EXHIBIT 10.102
EXECUTION COPY
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$1,900,000,000
364-DAY CREDIT AGREEMENT
dated as of
May 12, 2004
among
COUNTRYWIDE HOME LOANS, INC.,
COUNTRYWIDE FINANCIAL CORPORATION,
ROYAL BANK OF CANADA,
as Managing Administrative Agent,
BARCLAYS BANK PLC,
as Administrative Agent,
BNP PARIBAS,
as Syndication Agent,
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES and
SOCIETE GENERALE,
as Documentation Agents,
and
The Lenders Party Hereto
-----------------------
RBC CAPITAL MARKETS and BARCLAYS CAPITAL,
as Joint Bookrunners and Lead Arrangers
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TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions
SECTION 1.01. Defined Terms..................................................... 5
SECTION 1.02. Classification of Loans and Borrowings............................ 20
SECTION 1.03. Terms Generally................................................... 20
SECTION 1.04. Accounting Terms; GAAP............................................ 20
ARTICLE II
The Credits
SECTION 2.01. Commitments; Increases in Revolving Facility...................... 21
SECTION 2.02. Loans and Borrowings.............................................. 21
SECTION 2.03. Requests for Revolving Borrowings................................. 22
SECTION 2.04. Competitive Bid Procedure......................................... 23
SECTION 2.05. Swingline Loans................................................... 24
SECTION 2.06. Funding of Borrowings............................................. 25
SECTION 2.07. Interest Elections................................................ 26
SECTION 2.08. Termination and Reduction of Commitments.......................... 27
SECTION 2.09. Repayment of Loans; Evidence of Debt.............................. 28
SECTION 2.10. Prepayment of Loans............................................... 29
SECTION 2.11. Fees.............................................................. 29
SECTION 2.12. Interest.......................................................... 30
SECTION 2.13. Alternate Rate of Interest........................................ 31
SECTION 2.14. Increased Costs................................................... 32
SECTION 2.15. Break Funding Payments............................................ 33
SECTION 2.16. Taxes............................................................. 33
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs....... 34
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.................... 35
SECTION 2.19. Extension of Commitment Termination Date.......................... 36
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.............................................. 37
SECTION 3.02. Authorization; Enforceability..................................... 37
SECTION 3.03. Governmental Approvals; No Conflicts.............................. 37
SECTION 3.04. Financial Condition; No Material Adverse Change................... 38
SECTION 3.05. Properties........................................................ 38
1
SECTION 3.06. Litigation and Environmental Matters.............................. 38
SECTION 3.07. Compliance with Laws and Agreements............................... 39
SECTION 3.08. Investment and Holding Company Status............................. 39
SECTION 3.09. Taxes............................................................. 39
SECTION 3.10. ERISA............................................................. 39
SECTION 3.11. Disclosure........................................................ 39
SECTION 3.12. Federal Regulations............................................... 40
SECTION 3.13. Subsidiaries...................................................... 40
ARTICLE IV
Conditions
SECTION 4.01. Effective Date.................................................... 40
SECTION 4.02. Each Credit Event................................................. 41
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements; Ratings Change and Other Information........ 41
SECTION 5.02. Notices of Material Events........................................ 43
SECTION 5.03. Existence; Conduct of Business.................................... 43
SECTION 5.04. Payment of Obligations............................................ 44
SECTION 5.05. Maintenance of Properties; Insurance.............................. 44
SECTION 5.06. Hedging Program................................................... 44
SECTION 5.07. Books and Records; Inspection Rights.............................. 44
SECTION 5.08. Compliance with Laws and Contractual Obligations.................. 44
SECTION 5.09. Environmental Laws................................................ 44
SECTION 5.10. Use of Proceeds................................................... 45
SECTION 5.11. Compliance with Regulatory Requirements........................... 45
ARTICLE VI
Financial and Negative Covenants
SECTION 6.01. Financial Condition Covenants..................................... 45
SECTION 6.02. Liens............................................................. 45
SECTION 6.03. Fundamental Changes............................................... 45
SECTION 6.04. Acquisitions...................................................... 46
SECTION 6.05. Restricted Payments............................................... 46
SECTION 6.06. Indebtedness...................................................... 46
ARTICLE VII
Events of Default
2
ARTICLE VIII
Guarantee
SECTION 8.01. Guarantee......................................................... 49
SECTION 8.02. No Subrogation.................................................... 49
SECTION 8.03. Amendments, etc. with respect to the Borrower Obligations......... 50
SECTION 8.04. Guarantee Absolute and Unconditional.............................. 50
SECTION 8.05. Reinstatement..................................................... 51
SECTION 8.06. Payments.......................................................... 51
SECTION 8.07. Independent Obligations........................................... 51
ARTICLE IX
The Agents
SECTION 9.01. Appointment....................................................... 51
SECTION 9.02. Delegation of Duties.............................................. 52
SECTION 9.03. Exculpatory Provisions............................................ 52
SECTION 9.04. Reliance by Managing Administrative Agent......................... 52
SECTION 9.05. Notice of Default................................................. 52
SECTION 9.06. Non-Reliance on Agents and Other Lenders.......................... 53
SECTION 9.07. Indemnification................................................... 53
SECTION 9.08. Agent in Its Individual Capacity.................................. 53
SECTION 9.09. Successor Managing Administrative Agent........................... 54
SECTION 9.10. Documentation Agent, Syndication Agent and Administrative Agent... 54
ARTICLE X
Miscellaneous
SECTION 10.01. Notices.......................................................... 54
SECTION 10.02. Waivers; Amendments.............................................. 55
SECTION 10.03. Expenses; Indemnity; Damage Waiver............................... 56
SECTION 10.04. Successors and Assigns........................................... 57
SECTION 10.05. Survival......................................................... 59
SECTION 10.06. Counterparts; Integration; Effectiveness......................... 59
SECTION 10.07. Severability..................................................... 59
SECTION 10.08. Right of Setoff.................................................. 60
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process....... 60
SECTION 10.10. WAIVER OF JURY TRIAL............................................. 60
SECTION 10.11. Headings......................................................... 61
SECTION 10.12. Confidentiality.................................................. 61
SECTION 10.13. USA PATRIOT Act.................................................. 61
3
SCHEDULES:
Schedule 2.01 - Commitments
Schedule 2.05 - Swingline Commitments
Schedule 3.06 - Disclosed Matters
Schedule 3.13 - Material Subsidiaries
Schedule 6.02 - Existing Liens
EXHIBITS:
Exhibit A - Form of Closing Certificate
Exhibit B - Form of Assignment and Assumption
Exhibit C - Form of Opinion of Borrower's Counsel
Exhibit D - Form of New Lender Supplement
Exhibit E - Form of Increased Facility Activation Notice
4
364-DAY CREDIT AGREEMENT dated as of May 12, 2004, among COUNTRYWIDE
HOME LOANS, INC., COUNTRYWIDE FINANCIAL CORPORATION, COMMERZBANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES and SOCIETE GENERALE, as Documentation Agents, BNP
PARIBAS, as Syndication Agent, the LENDERS party hereto, BARCLAYS BANK PLC, as
Administrative Agent, and ROYAL BANK OF CANADA, as Managing Administrative
Agent.
WHEREAS, the Borrower has requested $1,900,000,000 in a senior
unsecured revolving credit facility from the Lenders for general corporate
purposes; and
WHEREAS, the Lenders are willing to provide the requested senior
unsecured revolving credit facility on the terms and conditions set forth
herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Barclays Bank Plc, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Managing Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means the Documentation Agents, the Syndication Agent, the
Administrative Agent and the Managing Administrative Agent.
"Aggregate Available Commitment" means, at any time, the excess, if
any of (a) the Aggregate Commitment over (b) the aggregate principal amount of
all Loans then outstanding.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments.
"Aggregate Deficit Amount" means, for any Person, at any time, the
excess of (i) the aggregate amount of payment obligations for which such Person
is then liable under its Hedge and Repo Transactions with one or more
counterparties over (ii) the then aggregate value of the collateral then
securing all such payment obligations.
"Aggregate Exposure" means, with respect to any Lender at any time,
the amount of such Lender's Commitment then in effect or, if the Commitments
have been terminated, the amount of such Lender's Credit Exposure then
outstanding.
"Aggregate Exposure Percentage" means, with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement" means this 364-Day Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loans" means Revolving Loans the rate of
interest applicable to which is based upon the Alternate Base Rate.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any Federal
Funds Rate Loan or Eurodollar Revolving Loan, or with respect to the facility
fees and utilization fees payable hereunder, as the case may be, the applicable
rate per annum set forth below (expressed in basis points) under the caption
"Federal Funds Rate Spread", "Eurodollar Spread", "Facility Fee Rate" or
"Utilization Fee Rate", as the case may be, based upon the ratings by ▇▇▇▇▇'▇
and S&P, respectively, applicable on such date to the Index Debt:
Utilization
Fee Rate Utilization Fee
(Total Usage of Rate
Federal Funds Eurodollar Facility Fee > or =33.3% but (Total Usage of
Index Debt Ratings Rate Spread Spread Rate < 66.7%) > or =66.7%)
------------------ ----------- ------ ---- -------- ---------------
> or = A1 from ▇▇▇▇▇'▇
or > or = A+ from S&P 23.0 23.0 7.0 7.5 15.0
A2 from ▇▇▇▇▇'▇
or A from S&P 27.0 27.0 8.0 7.5 15.0
A3 from ▇▇▇▇▇'▇
or A- from S&P 31.0 31.0 9.0 10.0 20.0
Baa1 from ▇▇▇▇▇'▇
or BBB+ from S&P 40.0 40.0 10.0 12.5 25.0
Baa2 from ▇▇▇▇▇'▇
or BBB from S&P 60.0 60.0 15.0 12.5 25.0
< Baa2 from ▇▇▇▇▇'▇
and < BBB from S&P
or unrated 80.0 80.0 20.0 12.5 25.0
For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P shall not have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in clause (iii) of this definition), then the rating assigned by the
other rating agency shall be used; (ii) if the ratings established or deemed to
have been established by ▇▇▇▇▇'▇ and S&P for the Index Debt shall fall within
different rating levels, the Applicable Rate shall be based on the higher of the
two ratings unless one of the two ratings is two or more rating levels lower
than the other, in which case the Applicable Rate shall be determined by
reference to the rating level next below that of the higher of the two ratings;
(iii) if either ▇▇▇▇▇'▇ or S&P shall cease to assign a rating to the Index Debt
solely because the Borrower elects not to participate or otherwise cooperate in
the ratings process of such rating agency, the Applicable Rate shall not be less
than that in effect immediately prior to such rating agency's rating becoming
unavailable; (iv) if the ratings established or deemed to have been established
by ▇▇▇▇▇'▇ and S&P for the Index Debt shall be changed (other than as a result
of a change in the rating system of ▇▇▇▇▇'▇ or S&P), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency, irrespective of when notice of such change shall have been furnished by
the Borrower to the Managing Administrative Agent and the Lenders pursuant to
Section 5.02 or otherwise; and (v) the Eurodollar Spread for each Ratings Level
above shall be increased by 0.125% if the Term-Out Maturity Date has been
selected for the period after the Commitment Termination Date. Each change in
the Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of ▇▇▇▇▇'▇ or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Lenders shall negotiate
in good faith to amend this definition to reflect such changed rating system or
the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Managing
Administrative Agent, in the form of Exhibit B or any other form approved by the
Managing Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Commitment Termination Date
and the date the Commitments are terminated as provided herein.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means CHL as a borrower hereunder, and, from and after
such time as CFC satisfies the CFC Ratings Conditions, CFC, as a borrower
hereunder, and after such time, the "Borrower" refers as appropriate to CHL, CFC
or both.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, (b) a Competitive Loan or group
of Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect or (c) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CFC" means Countrywide Financial Corporation, a Delaware
corporation.
"CFC Ratings Conditions" means the receipt by CFC of an issuer
rating with respect to its senior unsecured financial obligations and contracts
of at least A3 from ▇▇▇▇▇'▇ and A from S&P, in each case with a stable or better
outlook.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Change of Control" means, at any time, (i) any "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) becomes, or obtain rights (whether
by means or warrants, options or otherwise) to become, the "beneficial owner"
(as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of more than 35% of the outstanding voting stock of CFC or (ii) the
board of directors of CFC shall cease to consist of a majority of Continuing
Directors.
"CHL" means Countrywide Home Loans, Inc., a New York corporation.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Competitive Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in Swingline
Loans hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.08 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04. The initial amount of each Lender's Commitment is set forth on
Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender
shall have assumed its Commitment, as applicable. The initial aggregate amount
of the Lenders' Commitments is $1,900,000,000.
"Commitment Termination Date" means May 11, 2005.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid,
the Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Consolidated Net Worth" means, at any date, all amounts that would,
in conformity with GAAP, be included on a consolidated balance sheet of a Person
and its subsidiaries under stockholders' equity at such date.
"Continuing Directors" means the directors of CFC on the date hereof
and each other director, if, in each case, such other director's nomination for
election to the board of directors of CFC is recommended by at least 51% of the
then Continuing Directors.
"Contractual Obligation" means, 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.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Revolving Loans
(including Loans for which the Term-Out Maturity Date has been selected by the
Borrower) and its Swingline Exposure at such time.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02), which
date is May 12, 2004.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Eurodollar Tranche" is the collective reference to Eurodollar Loans
the then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Managing Administrative
Agent, the Administrative Agent, any Lender or any other recipient of any
payment to be made by or on account of any obligation of the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by the
United States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.18(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 2.16(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.16(a).
"Existing Credit Agreement" means the Credit Agreement, dated as of
February 27, 2002, among the Borrower, Royal Bank of Canada, as lead
administrative agent and arranger, Lloyds TSB Bank Plc, as co-administrative
agent and co-arranger, Commerzbank AG, New York Branch, as documentation agent
and co-arranger, Credit Lyonnais New York Branch, as syndication agent and
co-arranger, and certain lenders named therein, as amended, supplemented or
otherwise modified from time to time.
"Extending Lender" has the meaning assigned to such term in Section
2.19.
"Extension Notice" has the meaning assigned to such term in Section
2.19.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) 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 that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Managing Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Federal Funds Rate" means (i) for the first day of a Federal Funds
Rate Loan, the rate per annum which is the average of the rates on the offered
side of the Federal Funds market quoted by three interbank Federal Funds
brokers, selected by the Managing Administrative Agent, at approximately the
time the Borrower requests such Loan, and (ii) for each day of such Federal
Funds Rate Loan thereafter, the rate per annum which is the average of the rates
on the offered side of the Federal Funds market quoted by three interbank
Federal Funds brokers, selected by the Managing Administrative Agent, at
approximately 3:00 p.m., New York City time, on such day for Dollar deposits in
immediately available funds.
"Federal Funds Rate Loan" means Revolving Loans the rate of interest
applicable to which is based upon the Federal Funds Rate and designated as a
Federal Funds Rate Loan pursuant to Section 2.03 or 2.07.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fixed Rate" means, with respect to any Competitive Loan (other than
a Eurodollar Competitive Loan), the fixed rate of interest per annum specified
by the Lender making or proposing to make such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a
Fixed Rate.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Obligation" means, as to any Person (the "guaranteeing
person"), any obligation, including a reimbursement, counterindemnity or similar
obligation, of the guaranteeing person that guarantees or in effect guarantees,
or which is given to induce the creation of a separate obligation by another
Person (including any bank under any letter of credit) that guarantees or in
effect guarantees, any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Guarantor" has the meaning assigned to such term in Section 8.01.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedge and Repo Transaction" means a transaction consisting of or
arising under one or more of the following: (a) swaps, options, caps, collars,
floors and swaptions, including, without limitation, rate swaps, basis swaps,
commodity swaps, equity or equity index swaps, interest rate options, foreign
exchange transactions, forward rate agreements, rate guarantee agreements,
currency swaps, credit default swaps, total rate of return swaps, spread
options, and contracts for differences (including any options with respect to
any of the transactions referred to in this clause (a)); (b) repurchase
agreements, reverse purchase agreements, sell buy backs and buy sell back
agreements (each of the foregoing including in respect of mortgage loans),
securities lending and borrowing agreements, other agreements for the purchase,
sale or loan of securities, group or index securities (including any interest
therein or based on the value thereof), certificates of deposit or bankers'
acceptances (including any option with respect to any of the transactions
referred to in this clause (b)); (c) options of any type, whether with respect
to fixed-income securities or interest rates, and whether included on a national
securities exchange, privately negotiated or otherwise relating to guaranties of
settlements of cash or securities by or to securities clearing agencies; (d)
prepaid equity forwards and commodity options or forwards; (e) any other
transactions similar to those referred to in clause (a), (b), (c) or (d) above
entered into in the ordinary course of business of CFC or any subsidiary or to
the extent entered into solely by two or more of CFC and its subsidiaries; (f)
any combination of two or more transactions referred to in clause (a), (b), (c),
(d) or (e) above; and (g) any agreement or master agreement (including the
supplements thereto and confirmations thereunder and the terms and conditions
incorporated by reference in any and all of the foregoing) for transactions
referred to in clause (a), (b), (c), (d) or (e) above.
"Hedging Program" means a program for hedging interest rate risks by
CFC and its subsidiaries, which program shall include, without limitation, Hedge
and Repo Transactions.
"Increased Facility Activation Date" means any Business Day on which
any Lender shall execute and deliver to the Managing Administrative Agent an
Increased Facility Activation Notice pursuant to Section 2.01(b).
"Increased Facility Activation Notice" means a notice substantially
in the form of Exhibit E.
"Increased Facility Closing Date" means any Business Day designated
as such in an Increased Facility Activation Notice.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to
be secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (j)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor. "Indebtedness" shall not include obligations under customary
indemnification provisions in agreements relating to the sale or purchase of
assets or property.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Borrower that is not guaranteed by any Person other than
CFC or CHL, as applicable, or subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information
Memorandum dated April 2004 relating to the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any Federal Funds
Rate Loan (other than a Swingline Loan), the last day of each calendar month,
(b) with respect to any Eurodollar Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than one month's duration,
each day prior to the last day of such Interest Period that occurs at intervals
of one month's duration after the first day of such Interest Period, (c) with
respect to any Fixed Rate Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing and (d) with respect to any Swingline Loan,
the day that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Borrower may elect, and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than seven days or
more than 180 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request; 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 a Eurodollar Borrowing 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, (ii) any Interest Period pertaining to a Eurodollar
Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period and (iii) any Interest Period that would
otherwise end after the Commitment Termination Date (or, in the case of
Revolving Loans, if applicable, the Term-Out Maturity Date) shall end on the
Commitment
Termination Date or the Term-Out Maturity Date, as the case may be. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such
Borrowing.
"JPMorgan Credit Agreements" means, collectively, (i) the 364-Day
Credit Agreement, dated as of May 12, 2004, among CHL, CFC, JPMorgan Chase Bank,
as managing administrative agent, and the other agents and lenders party thereto
and (ii) the Five-Year Credit Agreement, dated as of May 12, 2004, among CHL,
CFC, JPMorgan Chase Bank, as managing administrative agent, and the other agents
and lenders party thereto, in each case as amended, supplemented or otherwise
modified from time to time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption or New Lender Supplement, other than any such Person that ceases to
be a party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term "Lenders" includes the Swingline Lenders.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the Managing
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Managing Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement and the Notes, if any.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Managing Administrative Agent" means Royal Bank of Canada, in its
capacity as managing administrative agent.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, or condition, financial or otherwise, of CFC, CHL
and their Subsidiaries taken as a whole or (b) the validity or enforceability of
this Agreement or any other Loan Document or the rights or remedies of the
Managing Administrative Agent or the Lenders hereunder or thereunder.
"Material Indebtedness" means (i) Indebtedness outstanding under the
JPMorgan Credit Agreements and (ii) any other Indebtedness (other than the
Loans), or obligations in respect of one or more Hedge and Repo Transactions, of
any one or more of the Borrower and its Subsidiaries in an aggregate principal
amount exceeding $100,000,000.
"Material Subsidiary" means, at any time, each Subsidiary which (i)
is set forth in Schedule 3.13 under the heading "Permanent Material
Subsidiaries", (ii) individually had revenue in the then most recently ended
fiscal year of CFC comprising 5% or more of the consolidated revenue of CFC and
its Subsidiaries for such fiscal year or (iii) is designated a Material
Subsidiary by the Borrower in Schedule 3.13 under the heading "Designated
Material Subsidiaries" (as such list of Designated Material Subsidiaries may be
supplemented or modified from time to time after the Effective Date upon written
notice to the Managing Administrative Agent and the Lenders). In no event shall
the aggregate revenue of Subsidiaries of CFC which are not deemed or designated
Material Subsidiaries in accordance with the preceding sentence for the then
most recently ended fiscal year equal or exceed 20% of the consolidated revenue
of CFC and its Subsidiaries for such fiscal year.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"New Lender" has the meaning set forth in Section 2.01(b).
"New Lender Supplement" has the meaning set forth in Section
2.01(b).
"Non-Extending Lender" has the meaning assigned to such term in
Section 2.19.
"Notes": the collective reference to any promissory note evidencing
Loans.
"Obligations" means the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Agents or to any Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, any other Loan
Document or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest, fees, indemnities,
costs, expenses (including all fees, charges and disbursements of counsel to the
Agents or to any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise.
"OCC" means the Office of the Comptroller of the Currency of the
United States of America or any successor federal bank regulatory authority.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Participant" has the meaning set forth in Section 10.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; provided that such liens
shall not secure any judgments of more than $100,000,000 in the aggregate
for more than 60 days;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
(g) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.03;
provided that (i) such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(h) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be,
(ii) such Lien shall not apply to any other property or assets of the
Borrower or any Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof; and
(i) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary, provided that (i) such
security interests and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement, (ii) the Indebtedness secured thereby does
not exceed the cost of acquiring, constructing or improving such fixed or
capital assets and (iii) such security interests shall not apply to any
other property or assets of the Borrower or any Subsidiary.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Royal Bank of Canada as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 10.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Credit Exposures and unused Commitments at such time; provided that, for
purposes of declaring the Loans to be due and payable pursuant to Article VII,
and for all purposes after the Loans become due and payable pursuant to Article
VII or the Commitments expire or terminate, the outstanding Competitive Loans of
the Lenders shall be included in their respective Credit Exposures in
determining the Required Lenders.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such Equity Interests in the Borrower or any option, warrant
or other right to acquire any such Equity Interests in the Borrower.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"SEC" means the Securities and Exchange Commissions, any successor
thereto and any analogous Governmental Authority.
"Specified MSR Liens" means (i) Liens on mortgage servicing rights
securing secured lines of credit for, warehouse financings of, or repurchase
transactions involving, the whole mortgage loans to which such mortgage
servicing rights relate and (ii) Liens on mortgage servicing rights following
sales or securitizations of the mortgage loans to which such mortgage servicing
rights relate where such Liens are intended to benefit the investors in the
event such sales or securitizations are not "true sale" transactions.
"Statutory Reserve Rate" means 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 to which the Managing Administrative Agent is subject
with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any such reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent. Unless the context
requires otherwise, "Subsidiary" shall refer to any subsidiary of CFC.
"Swingline Commitment" means, with respect to each Swingline Lender,
the commitment of such Swingline Lender to make Swingline Loans. The initial
amount of each Swingline Lender's Swingline Commitment is set forth in Schedule
2.05.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means each Lender having a Swingline Commitment
set forth in Schedule 2.05 (as such Schedule may be amended and supplemented
from time to time upon the consent of the Borrower and the applicable Lender and
notice to the Managing Administrative Agent), in its capacity as a lender of
Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term-Out Maturity Date" means, if so selected by the Borrower
pursuant to Section 2.09(a), May 11, 2006.
"Total Usage" has the meaning assigned to such term in Section
2.11(b).
"Transactions" means the execution, delivery and performance by CFC
and CHL of this Agreement and the other Loan Documents, the borrowing of Loans
and the use of the proceeds thereof by the Borrower.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Federal
Funds Rate, the Alternate Base Rate or, in the case of a Competitive Loan or
Borrowing, the LIBO Rate or a Fixed Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Managing Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Managing Administrative
Agent notifies the Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments; Increases in Revolving Facility. (a)
Subject to the terms and conditions set forth herein, each Lender agrees to make
Revolving Loans to the Borrower from time to time during the Availability Period
in an aggregate principal amount that will not result in (i) such Lender's
Credit Exposure exceeding such Lender's Commitment or (ii) the sum of the total
Credit Exposures plus the aggregate principal amount of outstanding Competitive
Loans exceeding the total Commitments. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Revolving Loans.
(a) The Borrower and any one or more Lenders (including New Lenders)
may from time to time agree that such Lenders shall make, obtain or increase the
amount of their Commitments by executing and delivering to the Managing
Administrative Agent an Increased Facility Activation Notice specifying (i) the
amount of such increase and (ii) the applicable Increased Facility Closing Date.
Notwithstanding the foregoing, without the consent of the Required Lenders, (x)
in no event shall the aggregate amount of the Commitments exceed $3,000,000,000,
(y) each increase effected pursuant to this paragraph shall be in a minimum
amount of at least $50,000,000 and (z) no more than three Increased Facility
Closing Dates may be selected by the Borrower after the Effective Date. No
Lender shall have any obligation to participate in any increase described in
this paragraph unless it agrees to do so in its sole discretion. Any additional
bank, financial institution or other entity which, with the consent of the
Borrower and the Managing Administrative Agent (which consent shall not be
unreasonably withheld), elects to become a "Lender" under this Agreement in
connection with any transaction described in this Section 2.01(b) shall execute
a New Lender Supplement (each, a "New Lender Supplement"), substantially in the
form of Exhibit D, whereupon such bank, financial institution or other entity (a
"New Lender") shall become a Lender for all purposes and to the same extent as
if originally a party hereto and shall be bound by and entitled to the benefits
of this Agreement.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.07(c)(iii) and Section 2.13, each Revolving
Borrowing shall be comprised entirely of Federal Funds Rate Loans or Eurodollar
Loans as the Borrower may request in accordance herewith. Subject to Section
2.13, each Competitive Borrowing shall be comprised entirely of Eurodollar Loans
or Fixed Rate Loans as the Borrower may request in accordance herewith. Subject
to Section 2.12(d), each Swingline Loan shall bear interest in a manner and for
a period to be agreed upon by the Borrower and the applicable Swingline Lender,
provided that in the event the Borrower requests a Swingline Loan and does not
agree upon a period and interest rate with the applicable Swingline Lender with
respect thereto, such Swingline Loan shall be a Federal Funds Rate Loan. Each
Lender at its option may make any Eurodollar 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.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $25,000,000 and not less than $25,000,000. At the time that
each Federal Funds Rate Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $25,000,000 and not less
than $25,000,000; provided that a Federal Funds Rate Revolving Borrowing may be
in an aggregate amount that is equal to the entire unused balance of the total
Commitments. Each Competitive Borrowing shall be in an aggregate amount that is
an integral multiple of $25,000,000 and not less than $25,000,000. Each
Swingline Loan shall be in an amount that is an integral multiple of $5,000,000
and not less than $5,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of six Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Commitment Termination Date (if such Interest Period commences prior
to the Commitment Termination Date) or the Term-Out Maturity Date (if such
Interest Period commences on or after the Commitment Termination Date).
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Managing Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Revolving
Borrowing, not later than 12:00 noon, New York City time, three Business Days
before the date of the proposed Borrowing or (b) in the case of a Federal Funds
Rate Revolving Borrowing, not later than 2:00 p.m., New York City time, on the
date of the proposed Borrowing. The Borrower may request that more than one
Revolving Borrowing be made on the same day. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Managing Administrative Agent of a written Borrowing Request in
a form approved by the Managing Administrative Agent and signed by the Borrower.
Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Federal Funds Rate Revolving
Borrowing or a Eurodollar Revolving Borrowing;
(iv) in the case of a Eurodollar Revolving Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be a Federal Funds Rate Borrowing. If no
Interest Period is specified with respect to any requested Eurodollar Revolving
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Managing Administrative Agent shall advise
each Lender of the details thereof and of the amount of such Lender's Loan to be
made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms
and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Credit Exposures plus the aggregate principal amount
of outstanding Competitive Loans at any time shall not exceed the total
Commitments. To request Competitive Bids, the Borrower shall notify the Managing
Administrative Agent of such request by telephone, in the case of a Eurodollar
Competitive Borrowing, not later than 12:00 noon, New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) three Competitive Bid Requests on
the same day, but a Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request, unless any
and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Managing Administrative Agent of a written Competitive Bid Request in a
form approved by the Managing Administrative Agent and signed by the Borrower.
Each such telephonic and written Competitive Bid Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Competitive
Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the
requirements of Section 2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Managing Administrative Agent shall notify the Lenders of the
details thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to the Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Managing Administrative Agent and must be received by the Managing
Administrative Agent by telecopy, in the case of a Eurodollar Competitive
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before the proposed date of such Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the
proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the form approved by the Managing Administrative Agent
may be rejected by the Managing Administrative Agent, and the Managing
Administrative Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 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, (ii) the Competitive Bid Rate or Rates at which the
applicable Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in
the form of a decimal to no more than four decimal places) and (iii) the
Interest Period applicable to each such Loan and the last day thereof.
(c) The Managing Administrative Agent shall promptly notify the
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower
may accept or reject any Competitive Bid. The Borrower shall notify the Managing
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Managing Administrative Agent, whether and to what extent it has decided to
accept or reject each Competitive Bid, in the case of a Eurodollar Competitive
Borrowing, not later than 10:30 a.m., New York City time, three Business Days
before the date of the proposed Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the
proposed date of the Competitive Borrowing; provided that (i) the failure of the
Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made at a
particular Competitive Bid Rate if the Borrower rejects a Competitive Bid made
at a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive
Bids accepted by the Borrower shall not exceed the aggregate amount of the
requested Competitive Borrowing specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with clause (iii) above, the
Borrower may accept Competitive Bids at the same Competitive Bid Rate in part,
which 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, and (v) except pursuant to clause (iv) above, no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of $5,000,000 and an integral multiple of $5,000,000;
provided further that if a Competitive Loan must be in an amount less than
$5,000,000 because of the provisions of clause (iv) above, such Competitive Loan
may be for a minimum 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 (iv)
the amounts shall be rounded to integral multiples of $1,000,000 in a manner
determined by the Borrower. A notice given by the Borrower pursuant to this
paragraph shall be irrevocable.
(e) The Managing Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Managing 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 at least one quarter of an hour earlier than the
time by which the other Lenders are required to submit their Competitive Bids to
the Managing Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, each Swingline Lender agrees to make Swingline
Loans to the Borrower from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of its outstanding Swingline Loans exceeding its
Swingline Commitment or (ii) the sum of the total Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans exceeding the total
Commitments; provided that no Swingline Lender shall be required to make a
Swingline Loan to refinance any outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
applicable Swingline Lender of such request by telephone (confirmed by
telecopy), not later than 2:00 p.m., New York City time, on the day of a
proposed Swingline Loan. Each such notice shall be irrevocable and shall specify
the requested date (which shall be a Business Day), the requested maturity date
(which date shall be a Business Day and a day not later than the earlier of the
Commitment Termination Date and the tenth Business Day after the date such
Swingline Loan is to be made) and amount of the requested Swingline Loan. Such
Swingline Lender will determine with the Borrower, as provided in Section
2.12(e), the interest rate to be applicable to such Swingline Loan and will then
promptly advise the Managing Administrative Agent of any such Swingline Loan.
The applicable Swingline Lender shall make each Swingline Loan available to the
Borrower by 3:00 p.m., New York City time, on the requested date of such
Swingline Loan.
(c) Any Swingline Lender may, by written notice given to the
Managing Administrative Agent not later than 10:00 a.m., New York City time, on
any Business Day on or after the maturity date of any of its Swingline Loans,
require the Lenders to acquire participations on such Business Day in all or a
portion of such Swingline Loan. Such notice shall specify the aggregate amount
of Swingline Loans in which Lenders will participate. Promptly upon receipt of
such notice, the Managing Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Managing
Administrative Agent, for the account of the applicable Swingline Lender, such
Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or Event of Default or reduction or termination of
the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Lender shall comply with
its obligation under this paragraph by wire transfer of immediately available
funds, in the same manner as provided in Section 2.06 with respect to Loans made
by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Managing Administrative Agent shall
promptly pay to the applicable Swingline Lender the amounts so received by it
from the Lenders. The Managing Administrative Agent shall notify the Borrower of
any participations in any Swingline Loan acquired pursuant to this paragraph,
and thereafter payments in respect of such Swingline Loan shall be made to the
Managing Administrative Agent and not to the applicable Swingline Lender. Any
amounts received by a Swingline Lender from the Borrower (or other party on
behalf of the Borrower) in respect of a Swingline Loan after receipt by such
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Managing Administrative Agent; any such amounts
received by the Managing Administrative Agent shall be promptly remitted by the
Managing Administrative Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the applicable Swingline Lender, as their
interests may appear; provided that any such payment so remitted shall be repaid
to the Swingline Lender or to the Managing Administrative Agent, as applicable,
if and to the extent such payment is required to be refunded to the Borrower for
any reason. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Borrower of any default in the payment thereof.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 3:00 p.m., New York City time, to the account of
the Managing Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided that
Swingline Loans shall be made as provided in Section 2.05. The Managing
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Managing Administrative Agent in New York City and
designated by the Borrower in the applicable Borrowing Request or Competitive
Bid Request.
(b) Unless the Managing Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Managing Administrative Agent such
Lender's share of such Borrowing, the Managing Administrative Agent may assume
that such Lender has made such share available on such date in accordance with
paragraph (a) of this Section and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the Managing
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Managing Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to the Borrower to but excluding the date of
payment to the Managing Administrative Agent, at (i) in the case of such Lender,
the greater of the Federal Funds Rate and a rate determined by the Managing
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the Federal Funds Rate plus
the Applicable Rate. If such Lender pays such amount to the Managing
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing as of the date of such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings or Swingline Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Managing Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Managing Administrative Agent of a written
Interest Election Request in a form approved by the Managing Administrative
Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be a Federal Funds Rate
Borrowing or a Eurodollar Borrowing, provided that in the event that the
Borrower elects to extend the date on which the Revolving Loans shall be
due and payable in accordance with Section 2.09(a), then each Revolving
Loan Borrowing outstanding on or after the Commitment Termination Date
shall be comprised of Alternate Base Rate Loans or Eurodollar Loans; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Managing Administrative Agent shall advise each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to a Federal Funds Rate Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Managing Administrative Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Revolving Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be
converted to an Alternate Base Rate Borrowing at the end of the Interest Period
applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Commitment
Termination Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $25,000,000 and not less
than $25,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of the Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans would exceed the total
Commitments. The Borrower may at any time terminate, or from time to time
reduce, the Swingline Commitments of one or more Swingline Lenders without any
reduction or termination of the Commitments; provided that (i) each reduction of
any Swingline Commitment shall be in an amount that is an integral multiple of
$25,000,000 and not less than $25,000,000 and (ii) the Borrower shall not
terminate or reduce the Swingline Commitment of any Swingline Lender if, after
giving effect to such termination or reduction, the sum of the outstanding
Swingline Loans of such Swingline Lender would exceed its Swingline Commitment.
(c) The Borrower shall notify the Managing Administrative Agent of
any election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Managing Administrative
Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Managing
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
(d) Upon the occurrence of a Change of Control with respect to CFC,
the Managing Administrative Agent, at the request of the Required Lenders, may,
by notice to the Borrower, terminate the Commitments, such termination to be
effective as of the date set forth in such notice for the termination of the
Commitments but in no event earlier than one Business Day following the date
such notice was delivered to the Borrower.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Managing Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Commitment Termination Date or on the Business Day
specified in any notice delivered by the Managing Administrative Agent referred
to in Section 2.08(d), (ii) to the Managing Administrative Agent for the account
of each applicable Lender the then unpaid principal amount of each Competitive
Loan on the last day of the Interest Period applicable to such Loan and (iii) to
each Swingline Lender the then unpaid principal amount of any Swingline Loan
owing to such Swingline Lender on the maturity date applicable to such Swingline
Loan. Upon receipt of any payment or prepayment by a Swingline Lender from the
Borrower on account of the principal amount of a Swingline Loan, such Swingline
Lender shall provide written notice to the Managing Administrative Agent of the
date and amount of such payment or prepayment. Notwithstanding clause (i) above,
the Borrower may, upon written notice to the Managing Administrative Agent and
the Lenders given at least three Business Days prior to the Commitment
Termination Date, extend the date upon which the principal amount of the
Revolving Loans outstanding as of the Commitment Termination Date will be due
and payable to the Term-Out Maturity Date. If the Borrower gives notice to the
Managing Administrative Agent in accordance with the preceding sentence, the
Borrower hereby agrees that the outstanding principal balance of each Revolving
Loan outstanding on the Commitment Termination Date shall be payable on the
Term-Out Maturity Date. From and after the Commitment Termination Date, any
Revolving Loans for which the Borrower has elected the Term-Out Maturity Date
shall consist entirely of Alternate Base Rate Loans and Eurodollar Loans, and
any such Revolving Loans which consist of Federal Funds Rate Loans on the
Commitment Termination Date shall automatically be converted into Alternate Base
Rate Loans in the absence of a conversion on such date into Eurodollar Loans. It
is understood that, whether or not the Term-Out Maturity Date is selected, (x)
the Commitments shall automatically terminate on the Commitment Termination Date
and (y) no maturity date for any Competitive Loan or Swingline Loan may be
extended beyond the Commitment Termination Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Managing Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the
Managing Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Managing Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Managing Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Managing Administrative Agent
(and, in the case of prepayment of a Swingline Loan or Competitive Loan, the
applicable Swingline Lender or the applicable Lender, respectively) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 12:00 noon, New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of a Federal Funds Rate Revolving Borrowing, an Alternate
Base Rate Revolving Borrowing, a Fixed Rate Borrowing or a Swingline Loan, not
later than 12:00 noon, New York City time, on the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.08, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Managing Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any
Revolving Borrowing shall be in an amount that would be permitted in the case of
an advance of a Revolving Borrowing of the same Type as provided in Section
2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.12. From and after the
Commitment Termination Date, amounts prepaid on account of Loans may not be
reborrowed.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the Managing
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the date
hereof to but excluding the date on which such Commitment terminates (and, if
the Term-Out Maturity Date has been selected, during the period from and
including the Commitment Termination Date to but excluding the Term-Out Maturity
Date); provided that, if such Lender continues to have any outstanding Loans
after its Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Lender's Loans from and including the date on which
its
Commitment terminates (including, without limitation, during any period after
the Commitment Termination Date if the Term-Out Maturity Date is selected) to
but excluding the date on which such Lender ceases to have any Loans
outstanding. Facility fees accrued through and including the last day of March,
June, September and December of each year shall be payable on the third Business
Day following such last day, commencing on the first such date to occur after
the date hereof; provided that all such fees shall be payable on the date on
which the Commitments terminate and any such fees accruing after the date on
which the Commitments terminate shall be payable on demand. All facility fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(b) During the Availability Period (and, if the Term-Out Maturity
Date has been selected, during the period from and including the Commitment
Termination Date to but excluding the Term-Out Maturity Date), the Borrower
agrees to pay to the Managing Administrative Agent for the account of each
Lender a utilization fee at the Applicable Rate on the aggregate amount of the
Revolving Loans under this Agreement outstanding on each day during the quarter
for which such fee is to be paid; provided, that no such fee shall be required
to be paid with respect to any day on which the sum of the aggregate amount of
the Revolving Loans, Swingline Loans and Competitive Loans then outstanding
under this Agreement ("Total Usage") does not equal or exceed 33.3% of the sum
of the aggregate Commitments of the Lenders then in effect under this Agreement
(it being understood that such amount shall be $0 on each day following the
Commitment Termination Date) (the "Utilization Threshold"). Such utilization
fee, to the extent payable, shall be payable quarterly in arrears on the last
day of each March, June, September and December, commencing on June 30, 2004 and
on the Commitment Termination Date, and, if applicable, the Term-Out Maturity
Date (or, in any case, any earlier date on which all amounts outstanding
hereunder shall become due and payable by acceleration or otherwise). All
utilization fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrower agrees to pay to the Managing Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Managing Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Managing Administrative Agent for
distribution, in the case of facility fees and utilization fees, to the Lenders.
Fees paid shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each Federal Funds
Rate Borrowing shall bear interest at the Federal Funds Rate plus the Applicable
Rate.
(b) The Loans comprising each Alternate Base Rate Borrowing shall
bear interest at the Alternate Base Rate.
(c) The Loans comprising each Eurodollar Borrowing shall bear
interest (i) in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate, or (ii) in the case of a Eurodollar Competitive Loan, at the LIBO Rate for
the Interest Period in effect for such Borrowing plus (or minus, as applicable)
the Margin applicable to such Loan.
(d) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(e) Each Swingline Loan shall bear interest in a manner to be agreed
upon by the Borrower and the applicable Swingline Lender, provided that (i) in
the event the Borrower requests a Swingline Loan and does not agree upon an
interest rate with such Swingline Lender with respect thereto, such Swingline
Loan shall bear interest at the Federal Funds Rate plus the Applicable Rate and
(ii) from and after the maturity date of such Swingline Loan, such Swingline
Loan (or participated portion thereof) shall bear interest at the Alternate Base
Rate.
(f) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the Alternate
Base Rate.
(g) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of a Federal
Funds Rate Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(h) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Managing
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Managing Administrative Agent determines (which
determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate or
the LIBO Rate, as applicable, for such Interest Period; or
(b) the Managing Administrative Agent is advised by the Required
Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender that
is required to make such Loan) that the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Managing Administrative Agent shall give notice thereof to the Borrower
and the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Managing Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, (i)
any Interest Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar
Borrowing shall be ineffective and such Revolving Borrowing shall be a Federal
Funds Rate Revolving Borrowing (or, after the Commitment
Termination Date, an Alternate Base Rate Borrowing), (ii) if any Borrowing
Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be made
as a Federal Funds Rate Revolving Borrowing and (iii) any request by the
Borrower for a Eurodollar Competitive Borrowing shall be ineffective; provided
that if the circumstances giving rise to such notice do not affect all the
Lenders, then requests by the Borrower for Eurodollar Competitive Borrowings may
be made to Lenders that are not affected thereby.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) 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 (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans or Fixed Rate Loans
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 Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender reasonably determines that any Change in Law
regarding capital requirements 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 this Agreement or the Loans made by such
Lender to a level below that which such Lender or such Lender's holding company
could have achieved but for such Change in Law (taking into consideration such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy), then from time to time the Borrower will pay to such
Lender such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 270 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 270-day period referred
to above shall be extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Competitive Loan if the Change in
Law that would otherwise entitle it to such compensation shall have been
publicly announced prior to submission of the Competitive Bid pursuant to which
such Loan was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurodollar Loan or Fixed Rate Loan on
the date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.10(b) and is revoked in
accordance therewith), (d) the failure to borrow any Competitive Loan after
accepting the Competitive Bid to make such Loan, or (e) the assignment of any
Eurodollar Loan or Fixed Rate Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of
any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Managing Administrative Agent or
affected Lender (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Managing Administrative Agent
and each Lender, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Managing
Administrative Agent or such Lender, as the case may be, on or with respect to
any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender, or by the
Managing Administrative Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Managing Administrative Agent the original or a certified copy of
a receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Managing Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Managing Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
(f) If the Managing Administrative Agent or a Lender determines, in
its sole discretion, that it has received a refund of any Taxes or Other Taxes
as to which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.16, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.16 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Managing Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the
request of the Managing Administrative Agent or such Lender, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Managing Administrative
Agent or such Lender in the event the Managing Administrative Agent or such
Lender is required to repay such refund to such Governmental Authority. This
Section shall not be construed to require the Managing Administrative Agent or
any Lender to make available its tax returns (or any other information relating
to its taxes which it deems confidential) to the Borrower or any other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or of amounts payable under
Section 2.14, 2.15 or 2.16, or otherwise) prior to 12:00 noon, New York City
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Managing Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Managing Administrative Agent at
its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made
directly to Swingline Lenders as expressly provided herein and except that
payments pursuant to Sections 2.14, 2.15, 2.16 and 10.03 shall be made directly
to the Persons entitled thereto. The Managing Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. Each payment
(including each prepayment) on account of principal of and interest on the
Revolving Loans shall be made pro rata according to the respective outstanding
principal amounts of the Revolving Loans then held by the Lenders. If any
payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in dollars.
(b) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and Swingline Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(c) Unless the Managing Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Managing Administrative Agent for the account of the Lenders hereunder that the
Borrower will not make such payment, the Managing Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders severally agrees to repay to the Managing
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Managing
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Managing Administrative Agent in accordance with banking
industry rules on interbank compensation.
(d) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(c), 2.06(b) or 2.17(c), then the Managing
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Managing
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of
any Lender pursuant to Section 2.16, or if any Lender defaults in its obligation
to fund Loans hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Managing Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
the Borrower shall have received the prior written consent of the Managing
Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans (other than Competitive Loans) and participations in
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.14 or payments required to be made
pursuant to Section 2.16, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 2.19. Extension of Commitment Termination Date. (a) The
Borrower may, by written notice to the Managing Administrative Agent (such
notice being an "Extension Notice") given no earlier than 60 days and no later
than 45 days prior to the Commitment Termination Date, request the Lenders to
consider an extension of the then applicable Commitment Termination Date to a
date 364 days after the then applicable Commitment Termination Date. The
Managing Administrative Agent shall promptly transmit any Extension Notice to
each Lender. Each Lender shall notify the Managing Administrative Agent whether
it wishes to extend the then applicable Commitment Termination Date no later
than 20 days prior to such Commitment Termination Date, and any such notice
given by a Lender to the Managing Administrative Agent, once given, shall be
irrevocable as to such Lender. Any Lender which does not expressly notify the
Managing Administrative Agent prior to such 20-day period that it wishes to so
extend the then applicable Commitment Termination Date shall be deemed to have
rejected the Borrower's request for extension of such Commitment Termination
Date. Lenders consenting to extend the then applicable Commitment Termination
Date are hereinafter referred to as "Extending Lenders", and Lenders declining
to consent to extend such Commitment Termination Date (or Lenders deemed to have
so declined) are hereinafter referred to as "Non-Extending Lenders". If the
Required Lenders have elected (in their sole and absolute discretion) to so
extend the Commitment Termination Date, the Managing Administrative Agent shall
notify the Borrower of such election by such Required Lenders no later than 15
days prior to such Commitment Termination Date, and upon receipt of such notice
the Borrower shall promptly inform the Managing Administrative Agent whether or
not it wishes to extend the Commitment Termination Date with respect to the
Commitments of the Extending Lenders. In the event that the Borrower elects to
accept the Extending Lenders' offer to extend the Commitment Termination Date,
the Commitment Termination Date of such Extending Lenders shall be so extended.
No extension will be permitted hereunder if the Borrower has selected the
Term-Out Maturity Date pursuant to Section 2.09(a). Upon the delivery of an
Extension Notice and upon the extension of the Commitment Termination Date
pursuant to this Section 2.19, the Borrower shall be deemed to have represented
and warranted on and as of the date of such Extension Notice and the effective
date of such extension, as the case may be, that no Default or Event of Default
has occurred and is continuing. Notwithstanding anything contained in this
Agreement to the contrary, no Lender shall have any obligation to extend the
Commitment Termination Date, and each Lender may at its option, unconditionally
and without cause, decline to extend the Commitment Termination Date.
(b) If the Commitment Termination Date shall have been extended in
accordance with Section 2.19(a), all references herein to the "Commitment
Termination Date" shall refer to the Commitment Termination Date as so extended
and all references herein to the "Term-Out Maturity Date" shall refer to a date
which is the first anniversary of the Commitment Termination Date as so
extended.
(c) If any Lender shall determine not to extend the Commitment
Termination Date as requested by any Extension Notice given by the Borrower
pursuant to Section 2.19(a), the Commitment of such Lender shall terminate on
the Commitment Termination Date without giving any effect to such proposed
extension, and the Borrower shall on such date pay to the Managing
Administrative Agent, for the account of such Lender, the principal amount of,
and accrued interest on, such Lender's Loans, together with any amounts payable
to such Lender pursuant to Section 2.15 and any fees or other amounts owing to
such Lender under this Agreement. The Aggregate Commitment shall be reduced by
the amount of the Commitment of such Non-Extending Lender.
(d) If the Commitment Termination Date shall have been extended in
respect of Extending Lenders in accordance with Section 2.19(a), any notice of
borrowing pursuant to Section 2.03 specifying a Borrowing Date occurring after
the Commitment Termination Date applicable to a Non-Extending Lender or
requesting an Interest Period extending beyond such date shall (a) have no
effect in respect of such Non-Extending Lender and (b) not specify a requested
aggregate principal amount exceeding the Aggregate Available Commitment
(calculated on the basis of the Commitments of the Extending Lenders).
ARTICLE III
Representations and Warranties
Each of CFC and CHL represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of CFC and its Material
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
within CFC's and CHL's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by each of CFC and CHL and each of this
Agreement and, when executed and delivered, each of the other Loan Documents
constitutes a legal, valid and binding obligation of each of CFC and CHL,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of CFC or CHL or any of their respective subsidiaries or any order of
any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon CFC or
CHL or any of their respective subsidiaries or its assets, or give rise to a
right thereunder to require any payment to be made by CFC or CHL or any of their
respective subsidiaries, and (d) will not result in the creation or imposition
of any Lien on any asset of CFC or CHL or any of their respective subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
CFC has heretofore furnished to the Lenders its consolidated and consolidating
balance sheet and statements of income, stockholders equity and cash flows (i)
as of and for the fiscal years ended December 31, 2002 and December 31, 2003, in
the case of such consolidated statements, reported on by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended March 31, 2004, certified by its chief
financial officer. Such financial statements present fairly, in all material
respects, the financial condition and results of operations and cash flows of
CFC and its consolidated subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) CHL has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders equity and cash flows (i)
as of and for the fiscal years ended December 31, 2002 and December 31, 2003 and
(ii) as of and for the fiscal quarter and the portion of the fiscal year ended
March 31, 2004, in each case certified by its chief financial officer. Such
financial statements present fairly, in all material respects, the financial
condition and results of operations and cash flows of CHL and its consolidated
subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.
(c) Since December 31, 2003, there has been no material adverse
change in the business, assets, operations or condition, financial or otherwise,
of CFC and its subsidiaries, taken as a whole, or CHL and its subsidiaries,
taken as a whole.
SECTION 3.05. Properties. (a) Each of CFC and its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes. None of such property is
subject to any Lien except as permitted by Section 6.02.
(b) Each of CFC and its Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by CFC 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 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits, investigations or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of CFC, threatened
against or affecting CFC or any of its Subsidiaries which (i) are reasonably
likely, individually or in the aggregate, to result in a Material Adverse Effect
(other than the Disclosed Matters) or (ii) involve this Agreement, any of the
other Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither CFC 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.
(c) Since the date of this Agreement, there has been no change in
the status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of CFC, CHL
and their respective subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither CFC nor
any of its Subsidiaries is (a) an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940 or (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of CFC, CHL and their respective
subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which CFC, CHL or any such subsidiary, as
applicable, has set aside on its books adequate reserves to the extent required
by GAAP or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $150,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $150,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. Each of CFC and CHL has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
it or any of its subsidiaries is subject, and all other matters known to it,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other information furnished
by or on behalf of CFC or CHL to the Managing Administrative Agent or any Lender
in connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, each of CFC and CHL represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
SECTION 3.12. Federal Regulations. No part of the proceeds of any
Loans will be used for "buying" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
as now and from time to time hereafter in effect or for any purpose that
violates the provisions of the Regulations of the Board. If requested by any
Lender or the Managing Administrative Agent, CFC will furnish to the Managing
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable,
referred to in Regulation U of the Board.
SECTION 3.13. Subsidiaries. Except as disclosed to the Managing
Administrative Agent by CFC and CHL in writing from time to time after the
Effective Date, (a) Schedule 3.13 sets forth the name and jurisdiction of
incorporation of each Material Subsidiary and, as to each such Material
Subsidiary, the percentage of each class of Equity Interests owned by the
Borrower and (b) there are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options
granted to employees or directors and directors' qualifying shares) of any
nature relating to any Equity Interests of the Borrower or any Material
Subsidiary, except as created by the Loan Documents.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.02):
(a) The Managing Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to
the Managing Administrative Agent (which may include telecopy transmission
of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
(b) The Managing Administrative Agent shall have received a
favorable written opinion (addressed to the Managing Administrative Agent
and the Lenders and dated the Effective Date) of ▇▇▇▇▇ ▇. Bow, Managing
Director, General Counsel, Corporate and Securities, and Corporate
Secretary of CFC and CHL, substantially in the form of Exhibit C, and
covering such other matters relating to CFC, CHL, this Agreement, the
other Loan Documents or the Transactions as the Required Lenders shall
reasonably request.
(c) The Managing Administrative Agent shall have received a closing
certificate in the form of Exhibit A from each of CFC and CHL and such
other documents and certificates as the Managing Administrative Agent or
its counsel may reasonably request relating to the organization, existence
and good standing of CFC and CHL, the authorization of the Transactions
and any other legal matters relating to CFC and CHL, this Agreement, the
other Loan Documents or the Transactions, all in form and substance
satisfactory to the Managing Administrative Agent and its counsel.
(d) The Managing Administrative Agent shall have received evidence
satisfactory to it that the Existing Credit Agreement and the commitments
thereunder shall have been terminated and all amounts thereunder
(including accrued interest and fees) shall have been paid in full.
(e) The Managing Administrative Agent, the Administrative Agent and
the Lenders shall have received all fees and other amounts due and payable
to such parties on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
The Managing Administrative Agent shall notify the Borrower and the Lenders of
the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.02) at or prior to 3:00 p.m., New
York City time, on May 31, 2004 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement (other than the representation and warranty set forth in
Section 3.04(c)) shall be true and correct on and as of the date of such
Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default or Event of Default shall have occurred and be
continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, each of CFC and CHL covenants and agrees with the Lenders
that:
SECTION 5.01. Financial Statements; Ratings Change and Other
Information. CFC will furnish to the Managing Administrative Agent and each
Lender:
(a) within 90 days after the end of each fiscal year of CFC,
(i) the audited consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows
of CFC and its subsidiaries as of the end of and for such
year, setting forth the figures as of the end of and for the
previous fiscal year in comparative form, which consolidated
financial statements shall be reported on by KPMG LLP or other
independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception
and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial
statements present fairly in all material respects the
financial condition and results of operations of CFC and its
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(ii) the consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows
of CHL and its subsidiaries as of the end of and for such
year, which consolidated financial statements shall be
certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and
results of operations of CHL and its subsidiaries on a
consolidated basis in accordance with GAAP consistently
applied subject to the absence of footnotes; and
(iii) the unaudited consolidating balance sheet and
related statement of operations of CFC and its Subsidiaries as
of the end of and for such year, certified by one of its
Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of
CFC and its subsidiaries on a consolidating basis in
accordance with GAAP consistently applied subject to the
absence of footnotes;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of CFC,
(i) the consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows
of each of CFC and its Subsidiaries and CHL and its
subsidiaries as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in
the case of CFC and its Subsidiaries the figures for the
corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year in
comparative form, all certified by one of its Financial
Officers as presenting fairly in all material respects the
financial condition and results of operations of CFC and its
Subsidiaries or CHL and its subsidiaries, as the case may be,
on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the
absence of footnotes; and
(ii) the consolidating balance sheet and related
statement of operations of CFC and its Subsidiaries as of the
end and for such fiscal quarter and the then elapsed portion
of the fiscal year, certified by one of its Financial Officers
as presenting fairly in all material respects the financial
condition and results of operations of CFC and its
Subsidiaries, on a consolidating basis in accordance with GAAP
consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of CFC (i)
certifying as to whether a Default or Event of Default has occurred and,
if a Default or Event of Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto,
(ii) setting forth the Consolidated Net Worth of each of CFC and CHL and
the respective requirements of Section 6.01 therefor and (iii) stating
whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section
3.04 and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies of all
periodic and current reports filed on Forms 10-K, 10-Q and 8-K (or
successor forms), all proxy statements and
all registration statements (other than those filed on Form S-8) filed by
CFC or any Subsidiary with the SEC or with any national securities
exchange, or distributed by CFC to its shareholders generally, as the case
may be;
(e) promptly after ▇▇▇▇▇'▇ or S&P shall have announced a change in
the rating established or deemed to have been established for the Index
Debt, written notice of such rating change; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of CFC,
CHL or any of their respective subsidiaries, or compliance with the terms
of this Agreement or any of the other Loan Documents, as the Managing
Administrative Agent or any Lender may reasonably request.
Any delivery required to be made pursuant to Section 5.01(a), (b) or (d) shall
be deemed to have been made on the date on which CFC posts such delivery on the
Internet at the website of CFC or when such delivery is posted on the SEC's
website on the Internet at ▇▇▇.▇▇▇.▇▇▇; provided that with respect to any
delivery required to be made pursuant to Section 5.01(a) or (b), CFC shall have
given notice (including electronic notice) of any such posting to the Lenders,
which notice shall include a link to the applicable website to which such
posting was made; provided, further, that CFC shall deliver paper copies of any
delivery referred to in Section 5.01(a) or (b) to any Lender that requests CFC
to deliver such paper copies until notice to cease delivering such paper copies
is given by such Lender.
SECTION 5.02. Notices of Material Events. CFC will furnish to the
Managing Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
CFC, CHL or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its subsidiaries in an aggregate
amount exceeding $100,000,000;
(d) notice from any rating agency concerning a negative change in
any credit rating previously accorded CFC or CHL by such rating agency or
informing CFC or CHL that it has been placed on negative credit watch; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of CFC setting forth the details
of the event or development requiring such notice and any action taken or
proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. CFC will, and will
cause each of its Material Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to
the conduct of its business; provided that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. CFC will, and will cause each
of its Subsidiaries to, pay its obligations, including Tax liabilities, that, if
not paid, could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) CFC or such
subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. CFC will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 5.06. Hedging Program. CFC will maintain at all times a
Hedging Program for CFC and its Subsidiaries consistent with their Hedging
Program in effect at and as of the Effective Date with such changes thereto as
CFC reasonably deems appropriate for the conduct of its ongoing business.
SECTION 5.07. Books and Records; Inspection Rights. CFC will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. CFC will, and will
cause each of its Subsidiaries to, permit any representatives designated by the
Managing Administrative Agent or any Lender, upon reasonable prior notice, to
visit and inspect its properties, to examine and make extracts from its books
and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and as often
as reasonably requested.
SECTION 5.08. Compliance with Laws and Contractual Obligations. CFC
will, and will cause each of its Subsidiaries to, comply with all Contractual
Obligations and all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.09. Environmental Laws. CFC will, and will cause each of
its Subsidiaries to:
(a) Comply in all material respects with, and ensure compliance in
all material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply in all material respects
with and maintain, and ensure that all tenants and subtenants obtain and comply
in all material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws; and
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws.
SECTION 5.10. Use of Proceeds. The proceeds of the Loans will be
used only for general corporate purposes. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and
X.
SECTION 5.11. Compliance with Regulatory Requirements. CFC will, and
will cause each of its Subsidiaries which is a regulated bank to, comply with
all minimum capital ratios and guidelines, including, without limitation,
risk-based capital guidelines and capital leverage regulations (as may from time
to time be prescribed, by regulation or enforceable order of the Board, the OCC
or other federal or state regulatory authorities having jurisdiction over such
Person), and within such ratios and guidelines be "well-capitalized". CFC will
cause each of its Subsidiaries which is a registered broker-dealer to comply
with all material rules and regulations of the SEC, the New York Stock Exchange
and the National Association of Securities Dealers applicable to it (including
such rules and regulations dealing with net capital requirements).
ARTICLE VI
Financial and Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full, each of CFC and CHL, as applicable, covenants and agrees with the Lenders
that:
SECTION 6.01. Financial Condition Covenants. (a) CHL will not have a
Consolidated Net Worth at any time of less than $1,750,000,000 and (b) CFC will
not have a Consolidated Net Worth at any time of less than $5,600,000,000.
SECTION 6.02. Liens. CFC and CHL will not, and will not permit any
of their respective subsidiaries to, create, incur, assume or permit to exist
any Lien on any property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) Specified MSR Liens; and
(c) Liens not otherwise permitted by this Section which are incurred
by CFC, CHL and their subsidiaries in the ordinary course of their
hedging, financing and securitization activities (including Liens incurred
in connection with any type of hedging, financing or securitization
transaction undertaken in the ordinary course which reflects or represents
an evolution or extension of the practices conducted on the date hereof by
entities similar to CFC, CHL and their subsidiaries);
provided that in no event shall any Lien permitted pursuant to paragraph (a) or
(c) above (other than Permitted Encumbrances described in clauses (a), (b) or
(e) of the definition thereof) encumber mortgage servicing rights, intercompany
advances or stock and other equity interests issued by subsidiaries of CFC and
CHL.
SECTION 6.03. Fundamental Changes. (a) CFC and CHL will not, and
will not permit any of their respective subsidiaries to, merge into or
consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the stock of any
of its Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default or Event of Default shall have occurred and be
continuing (i) any Subsidiary may merge into CFC or CHL in a transaction in
which CFC or CHL, as applicable, is the surviving corporation, (ii) any
subsidiary of CFC or CHL may merge into any other subsidiary of CFC or CHL in a
transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary
may sell, transfer, lease or otherwise dispose of its assets to CFC, CHL or to a
Subsidiary, (iv) any Subsidiary may sell, transfer, lease or otherwise dispose
of its assets through transactions which are undertaken in the ordinary course
of its business or determined by CFC in good faith to be in the best interests
of CFC and its Subsidiaries, (v) any Subsidiary (other than CHL) may liquidate
or dissolve if CFC determines in good faith that such liquidation or dissolution
is in the best interests of CFC and its Subsidiaries and is not materially
disadvantageous to the Lenders and (vi) CFC or any Subsidiary may merge with a
Person that is not a wholly-owned Subsidiary immediately prior to such merger if
(A) permitted by Section 6.04 and (B) in the case of any merger involving CFC or
CHL, CFC or CHL, as applicable, is the surviving corporation.
(b) CFC will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any business other than businesses of the type
conducted by CFC and its Subsidiaries on the date of execution of this Agreement
and businesses reasonably related thereto.
SECTION 6.04. Acquisitions. CFC and CHL will not, and will not
permit any of their respective subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly-owned
Subsidiary prior to such merger) all or a majority of the Equity Interests or
voting Equity Interests of any Person that was not a wholly-owned subsidiary
prior thereto, or purchase or otherwise acquire (in one transaction or a series
of transactions) all or substantially all of the assets of any such Person or
all or substantially all of the assets of any such Person constituting a
business unit, unless at the time thereof and immediately after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing.
SECTION 6.05. Restricted Payments. CFC and CHL will not, and will
not permit any of their respective subsidiaries to, declare or make, or agree to
pay or make, directly or indirectly, any Restricted Payment if at the date of
the declaration thereof (either before or immediately after giving effect
thereto and to the payment thereof) a Default or Event of Default shall have
occurred and be continuing, except (a) CFC may declare and pay dividends with
respect to its Equity Interests payable solely in additional shares of its
common stock and (b) Subsidiaries may declare and pay dividends to CFC or
another wholly-owned Subsidiary of CFC.
SECTION 6.06. Indebtedness. CFC and CHL will not permit any of their
respective subsidiaries (other than, in the case of CFC, CHL) which owns
mortgage servicing rights to create, issue, incur, assume, become liable in
respect of or suffer to exist Indebtedness (other than Indebtedness owed to any
other Subsidiary) which, together with Indebtedness (other than Indebtedness
owed to any other Subsidiary) of all other such subsidiaries owning mortgage
servicing rights, exceeds $100,000,000 in aggregate principal amount.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur and
be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof (including as may result
from a notice given pursuant to Section 2.08(d)) or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any of the other Loan
Documents, when and as the same shall become due and payable, and such
failure shall continue unremedied until the later of (i) three Business
Days of the date when due and (ii) one Business Day after the receipt of
notice from the Managing Administrative Agent, the Administrative Agent or
any Lender;
(c) any representation or warranty made or deemed made by or on
behalf of CFC, CHL or any of their respective subsidiaries in or in
connection with this Agreement or any other Loan Document or any amendment
or modification hereof or thereof or waiver hereunder or thereunder, or in
any report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any other Loan
Document or any amendment or modification hereof or thereof or waiver
hereunder or thereunder, shall prove to have been inaccurate in any
material respect on or as of the date made or deemed made or furnished;
(d) CFC or CHL shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to
the Borrower's existence), 5.10 or 5.11 or in Article VI;
(e) CFC or CHL shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement or any other Loan
Document (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 30
days after notice thereof from the Managing Administrative Agent to the
Borrower (which notice will be given at the request of any Lender);
(f) CFC, CHL or any of their respective subsidiaries shall (i)
default in making any payment of any principal of any Material
Indebtedness (including any Guarantee Obligation, but excluding the Loans)
on the scheduled or original due date with respect thereto; or (ii)
default in (x) making any payment of any interest on any Material
Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Material Indebtedness was created
or (y) the observance or performance of any other agreement or condition
relating to any Material Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition under this clause (ii) is (A) to cause such Material
Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become
payable and remain unpaid or (B) to permit, and to have continuously
permitted during a period of at least 30 days, the holder or beneficiary
of such Material Indebtedness (or a trustee or agent on behalf of such
holder or beneficiary) to cause, with the giving of notice if required,
such Material Indebtedness to become due prior to its stated maturity or
(in the case of any such Material Indebtedness constituting a Guarantee
Obligation) to become payable and remain unpaid; provided, that this
clause (f) shall not apply to secured Material Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or
assets securing such Material Indebtedness; provided, further, that for
purposes of this paragraph (f), Material Indebtedness in respect of Hedge
and Repo Transactions shall be deemed to consist of the Aggregate Deficit
Amount;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of CFC, CHL or any of the Material Subsidiaries or its
debts, or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for CFC, CHL or
any of the Material Subsidiaries or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(h) CFC, CHL or any of the Material Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for it or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting
any of the foregoing;
(i) CFC, CHL or any of their respective subsidiaries shall become
unable, admit in writing its inability or fail generally to pay its debts
as they become due;
(j) one or more judgments for the payment of money in an aggregate
amount in excess of $100,000,000 and not fully covered by insurance shall
be rendered against CFC, CHL or any of their respective subsidiaries or
any combination thereof and the same shall remain undischarged for a
period of 60 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of CFC, CHL or any of their
respective subsidiaries to enforce any such judgment;
(k) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(l) the guarantee contained in Article VIII of this Agreement shall
cease, for any reason, to be in full force and effect or CFC or CHL or any
Affiliate of CFC or CHL shall so assert; or
(m) CFC shall cease to own 100% of the outstanding Equity Interests
of CHL;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Managing Administrative Agent may, and
at the request of the Required Lenders shall, by notice to the Borrower, take
either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower described in
clause (g) or (h) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
Guarantee
SECTION 8.01. Guarantee. (a) Each of CHL and CFC (each, a
"Guarantor") hereby unconditionally and irrevocably guarantees to the Managing
Administrative Agent, for the ratable benefit of the Lenders and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the other when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations of the other
hereunder (with respect to such Guarantor, the "Borrower Obligations").
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution
established in Section 8.02).
(c) Each Guarantor agrees that the Borrower Obligations may at any
time and from time to time exceed the amount of the liability of such Guarantor
hereunder without impairing the guarantee contained in this Article VIII or
affecting the rights and remedies of the Managing Administrative Agent or any
Lender hereunder.
(d) The guarantee contained in this Article VIII shall remain in
full force and effect until, subject to reinstatement pursuant to Section 8.05,
all the Borrower Obligations and the obligations of each Guarantor under the
guarantee contained in this Article VIII shall have been satisfied by payment in
full and the Commitments shall be terminated, notwithstanding that from time to
time during the term of this Agreement the Borrower may be free from any
Borrower Obligations.
(e) No payment made by the Borrower, a Guarantor, any other
guarantor or any other Person or received or collected by the Managing
Administrative Agent or any Lender from the Borrower, a Guarantor, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Borrower Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of the relevant
Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Borrower Obligations or any
payment received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until, subject to reinstatement pursuant
to Section 8.05, the Borrower Obligations are paid in full and the Commitments
are terminated.
SECTION 8.02. No Subrogation. Notwithstanding any payment made by a
Guarantor hereunder or any set-off or application of funds of such Guarantor by
the Managing Administrative Agent or any Lender, such Guarantor shall not be
entitled to be subrogated to any of the rights of the Managing Administrative
Agent or any Lender against the Borrower or any guarantee or right of offset
held by the Managing Administrative Agent or any Lender for the payment of the
Borrower Obligations, nor shall such Guarantor seek or be entitled to seek any
contribution or reimbursement from the
Borrower in respect of payments made by such Guarantor hereunder, until all
amounts owing to the Managing Administrative Agent and the Lenders on account of
the Borrower Obligations are indefeasibly paid in full and the Commitments are
terminated. If any amount shall be paid to such Guarantor on account of such
subrogation rights at any time when all of the Borrower Obligations shall not
have been indefeasibly paid in full, such amount shall be held by such Guarantor
in trust for the Managing Administrative Agent and the Lenders, segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Managing Administrative Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the Managing
Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Managing
Administrative Agent may determine.
SECTION 8.03. Amendments, etc. with respect to the Borrower
Obligations. Each Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against it and without notice to or
further assent by it, any demand for payment of any of the Borrower Obligations
made by the Managing Administrative Agent or any Lender may be rescinded by the
Managing Administrative Agent or such Lender and any of the Borrower Obligations
continued, and the Borrower Obligations, or the liability of any other Person
upon or for any part thereof, or any guarantee therefor or right of offset with
respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Managing Administrative Agent or any Lender, and this Agreement
and the other Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Managing Administrative Agent (or the Required Lenders
or all Lenders, as the case may be) may deem advisable from time to time, and
any guarantee or right of offset at any time held by the Managing Administrative
Agent or any Lender for the payment of the Borrower Obligations may be sold,
exchanged, waived, surrendered or released.
SECTION 8.04. Guarantee Absolute and Unconditional. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Borrower Obligations and notice of or proof of reliance by the Managing
Administrative Agent or any Lender upon the guarantee contained in this Article
VIII or acceptance of the guarantee contained in this Article VIII; the Borrower
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Article VIII; and all dealings between such
Guarantor and the Borrower, on the one hand, and the Managing Administrative
Agent and the Lenders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon the guarantee
contained in this Article VIII. Each Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Borrower or such Guarantor with respect to the Borrower Obligations. Each
Guarantor understands and agrees that the guarantee contained in this Article
VIII shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity or enforceability of this Agreement
or any other Loan Document, any of the Borrower Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Managing Administrative
Agent or any Lender, (b) any defense, set-off or counterclaim (other than a
defense of payment or performance) which may at any time be available to or be
asserted by the Borrower or any other Person against the Managing Administrative
Agent or any Lender, (c) any change in the corporate existence, structure or
ownership of the Borrower, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the Borrower or its assets or any resulting
release or discharge of any Obligation, (d) any law, regulation or order of any
jurisdiction, or any other event, affecting any term of any Obligation or any
Lender's rights with respect thereto or (e) any other circumstance whatsoever
(with or without notice to or knowledge of it) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Borrower
Obligations, or of such Guarantor under the guarantee contained in this Article
VIII, in bankruptcy or in any other instance. When making any demand hereunder
or otherwise pursuing its rights and remedies hereunder against a Guarantor, the
Managing Administrative Agent or any Lender may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such rights and
remedies as it may have against any other Person or against any other guarantee
for the Borrower Obligations or any right of offset with respect thereto, and
any failure by the Managing Administrative Agent or any Lender to make any such
demand, to pursue such other rights or remedies or to collect any payments from
any other Person or to realize upon any such guarantee or to exercise any such
right of offset, or any release of any other Person or any such guarantee or
right of offset, shall not relieve such Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Managing Administrative
Agent or any Lender against such Guarantor. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
SECTION 8.05. Reinstatement. The guarantee contained in this Article
VIII shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by the Managing
Administrative Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or any substantial part of its property, or otherwise,
all as though such payments had not been made.
SECTION 8.06. Payments. Each Guarantor hereby guarantees that
payments hereunder will be paid to the Managing Administrative Agent without
set-off or counterclaim in dollars at the office of the Managing Administrative
Agent specified in Section 2.17.
SECTION 8.07. Independent Obligations. The obligations of a
Guarantor under the guarantee contained in this Article VIII are independent of
the obligations of the Borrower, and a separate action or actions may be brought
and prosecuted against such Guarantor whether or not the Borrower is joined in
any such action or actions. Each Guarantor waives, to the fullest extent
permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof.
ARTICLE IX
The Agents
SECTION 9.01. Appointment. Each Lender hereby irrevocably designates
and appoints the Managing Administrative Agent as the agent of such Lender under
this Agreement and the other Loan Documents, and each Lender irrevocably
authorizes the Managing Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Managing Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Managing Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Managing
Administrative Agent.
SECTION 9.02. Delegation of Duties. The Managing Administrative
Agent may execute any of its duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The Managing
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.
SECTION 9.03. Exculpatory Provisions. Neither any Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any of CFC, CHL or their
subsidiaries or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents under or in connection
with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any of CFC, CHL or their
subsidiaries to perform its obligations hereunder or thereunder. The Agents
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any of CFC, CHL or their subsidiaries.
SECTION 9.04. Reliance by Managing Administrative Agent. The
Managing Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including counsel to CFC or CHL),
independent accountants and other experts selected by the Managing
Administrative Agent. The Managing Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Managing Administrative Agent. The Managing Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action (other than any liability
or expense which is found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its gross negligence or willful
misconduct). The Managing Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required Lenders (or,
if so specified by this Agreement, all Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Loans.
SECTION 9.05. Notice of Default. The Managing Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default unless the Managing Administrative Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Managing Administrative Agent receives such a
notice, the Managing Administrative Agent shall give notice thereof to the
Lenders. The Managing Administrative Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by the
Required Lenders (or, if so specified by this Agreement, all Lenders); provided
that unless and until the Managing Administrative Agent shall have received such
directions, the Managing Administrative Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Lenders.
SECTION 9.06. Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by any Agent hereafter
taken, including any review of the affairs of CFC, CHL or their subsidiaries or
any affiliate of CFC, CHL or their subsidiaries, shall be deemed to constitute
any representation or warranty by any Agent to any Lender. Each Lender
represents to the Agents that it has, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of CFC, CHL or their subsidiaries and their affiliates and made
its own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon any
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 analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of CFC, CHL, their subsidiaries and the
affiliates of CFC, CHL and their subsidiaries. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Managing Administrative Agent hereunder, the Managing Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of CFC, CHL, their
subsidiaries or any affiliate of CFC, CHL or their subsidiaries that may come
into the possession of the Managing Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
SECTION 9.07. Indemnification. The Lenders agree to indemnify each
Agent in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
SECTION 9.08. Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with CFC, CHL and their subsidiaries as though such Agent were
not an Agent. With respect to its Loans made or renewed by it, each Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include each Agent in its
individual capacity.
SECTION 9.09. Successor Managing Administrative Agent. The Managing
Administrative Agent may resign as Managing Administrative Agent upon 10 days'
notice to the Lenders and the Borrower. If the Managing Administrative Agent
shall resign as Managing Administrative Agent under this Agreement and the other
Loan Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an Event of
Default under Section 7(a), 7(b), 7(g) or 7(h) with respect to the Borrower
shall have occurred and be continuing) be subject to approval by the Borrower
(which approval shall not be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of the Managing
Administrative Agent, and the term "Managing Administrative Agent" shall mean
such successor agent effective upon such appointment and approval, and the
former Managing Administrative Agent's rights, powers and duties as Managing
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Managing Administrative Agent or any of the
parties to this Agreement or any holders of the Loans. If no successor agent has
accepted appointment as Managing Administrative Agent by the date that is 10
days following a retiring Managing Administrative Agent's notice of resignation,
the retiring Managing Administrative Agent's resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the
duties of the Managing Administrative Agent hereunder until such time, if any,
as the Required Lenders appoint a successor agent as provided for above. After
any retiring Managing Administrative Agent's resignation as Managing
Administrative Agent, the provisions of this Article IX shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Managing Administrative Agent under this Agreement and the other Loan Documents.
SECTION 9.10. Documentation Agents, Syndication Agent and
Administrative Agent. None of the Documentation Agents, the Syndication Agent or
the Administrative Agent shall have any duties or responsibilities hereunder in
their capacities as such.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to CFC or CHL, to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Chief Financial Officer (Telecopy No. (818)
225-4196), with a copy to the attention of its Chief Legal Officer
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇) at the same address;
(ii) if to the Managing Administrative Agent, to Royal Bank of
Canada, Agency Services Group, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇, 200 Bay
Street, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Attention:
Manager, Agency, (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(iii) if to any Swingline Lender or any other Lender, to it at its
address (or telecopy number) set forth in its Administrative
Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Managing Administrative Agent; provided that the foregoing shall
not apply to notices pursuant to Article II unless otherwise agreed by the
Managing Administrative Agent and the applicable Lender. The Managing
Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures
may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by the
Managing Administrative Agent or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Managing Administrative Agent and the Lenders hereunder are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan
shall not be construed as a waiver of any Default or Event of Default,
regardless of whether the Managing Administrative Agent or any Lender may have
had notice or knowledge of such Default or Event of Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified (other than
amendments and modifications made for the sole purpose of giving effect to any
increase in Commitments pursuant to Section 2.01(b) or made to Schedule 2.05 as
contemplated by the definition of "Swingline Lender" in Section 1.01) except
pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders or by the Borrower and the Managing Administrative
Agent with the consent of the Required Lenders; provided that no such agreement
shall (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan (other than in accordance with
Section 2.09) or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.17 in a manner that would alter the pro
rata sharing of payments required thereby, without the written consent of each
Lender, (v) release any Guarantor from its obligations set forth in Article VIII
without the written consent of each Lender or (vi) change any of the provisions
of this Section or the definition of "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to waive, amend
or modify any rights hereunder or make any determination or grant any consent
hereunder, without the written consent of each Lender; provided further that no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Managing Administrative Agent or any Swingline Lender hereunder without the
prior written consent of the Managing Administrative Agent or such Swingline
Lender, as the case may be.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Managing
Administrative Agent, the Administrative Agent and their respective Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Managing Administrative Agent and the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any amendments, modifications or waivers
of the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by
the Managing Administrative Agent, the Administrative Agent or any Lender,
including the fees, charges and disbursements of any counsel for the Managing
Administrative Agent, the Administrative Agent or any Lender, in connection with
the enforcement or protection of its rights in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or in
connection with the Loans made hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans.
(b) The Borrower shall indemnify the Managing Administrative Agent,
the Agents and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds thereof, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to any Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the applicable Swingline Lender
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the applicable Swingline Lender in its capacity as such. To the
extent that the Borrower fails to pay any amount required to be paid by it to
the Managing Administrative Agent or the Administrative Agent under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay the Managing
Administrative Agent or Administrative Agent in accordance with Section 9.07.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than 10 days after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder or under any of the other Loan Documents without the prior
written consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section. Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants (to the
extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Managing Administrative
Agent, the Administrative Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a Lender
or, if an Event of Default has occurred and is continuing, any other
assignee; and
(B) the Managing Administrative Agent and each Swingline
Lender, provided that no consent of the Managing Administrative Agent or
any Swingline Lender shall be required for an assignment of any Commitment
to an assignee that is a Lender with a Commitment immediately prior to
giving effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of
the assigning Lender's Commitment or Loans of any Class, the amount of the
Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Managing Administrative
Agent) shall not be less than $10,000,000 unless each of the Borrower and
the Managing Administrative Agent otherwise consent, provided that no such
consent of the Borrower shall be required if an Event of Default under
Article VII has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, provided that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of Competitive Loans;
(C) the parties to each assignment shall execute and deliver
to the Managing Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Managing Administrative Agent an Administrative Questionnaire.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 10.03). Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with
this Section 10.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Managing Administrative Agent, acting for this purpose as
an agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption 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 pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive, and
the Borrower, the Managing Administrative Agent, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph
(b)(ii)(C) of this Section and any written consent to such assignment required
by paragraph (b)(i) of this Section, the Managing Administrative Agent shall
accept such Assignment and Assumption and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the
Managing Administrative Agent, the Administrative Agent or the Swingline
Lenders, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided that (A) such Lender's obligations under this Agreement shall
remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the
Managing 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. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.14, 2.15
and 2.16 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each
Participant also shall be entitled to the benefits of Section 10.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.17(b)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender.
(d) Any Lender may at any time pledge, assign or grant a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge, assignment
or grant to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge, assignment or grant of a security interest;
provided that no such pledge, assignment or grant of a security interest shall
release a Lender from any of its obligations hereunder or substitute any such
pledge, assignee or grantee for such Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Managing Administrative Agent or any Lender
may have had notice or knowledge of any Default or Event of Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.14, 2.15, 2.16, 9.03 and
10.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the Managing
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Managing Administrative Agent and when the Managing
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Managing Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Managing Administrative
Agent and the Lenders agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory or self-regulatory authority, (c) to the
extent required by applicable laws or regulations (including the regulations of
any self-regulatory organization) or by any subpoena or similar legal process,
(d) to any other party to this Agreement, (e) in connection with the exercise of
any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Managing Administrative Agent or any Lender on a nonconfidential basis from
a source other than the Borrower. For the purposes of this Section,
"Information" means all information received from the Borrower, in connection
with the negotiation of or pursuant to this Agreement, relating to the Borrower
or its business, other than any such information that is available to the
Managing Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 10.13. USA PATRIOT Act. Each Lender hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required
to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
COUNTRYWIDE HOME LOANS, INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director and Treasurer
COUNTRYWIDE FINANCIAL CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director and Treasurer
ROYAL BANK OF CANADA, as Managing
Administrative Agent
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Manager, Agency
BARCLAYS BANK PLC, as Administrative
Agent and as a Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Associate Director
ROYAL BANK OF CANADA, as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Documentation Agent and as
a Lender
By /s/ Christian Jagenberg
---------------------------------------
Name: Christian Jagenberg
Title: SVP & Manager
By /s/ Yangling J. Si
---------------------------------------
Name: Yangling J. Si
Title: AVP
2
SOCIETE GENERALE, as a Documentation
Agent and as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
3
BNP PARIBAS, as Syndication Agent and as
a Lender
By /s/ Pierre-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: Pierre-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
4
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
6
CITICORP USA, INC., as a Lender
By /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
7
HSBC BANK USA, as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
8
▇▇▇▇▇▇ BROTHERS BANK, FSB, as a Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
9
THE ROYAL BANK OF SCOTLAND PLC, as a
Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
10
LLOYDS TSB BANK PLC,
as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇.▇. Tuck
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇
Title: Vice President
Financial Institutions, USA TO20
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Financial Institutions, USA BO59
▇▇
▇▇▇▇ ▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH, as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Title: Executive Director
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
12
MIZUHO CORPORATE BANK, LTD, as a Lender
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
13
US BANK, NATIONAL ASSOCIATION, as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
14
CALYON NEW YORK BRANCH, as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
15
BANK OF HAWAII, as a Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
16
FIFTH THIRD BANK, as a Lender
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: AVP-Relationship Manager
17