scanning or other telegraphic communications equipment
of the sending party hereto, delivered by such equipment) addressed, if to the
Administrative Agent or JPMorgan Chase Bank, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, if
to the Borrower, to it at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Assistant Treasurer, with a copy to the General Counsel, or if to a
Lender, to it at its address set forth on Schedule 1.1A (or in its Assignment
and Acceptance or other agreement pursuant to which it became a Lender
hereunder), or such other address as such party may from time to time designate
by giving written notice to the other parties hereunder. All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the fifth Business Day
after the date when sent by registered or certified mail, postage prepaid,
return receipt requested, if by mail, or when delivered to the telegraph
company, charges prepaid, if by telegram, or when receipt is acknowledged, if by
any telecopier or telegraphic communications equipment of the sender, in each
case addressed to such party as provided in this Section 9.1 or in accordance
with the latest unrevoked written direction from such party.
SECTION 9.2. SURVIVAL OF AGREEMENT, REPRESENTATIONS AND
WARRANTIES, etc.
All warranties, representations and covenants made by the Borrower
herein or in any certificate or other instrument delivered by it or on its
behalf in connection with this Agreement shall be considered to have been relied
upon by the Administrative Agent and the Lenders and shall survive the making of
the Loans herein contemplated and the issuance and delivery to the
Administrative Agent of the Notes regardless of any investigation made by the
Administrative Agent or the Lenders or on their behalf and shall continue in
full force and effect so long as any amount due or to become due hereunder is
outstanding and unpaid and so long as the Commitments have not been terminated.
All statements in any such certificate or other instrument shall constitute
representations and warranties by the Borrower hereunder.
SECTION 9.3. SUCCESSORS AND ASSIGNS; SYNDICATIONS; LOAN SALES;
PARTICIPATIONS.
(a) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and assigns of such
party (PROVIDED that the Borrower may not assign its respective rights hereunder
without the prior written consent of all the Lenders), and all covenants,
promises and agreements by, or on behalf of, the Borrower
54
which are contained in this Agreement shall inure to the benefit of the
successors and assigns of the Lenders.
(b) Each of the Lenders may (but only with the prior written consent
of the Administrative Agent and the Borrower, which consents shall not be
unreasonably withheld or delayed) assign to one or more banks or other financial
institutions either (i) all or a portion of its interests, rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the same portion of the Loans at the time owing to
it and the Notes held by it) (a "RATABLE ASSIGNMENT") or (ii) all or a portion
of its rights and obligations under and in respect of (A) its Commitment under
this Agreement and the same portion of the Loans (other than Competitive Loans)
at the time owing to it or (B) the Competitive Loans at the time owing to it
(including, without limitation, in the case of any such type of Loan, the same
portion of the associated Note) (a "NON-RATABLE ASSIGNMENT"); PROVIDED that (1)
each Non-Ratable Assignment shall be of a constant, and not a varying,
percentage of all of the assigning Lender's rights and obligations in respect of
the Loans and the Commitment (if applicable) which are the subject of such
assignment, (2) each Ratable Assignment shall be of a constant, and not a
varying, percentage of the assigning Lender's rights and obligations under this
Agreement, (3) the amount of the Commitment or Competitive Loans, as the case
may be, of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Lender) shall be in a minimum Dollar Equivalent Amount of
$10,000,000 unless such assignment is an assignment of all of the assigning
Lender's rights and obligations under this Agreement or unless otherwise agreed
by the Borrower and the Administrative Agent and (4) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register (as defined below), an Assignment and
Acceptance, together with any Note or Notes subject to such assignment (if
required hereunder) and a processing and recordation fee of $3,500. Upon such
execution, delivery, acceptance and recording, and from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
not earlier than five Business Days after the date of acceptance and recording
by the Administrative Agent, (x) the assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (y) the assigning Lender thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of the assigning Lender's
rights and obligations under this Agreement, such assigning Lender shall cease
to be a party hereto, but shall continue to be entitled to the indemnity and
expense reimbursement provisions for the period prior to such Assignment and
Acceptance).
(c) Notwithstanding the other provisions of this Section 9.3, each
Lender may at any time make an assignment of all or any part of its interests,
rights and obligations under this Agreement to (i) any Affiliate of such Lender
or (ii) any other Lender hereunder.
(d) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, the
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in, or in connection with, this
55
Agreement and any other Fundamental Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Fundamental
Documents or any other instrument or document furnished pursuant hereto or
thereto; (ii) such Lender assignor makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Fundamental Documents; (iii) such assignee confirms that
it has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Sections 5.1(a) and 5.1(b) (or
if none of such financial statements shall have then been delivered, then copies
of the financial statements referred to in Section 3.4) and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the assigning Lender, the Administrative
Agent, or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee appoints and
authorizes the Administrative Agent, to take such action as agent on its behalf
and to exercise such powers under the Fundamental Documents as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that it will be
bound by the provisions of this Agreement and will perform in accordance with
its terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(e) The Administrative Agent, on behalf of the Borrower, shall
maintain at its address at which notices are to be given to it pursuant to
Section 9.1, a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time (the "REGISTER"). The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders may (and, in the case of any Loan or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Fundamental Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, any Notes subject to such assignment (if
required hereunder) and the processing and recordation fee, the Administrative
Agent (subject to the right, if any, of the Borrower to require its consent
thereto) shall, if such Assignment and Acceptance has been completed and is in
the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
written notice thereof to the Borrower. If a portion of its Commitment has been
assigned by an assigning Lender, then such Lender shall deliver its Note in
respect of such Commitment, if any, at the same time it delivers the applicable
Assignment and Acceptance to the Administrative Agent. If only Competitive Loans
have been assigned by the assigning Lender, such Lender shall not be required to
deliver its Competitive Note to the Administrative Agent, unless such Lender no
longer holds a Commitment under this Agreement, in which event such assigning
Lender shall
56
deliver its Competitive Note, if any, at the same time it delivers the
applicable Assignment and Acceptance to the Administrative Agent. Within five
Business Days after receipt of the notice, the Borrower, at its own expense,
shall execute and deliver to the applicable Lenders at their request, either (A)
a new Note in respect of the assigned Commitment to the order of such assignee
in an amount equal to the Commitment assumed by it pursuant to such Assignment
and Acceptance and a Competitive Note to the order of such assignee in an amount
equal to the Total Commitment hereunder, and a new Note in respect of the
assigned Commitment to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder, or (B) if Competitive Loans only have
been assigned and the assigning Lender holds a Commitment under this Agreement,
then a new Competitive Note to the order of the assignee Lender in an amount
equal to the outstanding principal amount of the Competitive Loan(s) purchased
by it pursuant to the Assignment and Acceptance, or (C) if Competitive Loans
only have been assigned and the assigning Lender does not hold a Commitment
under this Agreement, a new Competitive Note to the order of such assignee in an
amount equal to the outstanding principal amount of the Competitive Loans(s)
purchased by it pursuant to such Assignment and Acceptance and, a new
Competitive Note to the order of the assigning Lender in an amount equal to the
outstanding principal amount of the Competitive Loans retained by it hereunder.
Any new Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of the Commitments of the respective Lenders. All new Notes
shall be dated the date hereof and shall otherwise be in substantially the forms
of Exhibits A-1, and A-2 hereto, as the case may be.
(g) Each of the Lenders may without the consent of the Borrower or
the Administrative Agent sell participations to one or more banks or other
financial institutions (a "PARTICIPANT") in all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the Loans owing to it and the Note or Notes held
by it); PROVIDED that (i) any such Lender's obligations under this Agreement
shall remain unchanged, (ii) such participant shall not be granted any voting
rights under this Agreement, except with respect to matters requiring the
consent of each of the Lenders hereunder, (iii) any such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iv) the participating banks or other entities shall be entitled to
the cost protection provisions contained in Sections 2.14, 2.15 and 2.17 hereof
but a participant shall not be entitled to receive pursuant to such provisions
an amount larger than its share of the amount to which the Lender granting such
participation would have been entitled to receive, and (v) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
(h) The Lenders may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.3, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to the
Administrative Agent or the Lenders by or on behalf of the Borrower.
(i) Each Lender hereby represents that it is a commercial lender or
financial institution which makes loans in the ordinary course of its business
and that it will make the Loans hereunder for its own account in the ordinary
course of such business; PROVIDED that, subject to preceding clauses (a) through
(h), the disposition of the Notes or other evidence of Indebtedness held by that
Lender shall at all times be within its exclusive control.
57
(j) The Borrower consents that any Lender may at any time and from
time to time pledge, or otherwise grant a security interest in, any Loan or any
Note evidencing such Loan (or any part thereof), including any such pledge or
grant to any Federal Reserve Bank, and this Section shall not apply to any such
pledge or grant; PROVIDED that no such pledge or grant shall release a Lender
from any of its obligations hereunder or substitute any such assignee for such
Lender as a party hereto.
SECTION 9.4. EXPENSES; DOCUMENTARY TAXES.
Whether or not the transactions hereby contemplated shall be
consummated, the Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent and the Lead Arranger in connection with
the syndication, preparation, execution, delivery and administration of this
Agreement, the Notes, and the making of the Loans including but not limited to
the reasonable fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to
the Administrative Agent, as well as all reasonable out-of-pocket expenses
incurred by the Lenders and the Administrative Agent in connection with any
restructuring or workout of this Agreement, or the Notes or in connection with
the enforcement or protection of the rights of the Lenders and the
Administrative Agent in connection with this Agreement or the Notes or any other
Fundamental Document, and with respect to any action which may be instituted by
any Person against any Lender or the Administrative Agent in respect of the
foregoing, or as a result of any transaction, action or nonaction arising from
the foregoing, including but not limited to the fees and disbursements of any
counsel for the Lenders. Such payments shall be made on the date of execution of
this Agreement and thereafter promptly on demand. The Borrower agrees that it
shall indemnify the Administrative Agent and the Lenders from, and hold them
harmless against, any documentary taxes, assessments or charges made by any
Governmental Authority by reason of the execution and delivery of this Agreement
or the Notes or any other Fundamental Document. The obligations of the Borrower
under this Section shall survive the termination of this Agreement and/or the
payment of the Loans for two years.
SECTION 9.5. INDEMNITY.
Further, by the execution hereof, the Borrower agrees to indemnify
and hold harmless the Administrative Agent, the Lead Arranger and the Lenders
and their respective directors, officers, employees and agents (each, an
"INDEMNIFIED PARTY") from and against any and all expenses (including reasonable
fees and disbursements of counsel), losses, claims, damages and liabilities
arising out of any claim, litigation, investigation or proceeding (regardless of
whether any such Indemnified Party is a party thereto) in any way relating to
the transactions contemplated hereby, but excluding therefrom all expenses,
losses, claims, damages, and liabilities arising out of or resulting from the
gross negligence or willful misconduct of the Indemnified Party seeking
indemnification, PROVIDED that the Borrower shall not be liable for the fees and
expenses of more than one separate firm for all such Indemnified Parties in
connection with any one such action or any separate but substantially similar or
related actions in the same jurisdiction, nor shall the Borrower be liable for
any settlement of any proceeding effected without the Borrower's written
consent, and PROVIDED, FURTHER, that this Section 9.5 shall not be construed to
expand the scope of the reimbursement obligations specified in Section 9.4. The
obligations of the Borrower under this Section 9.5 shall survive the termination
of this Agreement and/or payment of the Loans.
58
SECTION 9.6. CHOICE OF LAW.
THIS AGREEMENT AND THE NOTES HAVE BEEN EXECUTED AND DELIVERED IN THE
STATE OF NEW YORK AND SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH, AND
GOVERNED BY, THE LAWS OF SUCH STATE APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WHOLLY WITHIN SUCH STATE AND, IN THE CASE OF PROVISIONS RELATING TO
INTEREST RATES, ANY APPLICABLE LAWS OF THE UNITED STATES.
SECTION 9.7. NO WAIVER.
No failure on the part of the Administrative Agent or any Lender to
exercise, and no delay in exercising, any right, power or remedy hereunder or
under the Notes shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law.
SECTION 9.8. EXTENSION OF MATURITY.
Except as otherwise specifically provided in Article 7, should any
payment of principal of or interest on the Notes or any other amount due
hereunder become due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day and, in
the case of principal, interest shall be payable thereon at the rate herein
specified during such extension.
SECTION 9.9. AMENDMENTS, ETC..
No modification, amendment or waiver of any provision of this
Agreement or any other Fundamental Document, and no consent to any departure by
the Borrower herefrom or therefrom, shall in any event be effective unless the
same shall be in writing and signed or consented to in writing by the Required
Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given; PROVIDED that no such modification
or amendment shall without the written consent of each Lender affected thereby
(x) increase the Commitment of a Lender or postpone or waive any scheduled
reduction in the Commitments, (y) alter the stated maturity or principal amount
of any installment of any Loan, or decrease the rate of interest payable
thereon, or the rate at which the Facility Fees or Utilization Fees are paid or
(z) waive a default under Section 7(b) with respect to a scheduled principal
installment of any Loan or scheduled payment of interest or fees; PROVIDED,
FURTHER, that no such modification or amendment shall without the written
consent of all of the Lenders (i) amend or modify any provision of this
Agreement which provides for the unanimous consent or approval of the Lenders or
(ii) amend this Section 9.9 or the definition of Required Lenders or
Supermajority Lenders. No such amendment or modification may adversely affect
the rights and obligations of the Administrative Agent hereunder without its
prior written consent. No notice to or demand on the Borrower shall entitle the
Borrower to any other or further notice or demand in the same, similar or other
circumstances. Each holder of a Note shall be bound by any amendment,
modification, waiver or consent authorized as provided herein, whether or not a
Note shall have been marked to indicate such amendment, modification, waiver or
consent and
59
any consent by any holder of a Note shall bind any Person subsequently acquiring
a Note, whether or not a Note is so marked.
SECTION 9.10. SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 9.11. SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
(a) THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
THE STATE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT
OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF BROUGHT BY THE
ADMINISTRATIVE AGENT OR A LENDER. THE BORROWER TO THE EXTENT PERMITTED BY
APPLICABLE LAW (A) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS
A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH
COURTS, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR
EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT,
AND (B) HEREBY WAIVES THE RIGHT TO ASSERT IN ANY SUCH ACTION, SUIT OR PROCEEDING
ANY OFFSETS OR COUNTERCLAIMS EXCEPT COUNTERCLAIMS THAT ARE COMPULSORY OR
OTHERWISE ARISE FROM THE SAME SUBJECT MATTER. THE BORROWER HEREBY CONSENTS TO
SERVICE OF PROCESS BY MAIL AT ITS ADDRESS TO WHICH NOTICES ARE TO BE GIVEN
PURSUANT TO SECTION 9.1. THE BORROWER AGREES THAT ITS SUBMISSION TO JURISDICTION
AND CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE FOR THE EXPRESS BENEFIT OF THE
ADMINISTRATIVE AGENT AND THE LENDERS. FINAL JUDGMENT AGAINST THE BORROWER IN ANY
SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY
OTHER JURISDICTION (A) BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, A
CERTIFIED OR TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND THE
AMOUNT OF INDEBTEDNESS OR LIABILITY OF THE SUBMITTING PARTY THEREIN DESCRIBED OR
(B) IN ANY OTHER MANNER PROVIDED BY, OR PURSUANT TO, THE LAWS OF SUCH OTHER
JURISDICTION, PROVIDED THAT THE ADMINISTRATIVE AGENT OR A LENDER MAY AT ITS
OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL PROCEEDINGS AGAINST THE BORROWER
OR ANY OF ITS ASSETS IN ANY ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ OR OF
ANY COUNTRY OR PLACE WHERE THE BORROWER OR SUCH ASSETS MAY BE FOUND.
60
(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE
WAIVED, EACH PARTY HERETO HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN
ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION
ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR
TORT OR OTHERWISE. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT
THE PROVISIONS OF THIS SECTION 9.11(b) CONSTITUTE A MATERIAL INDUCEMENT UPON
WHICH THE OTHER PARTIES HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO
THIS AGREEMENT. THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION 9.11(b) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF SUCH
OTHER PARTY TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
SECTION 9.12. HEADINGS.
Section headings used herein are for convenience only and are not to
affect the construction of or be taken into consideration in interpreting this
Agreement.
SECTION 9.13. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each
of which shall constitute an original, but all of which taken together shall
constitute one and the same instrument.
SECTION 9.14. ENTIRE AGREEMENT.
This Agreement represents the entire agreement of the parties with
regard to the subject matter hereof and the terms of any letters and other
documentation entered into among the Borrower, the Administrative Agent or any
Lender (other than the provisions of the letter agreement dated February 21,
2002, among the Borrower, JPMorgan Chase Bank and ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
relating to fees and expenses and syndication issues) prior to the execution of
this Agreement which relate to Loans to be made shall be replaced by the terms
of this Agreement.
SECTION 9.15. FOREIGN CURRENCY JUDGMENTS. (a) If, for the purpose
of obtaining judgment in any court, it is necessary to convert a sum due
hereunder in one currency into another currency, the Borrower agrees, to the
fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the relevant Lender (or agent acting on its behalf) or the
Administrative Agent could purchase the first currency with such other currency
for the first currency on the Business Day immediately preceding the day on
which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due
hereunder shall, notwithstanding any judgment in a currency (the "JUDGMENT
CURRENCY") other than that in which such sum is denominated in accordance with
this Agreement (the "AGREEMENT CURRENCY"), be discharged only to the extent
that, on the Business Day following receipt by any Lender (or agent
61
acting on its behalf) (the "APPLICABLE CREDITOR") of any sum adjudged to be so
due in the Judgment Currency, the Applicable Creditor may in accordance with
normal banking procedures in the relevant jurisdiction purchase the Agreement
Currency with the Judgment Currency; if the amount of the Agreement Currency so
purchased is less than the sum originally due to the Applicable Creditor in the
Agreement Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable Creditor against
such loss, PROVIDED, that if the amount of the Agreement Currency so purchased
exceeds the sum originally due to the Applicable Creditor, the Applicable
Creditor agrees to remit such excess to the Borrower. The obligations of the
Borrower contained in this Section 9.15 shall survive the termination of this
Agreement and the payment of all amounts owing hereunder. Each Borrower shall
repay each Loan made to it, and interest thereon, in the Currency in which such
Loan is denominated.
SECTION 9.16. [INTENTIONALLY DELETED].
SECTION 9.17. LANGUAGE. The parties hereto have agreed that this
Agreement as well as any document or instrument relating thereto be drawn up in
English only.
SECTION 9.18. [INTENTIONALLY DELETED].
SECTION 9.19. EUROPEAN ECONOMIC AND MONETARY UNION.
(a) EFFECTIVENESS OF PROVISIONS. The provisions of paragraphs (b) to
(i) below (inclusive) shall be effective at and from the commencement of the
third stage of EMU, PROVIDED that if and to the extent that any such provision
relates to any state (or the currency of such state) that is not a participating
member state on the commencement of the third stage of EMU, such provision shall
become effective in relation to such state (and the currency of such state) at
and from the date on which such state becomes a participating member state.
(b) REDENOMINATION AND ALTERNATIVE CURRENCIES. Each obligation under
this Agreement of a party to this Agreement which has been denominated in the
national currency unit of a participating member state shall be redenominated
into the euro unit in accordance with EMU legislation, PROVIDED that if and to
the extent that any EMU legislation provides that following the commencement of
the third stage of EMU an amount denominated either in the euro or in the
national currency unit of a participating member state and payable within that
participating member state by crediting an account of the creditor can be paid
by the debtor either in the euro unit or in that national currency unit, each
party to this Agreement shall be entitled to pay or repay any such amount either
in the euro unit or in such national currency unit.
(c) DETERMINATION OF LIBOR. For the purposes of determining the date
on which LIBOR is determined under this Agreement for any Loan denominated in
the euro (or any national currency unit) for any Interest Period therefor,
references in this Agreement to Business Days shall be deemed to be references
to Target Operating Days. In addition, if the Administrative Agent determines
that LIBOR is not displayed on the screen for deposits denominated in the
national currency unit in which any Loans are denominated, LIBOR for such Loans
shall be based upon the rate displayed on the screen for the offering of
deposits denominated in euro units.
62
(d) PAYMENTS TO THE ADMINISTRATIVE AGENT. This Agreement shall be
construed so that, in relation to the payment of any amount of euro units or
national currency units, such amount shall be made available to the
Administrative Agent in immediately available, freely transferable, cleared
funds to such account with such bank in Frankfurt am Main, Germany (or such
other principal financial center in such participating member state as the
Administrative Agent may from time to time nominate for this purpose) as the
Administrative Agent shall from time to time nominate for this purpose. This
Agreement shall be construed so that, in relation to the payment of any euro
units or national currency units to be made, the references to "Business Day"
therein shall instead refer to "Target Operating Day."
(e) PAYMENTS BY THE ADMINISTRATIVE AGENT TO THE LENDERS. Any amount
payable by the Administrative Agent to the Lenders under this Agreement in the
currency of a participating member state shall be paid in the euro unit.
(f) PAYMENTS BY THE ADMINISTRATIVE AGENT GENERALLY. With respect to
the payment of any amount denominated in the euro or in a national currency
unit, the Administrative Agent shall not be liable to any Borrower or any of the
Lenders in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have taken
all relevant steps to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely transferable, cleared
funds (in the euro unit or, as the case may be, in a national currency unit) to
the account of any Lender in the principal financial center in the participating
member state which the Borrower or, as the case may be, such Lender shall have
specified for such purpose. In this paragraph (f), "all relevant steps" means
all such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the Administrative
Agent may from time to time determine for the purpose of clearing or settling
payments of the euro.
(g) BASIS OF ACCRUAL. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the currency of any state that
becomes a participating member state shall be inconsistent with any convention
or practice in the LIBOR market for the basis of accrual of interest or fees in
respect of the euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such state becomes a
participating member state; PROVIDED that if any Loan in the currency of such
state is outstanding immediately prior to such date, such replacement shall take
effect, with respect to such Loan, at the end of the then current Interest
Period.
(h) ROUNDING. Without prejudice and in addition to any method of
conversion or rounding prescribed by the EMU legislation, each reference in this
Agreement to a minimum amount (or an integral multiple thereof) in a national
currency unit to be paid to or by the Administrative Agent shall be replaced by
a reference to such reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Administrative Agent may from time to
time specify.
(i) OTHER CONSEQUENTIAL CHANGES. Without prejudice to the respective
liabilities of the Borrower to the Lenders and the Lenders to the Borrower under
or pursuant to this Agreement, except as expressly provided in this Section
9.19, each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may
63
from time to time specify to be necessary or appropriate to reflect the
introduction of or changeover to the euro in participating member states.
Without limiting the generality of the foregoing, for each Available Foreign
Currency that is a national currency unit, the relevant display page on the
Telerate or ▇▇▇▇▇▇ screen used to determine the LIBOR Rate for applicable Loans
in such Available Foreign Currency shall be determined by the Administrative
Agent.
SECTION 9.20. CONFIDENTIALITY. Each of the Administrative Agent
and the Lenders agrees to keep confidential all non-public information provided
to it by the Borrower and its Subsidiaries pursuant to this Agreement that is
designated by the Borrower as confidential; provided that nothing herein shall
prevent the Administrative Agent or any Lender from disclosing any such
information (a) to the Administrative Agent, any other Lender or any affiliate
of any Lender, (b) to any participant or assignee (each, a "TRANSFEREE") of such
Lender or prospective Transferee which agrees to comply with the provisions of
this Section, (c) to any of its employees, directors, agents, attorneys,
accountants and other professional advisors, (d) upon the request or demand of
any governmental or regulatory authority having jurisdiction over it, (e) in
response to any order of any court or other governmental authority or as may
otherwise be required pursuant to any requirement of law, (f) if requested or
required to do so in connection with any litigation or similar proceeding, (g)
which has been publicly disclosed other than in breach of this Section 9.20, (h)
to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender or (i) in connection with the exercise of any
remedy hereunder or under any other Fundamental Document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and the year first above written.
PHH CORPORATION
By: /s/ Duncan H. Corcroft
-----------------------------------------
Name: Duncan H. Corcroft
Title: EVP--Finance and Treasurer
JPMORGAN CHASE BANK, individually and as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Title: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: Vice President
ALLFIRST BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANK OF MONTREAL
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, NA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
BARCLAYS BANK PLC
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: L. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
CIBC INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
CIBC World Markets Corp., as Agent
CITIBANK, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇ ▇'▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
MELLON BANK, N.A.
By: /s/ J. ▇▇▇▇ ▇▇▇▇
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Name: J. ▇▇▇▇ ▇▇▇▇
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
SUMITOMO MITSUI BANKING CORPORATION
(formerly known as The Sumitomo Bank,
Limited)
By: /s/ Suresh Tata
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Name: Suresh Tata
Title: Senior Vice President
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW
YORK BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate Director
Schedule 1.1A
COMMITMENTS
Lender Commitment
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JPMorgan Chase Bank $70,000,000
Bank of America, N.A. $60,000,000
Citibank, N.A. $60,000,000
Bank One, NA $55,000,000
The Bank of Nova Scotia $55,000,000
Barclays Bank PLC $37,500,000
CIBC Inc. $37,500,000
Credit Lyonnais New York Branch $37,500,000
The Royal Bank of Scotland PLC $37,500,000
First Union National Bank $37,500,000
Westdeutsche Landesbank Girozentrale, New York Branch $37,500,000
Bank of Montreal $37,500,000
Allfirst Bank $25,000,000
Bank of Tokyo-Mitsubishi Trust Company $25,000,000
Credit Suisse First Boston $25,000,000
▇▇▇▇▇▇ Commercial Paper Inc. $25,000,000
Mellon Bank, N.A. $25,000,000
Sumitomo Mitsui Banking Corporation $25,000,000
▇▇▇▇▇ Fargo Bank, N.A. $25,000,000
The Bank of New York $12,500,000
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TOTAL $750,000,000
Schedule 1.1B
AVAILABLE FOREIGN CURRENCIES
For purposes of Competitive Loans, Available Foreign Currencies are the
following:
Canadian Dollars
the lawful currency of France
the lawful currency of Germany
Japanese Yen
the lawful currency of England
Swiss Francs
the lawful currency of Italy
euro
Schedule 6.1
EXISTING MATERIAL SUBSIDIARY INDEBTEDNESS
Various Capital Lease Agreements - Cendant Mobility has minimum lease payments
in the amount of $2,870,733 and Cendant Mortgage has minimum lease payments in
the amount of $233,000.
Schedule 6.5
EXISTING LIENS
Liens in connection with leases of office equipment incurred in the ordinary
course of business.