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Exhibit k.8
LIQUIDITY AGREEMENT
Dated as of _________ __, 2000
among
[SPV],
THE LIQUIDITY LENDERS PARTIES HERETO,
DEUTSCHE BANK AG, NEW YORK BRANCH
as Liquidity Agent,
and
DEUTSCHE BANK SECURITIES INC.
as Arranger and Syndication Agent
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LIQUIDITY AGREEMENT
LIQUIDITY AGREEMENT, dated as of _________ __, 2000, among
_________________, a Delaware limited liability company (hereinafter, together
with its successors and assigns, called the "Company"), the liquidity lenders
parties hereto (hereinafter each, together with its successors and assigns, a
"Liquidity Lender", and collectively, together with their successors and
assigns, the "Liquidity Lenders"), DEUTSCHE BANK AG, NEW YORK BRANCH, as agent
for the Liquidity Lenders (hereinafter, together with its successors and assigns
in such capacity, the "Liquidity Agent"), and DEUTSCHE BANK SECURITIES INC., as
arranger (in such capacity, the "Arranger") and syndication agent (in such
capacity, the "Syndication Agent").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue and sell its promissory
notes in the United States commercial paper market and lend the net proceeds
thereof to Nuveen Senior Income Fund (the "Borrower"), pursuant to the Credit
Agreement dated as of _________ __, 2000, among the Company, the Borrower and
Deutsche Bank AG, New York Branch, as Agent (as the same may be amended or
modified from time to time, the "Credit Agreement");
WHEREAS, the Company has made application to the Liquidity
Lenders for the commitment of the Liquidity Lenders to make loans in an
aggregate principal amount not to exceed $155,000,000 at any one time to the
Company, the proceeds of which shall be used to (i) make Advances (as defined in
the Credit Agreement) to the Borrower in accordance with the terms of the Credit
Agreement and (ii) make payments in respect of the Company's Commercial Paper
(as defined below); and
WHEREAS, subject to the terms and conditions set forth herein,
the Liquidity Lenders are willing to make loans to the Company.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 General. For all purposes of this Agreement,
except as otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement which definitions are
incorporated by reference herein.
SECTION 1.02 Definitions. As used herein the following terms
shall have the
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meanings herein specified and shall include in the singular number the plural
and in the plural number the singular:
"Advance Deficit" shall have the meaning specified in Section
3.02(a) hereof.
"Agent" shall mean Deutsche Bank AG, New York Branch in its
capacity as agent for the Company under the Credit Agreement.
"Aggregate CP Matured Value" shall mean, on any date, the sum
of the CP Matured Values of all Commercial Paper outstanding on such date.
"Agreement" shall mean this Liquidity Agreement as it may from
time to time be amended, supplemented or otherwise modified in accordance with
the terms hereof.
"Applicable Margin" shall mean: (a) with respect to Base Rate
Loans, 0% per annum, and (b) with respect to Eurodollar Rate Loans, 0.50% per
annum.
"Arranger" shall mean Deutsche Bank Securities Inc. in
its capacity as arranger under this Agreement.
"Available Liquidity Commitment" shall mean, as to any
Liquidity Lender at any time, an amount equal to the excess, if any, of (a) the
amount of such Liquidity Lender's Commitment over (b) the aggregate principal
amount of all Loans made by such Liquidity Lender then outstanding;
collectively, as to all the Liquidity Lenders, the "Available Liquidity
Commitments."
"Base Rate" shall mean, for any day, the rate per annum equal
to the higher of (a) the Federal Funds Rate for such day plus one-half of one
percent (.50%), and (b) the Prime Rate for such day. Any change in the Base Rate
due to a change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or Federal Funds Rate.
"Base Rate Loan" shall mean a Loan bearing interest at a
fluctuating rate determined by reference to the Base Rate.
"Benefited Liquidity Lender" shall have the meaning specified
in Section 10.11(b).
"Borrower" shall have the meaning specified in the first
Whereas clause of this Agreement.
"Borrowing" shall mean the incurrence of a Loan from the
Liquidity Lenders on a given date pursuant to Section 3.01 of this Agreement.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York or Illinois are
authorized or obligated by law or executive order to be closed.
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"Commercial Paper" or "Commercial Paper Note" shall mean the
short-term promissory notes of the Company issued for the purpose of funding or
maintaining Advances made to the Borrower.
"Commercial Paper Account" shall have the meaning specified in
Section 2.02 hereof.
"Commercial Paper Deficit" shall have the meaning specified in
Section 3.03(a) hereof.
"Company" shall have the meaning specified in the introductory
paragraph of this Agreement.
"CP Matured Value" shall mean, with respect to any commercial
paper, the sum of the Interest Component thereof plus the Principal Component
thereof.
"Credit Agreement" shall have the meaning specified in the
first Whereas clause of this Agreement.
"Credit Utilization" shall have the meaning specified in
Section 6.02 hereof.
"Default" shall mean an event which, upon the giving of notice
or the passage of time, or both, would become an Event of Default hereunder.
"Depositary" shall mean Bankers Trust Company, a New York
banking corporation, or such other banking institution headquartered in The City
of New York as the Company shall appoint, with the prior written consent of the
Required Liquidity Lenders, as issuing and paying agent for Commercial Paper
under the Depositary Agreement and as fiduciary for the holders of Commercial
Paper.
"Depositary Agreement" shall mean the Depositary Agreement
entered into by the Company and the Depositary substantially in the form set
forth in Exhibit B attached hereto, as the same at any time may be amended or
modified from time to time with the prior written consent of the Agent.
"Designated Liquidity Lender" shall mean a special purpose
corporation that is identified as such on the signature pages hereto next to the
caption "Designated Lender" as well as each special purpose corporation that (a)
shall have become a party to this Agreement pursuant to Section 10.05(g) and (b)
is not otherwise a Liquidity Lender.
"Designated Liquidity Lender Note" shall mean a promissory
note of the Company, substantially in the form of Exhibit G attached hereto,
evidencing the obligation of the Company to repay Loans made by a Designated
Liquidity Lender, and "Designated Liquidity Lender Notes" means any such
promissory notes issued hereunder.
"Designating Liquidity Lender" shall mean each Liquidity
Lender that is identified as such on the signature pages hereto next to the
caption "Designating Liquidity
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Lender" and immediately below the signature of its Designated Liquidity Lender
as well as each Liquidity Lender that shall designate a Designated Liquidity
Lender pursuant to Section 10.05(g) hereof.
"Designation Agreement" shall mean a designation agreement in
substantially the form of Exhibit H attached hereto, entered into by a Liquidity
Lender and a Designated Liquidity Lender and accepted by the Company and the
Liquidity Agent.
"Dollars" means the legal currency, at any relevant time
hereunder, of the United States of America.
"Effective Date" shall have the meaning specified in Section ]
6.01 hereof.
"Eurocurrency Reserve Requirements" shall mean for any day as
applied to a Eurodollar Rate Loan, the aggregate (without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on
such day, including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction with
respect thereto dealing with reserve requirements prescribed for Eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
such Board) maintained by a member bank of such System or bank subject to such
Governmental Authority.
"Eurodollar Base Rate" shall mean with respect to each day
during each Interest Period pertaining to a Eurodollar Rate Loan, the rate per
annum (rounded upwards, if necessary, to the nearest one-hundred-thousandth of
1%) equal to the rate that appears with respect to such Interest Period on the
Telerate Page 3750 (or such other page as may replace said page) as of 11:00
A.M., London time, two Working Days prior to the beginning of such Interest
Period. If for any reason such rate is not available, the term "Eurodollar Base
Rate" means, for any Eurodollar Rate Loan for any Interest Period, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Working Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Eurodollar Rate" shall mean, with respect to each day during
each Interest Period pertaining to a Eurodollar Rate Loan, a rate per annum
determined for such day in accordance with the following formula (rounded upward
to the nearest 1/100th of 1%):
Eurodollar Base Rate
-----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Rate Loan" shall mean a Loan bearing interest at a
fluctuating rate determined by reference to the Eurodollar Rate.
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"Event of Default" shall mean each of the Events of Default
specified in Section 8.01 hereof.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate charged to
the Liquidity Agent (in its individual capacity) on such day on such
transactions as determined by the Liquidity Agent.
"Financing Lease" shall mean any lease of property, real or
personal, the obligations of the lessee in respect of which are required in
accordance with the U.S. GAAP to be capitalized on a balance sheet of the
lessee.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Highest Short-Term Rating Category" shall mean (x) with
respect to Moodys, P-1, (y) with respect to Fitch, [F-1+] and (z) with respect
to S&P, [A-1+].
"Indemnified Liabilities" shall have the meaning set forth in
Section 10.04(b).
"Indemnified Parties" shall have the meaning set forth in
Section 10.04(b).
"Information" shall have the meaning set forth in Section
10.19.
"Interest Component" shall mean when used with respect to
Commercial Paper the portion of the face amount of Commercial Paper issued on a
discount basis representing the discount incurred in respect thereof.
"Interest Payment Date" shall mean (a) as to any Base Rate
Loan, the first day of each month, (b) as to any Eurodollar Rate Loan, the last
day of the applicable Interest Period, and, in each case, the day on which a
Loan becomes due and is payable in full and is paid or prepaid in full.
"Interest Period" shall mean with respect to any Eurodollar
Rate Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Rate Loans and ending one, two, three or six months thereafter, as
selected by (x) the Company in its Notice of Borrowing as provided in
Section 3.02 or its notice of conversion as provided in Section 5.05,
as the case may be or (y) by the Company, or the Depositary or the
Collateral Agent, in either case as
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attorney-in-fact for the Company, in a Notice of Borrowing as provided
in Section 3.03; provided that the Liquidity Agent and Liquidity
Lenders may consider requests by the Company to provide an initial
Interest Period of less than one month; and
(ii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Eurodollar
Rate Loan and ending one, two, three or six months thereafter, as
selected by the Company by irrevocable notice to the Liquidity Agent
not less than three Working Days prior to the last day of the then
current Interest Period with respect to such Eurodollar Rate Loan;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Rate
Loan would otherwise end on a day which is not a Working Day, such
Interest Period shall be extended to the next succeeding Working Day
unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Working Day;
(2) any Interest Period pertaining to a Eurodollar Rate Loan
that begins on the last Working Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Working
Day of a calendar month;
(3) any Interest Period that would otherwise end after the
Liquidity Termination Date shall end on the Liquidity Termination Date;
and
(4) the Company shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Rate Loan during an
Interest Period for such Loan.
"Lending Office" shall mean the lending office of each
Liquidity Lender, which may be a branch or affiliate of such Liquidity Lender,
by or through which the Loans are made hereunder and as notified to the
Liquidity Agent in writing by the Liquidity Lenders.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreements, any Financing Lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the UCC or comparable law of any jurisdiction
in respect of any of the foregoing).
"Liquidity Agent" shall have the meaning specified in the
introductory paragraph of this Agreement.
"Liquidity Bank" shall mean for any Designated Liquidity
Lender, at any date of
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determination, the collective reference to the financial institutions which at
such date are providing liquidity credit support facilities to or for the
account of such Designated Liquidity Lender to fund such Designated Liquidity
Lender's obligations hereunder or to support the securities, if any, issued by
such Designated Liquidity Lender to fund such obligations.
"Liquidity Commitment" shall mean the obligation of the
Liquidity Lenders to make Loans in a maximum principal amount at any one time
outstanding equal to [$155,000,000].
"Liquidity Commitment Fee Rate" shall mean 0.125% (12.5 basis
points) per annum.
"Liquidity Commitment Period" shall mean the period from and
including the Effective Date to but excluding the Liquidity Termination Date or
such earlier date as the Liquidity Commitments shall terminate as provided
herein.
"Liquidity Fee" shall have the meaning specified in Section
4.01.
"Liquidity Lender" shall have the meaning specified in the
introductory paragraph of this Agreement.
"Liquidity Termination Date" shall mean the later of (i)
__________, 2001 [364 days from the Effective Date] or, if said day is not a
Business Day, the Business Day next preceding such day and (ii) the last day of
any extension of such date pursuant to Section 4.03 hereof, or, if said day is
not a Business Day, the Business Day next preceding such day.
"Loan Notes" or "Notes" shall mean the Revolving Loan Notes
and the Refunding Loan Notes.
"Loans" shall mean the Revolving Loans and the Refunding
Loans.
"Manager" shall mean Global Securitization Services, LLC, a
limited liability company organized and existing under the laws of the State of
Delaware, as the Manager under the Management Agreement, dated as of ____, 2000,
between such Manager and the Company.
"Notice of Borrowing" shall have the meaning specified in
Section 3.02(a).
"Notice Office" shall mean the offices of the Liquidity Agent
at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ___________, or
such other offices as the Liquidity Agent may designate in writing to the
Company and the Liquidity Lenders.
"Payment Office" shall mean the account of the Liquidity Agent
at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ or such other office as the
Liquidity Agent may designate in writing to the Company and the Liquidity
Lenders.
"Percentage" shall mean for each Liquidity Lender the
percentage set forth opposite the name of such Liquidity Lender on the signature
pages hereto, as such percentage
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may be adjusted from time to time upon sale, transfer or assignment pursuant to
Section 3.14, Section 4.03(c) or Section 10.05 hereof.
"Permitted Liens" means (i) Liens for taxes not yet due or
which are being contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on the books of the
Company in conformity with U.S. GAAP and to the reasonable satisfaction of the
Liquidity Agent, (ii) Liens created under the Security Agreement and (iii)
restrictions on the transfer, assignment or other disposition of Permissible
Investments that arise under the documents relating to such Permissible
Investments.
"Prime Rate" shall mean the per annum rate of interest
established from time to time by the Liquidity Agent as its prime rate for
Dollar denominated loans, which rate may not be the lowest rate of interest
charged by the Liquidity Agent to its customers.
"Principal Component" shall mean, when used with respect to
each Commercial Paper Note, the excess of the face amount of such Commercial
Paper Note over the Interest Component thereof.
"Rating Agency" shall mean each credit rating agency that the
Company shall have requested to provide a credit rating with respect to the
Commercial Paper and which is then providing such a credit rating.
"Refunding Loan" shall mean a Loan made in accordance with
Section 3.03 hereof the proceeds of which are to be used by the Company to make
payments of its maturing Commercial Paper.
"Refunding Loan Note" shall have the meaning specified in
Section 3.05(c) hereof.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor thereto.
"Replacement Lender" shall have the meaning set forth in
Section 3.16(b).
"Required Liquidity Lenders" shall mean Liquidity Lenders
whose Percentages are, in the aggregate, equal to or more than 51% of all of the
Percentages.
"Restricted Payment" shall have the meaning specified in
Section 7.02.
"Revolving Loan" shall mean a Loan made in accordance with
Section 3.02 hereof.
"Revolving Loan Note" shall have the meaning specified in
Section 3.05(a) hereof.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc., a New York corporation, or any
successor thereto.
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"Syndication Agent" shall mean Deutsche Bank Securities Inc.
"Taxes" shall have the meaning specified in Section 3.11.
"Working Day" shall mean any Business Day on which dealings in
foreign currencies and exchange between banks may be carried on in the city
where the Eurodollar and foreign currency and exchange operations in respect of
the Liquidity Agent's Eurodollar Rate Loans are then being conducted.
"written" or "in writing" shall mean any form of written
communication or a communication by means of telex, telecopier device, telegraph
or cable.
ARTICLE II
COMMERCIAL PAPER OPERATIONS
SECTION 2.01 Issuance of Commercial Paper. (a) Subject to the
provisions of this Section 2.01 and Article VI hereof, so long as the Company
and the Depositary are not in receipt of instructions then in effect from the
Liquidity Agent, given in accordance with this Section 2.01(a), not to issue or
deliver Commercial Paper because (i) the Company shall have terminated the
Liquidity Commitment hereunder pursuant to Section 4.02 hereof, or (ii) any of
the conditions specified in clauses (d) or (e) of Section 6.02 hereof are not
satisfied, or (iii) the issuance of Commercial Paper is prohibited by the
provisions of Section 5.03 hereof, or (iv) the rating by any Rating Agency on
the Commercial Paper shall be withdrawn or reduced below the Highest Short-Term
Rating Category of such Rating Agency (provided that if such reduction or
withdrawal occurs after the withdrawal or downgrading of a Liquidity Lender's
rating by any Rating Agency, the Company shall not be prohibited from issuing
Commercial Paper unless the Company shall not have replaced such downgraded
Liquidity Lender or reduced such downgraded Liquidity Lender's Percentage of the
Liquidity Commitment pursuant to Section 3.14 hereof, resulting in the
Commercial Paper being rated in the Highest Short-Term Rating Category of each
Rating Agency by the ninetieth day after the first date on which such rating of
a Liquidity Lender was withdrawn or downgraded) or (v) any of the conditions set
forth in clauses (a) or (b) of Section 6.02 hereof has not been satisfied, the
Company shall have the right from time to time prior to the Liquidity
Termination Date, and from time to time on and after the Effective Date, to
issue and sell Commercial Paper pursuant to this Agreement and the Depositary
Agreement. Any instructions from the Liquidity Agent to the Company and the
Depositary in accordance with this Section 2.01(a) shall specify one or more of
the events described in clauses (i) through (v) as being the reason(s) to cease
issuing and delivering Commercial Paper. The Liquidity Agent agrees that it
shall instruct the Company and the Depositary not to issue and sell Commercial
Paper if there shall have occurred one or more of the events described in
clauses (i) through (iii) of this Section 2.01(a). If the Liquidity Agent shall,
as provided in this Section 2.01(a), instruct the Company and the Depositary not
to issue or deliver Commercial Paper, the Company shall not thereafter issue or
sell any Commercial Paper. Concurrently with the giving of any such instructions
to the Company and the Depositary, the Liquidity Agent shall give notice thereof
to the Agent, each Rating Agency and each Dealer, but
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failure to do so shall not impair the effect of such instructions.
(b) The Company agrees that each Commercial Paper Note shall
(i) be in the form of Exhibit A or Exhibit B to the Depositary Agreement and be
completed in accordance with this Agreement and the Depositary Agreement, (ii)
be dated the date of issuance thereof, (iii) be made payable to the order of a
named payee or bearer, (iv) have a maturity date which shall not be later than
the fifth day prior to the Liquidity Termination Date in effect on the date of
issuance thereof, (v) be issued on a discount basis, and (vi) be in a face
amount of $250,000 or an integral multiple of $1,000 in excess of $250,000;
provided that (1) no issuance of Commercial Paper shall be made if, after giving
effect to such issuance and the use of the proceeds thereof, the sum of the
Aggregate CP Matured Value and the outstanding principal amount of all Loans
hereunder would exceed the amount of the Liquidity Commitment prior to such
issuance; and (2) no Commercial Paper shall have a maturity date later than the
180th day next succeeding the date of issuance of such Commercial Paper. Subject
to the provisions of the Depositary Agreement, all Commercial Paper shall be
delivered and issued against payment therefor in collected funds which are
immediately available on the date of issuance, and otherwise in accordance with
the terms of this Agreement and the Depositary Agreement.
SECTION 2.02 Commercial Paper Account; Payment of Commercial
Paper. Pursuant to the Depositary Agreement, the Depositary shall establish with
its Corporate Trust and Agency Group in New York a segregated trust account for
the exclusive benefit of the holders of the outstanding Commercial Paper (said
account being referred to herein and in the Depositary Agreement as the
"Commercial Paper Account"), over which the Depositary shall have exclusive
control and sole right of withdrawal. Proceeds of the sale of Commercial Paper
shall be deposited in the Commercial Paper Account only to the extent necessary
to pay matured and concurrently maturing Commercial Paper, whether or not
presented to the Depositary for payment; otherwise proceeds of the sale of
Commercial Paper shall be applied to the payment of any outstanding Loans to the
extent thereof and the balance shall be transferred to the Lender's Account, in
each case solely to the extent directed by the Collateral Agent.
ARTICLE III
REVOLVING CREDIT
SECTION 3.01 The Revolving Loans and the Refunding Loans. (a)
Subject to and upon the terms and conditions herein set forth, each Liquidity
Lender severally agrees from time to time on a revolving basis prior to the
Liquidity Termination Date, to make Revolving Loans and Refunding Loans to the
Company, which Revolving Loans and Refunding Loans may be repaid and reborrowed
in accordance with the provisions hereof and shall be made by the Liquidity
Lenders pro rata on the basis of their respective Percentages.
(b) No Liquidity Lender shall be obligated to make any Loan to
the Company if, and to the extent that, after giving effect to such Loan, the
aggregate principal amount of Loans made by such Liquidity Lender would exceed
such Liquidity Lender's Percentage of the Liquidity Commitment.
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SECTION 3.02 Revolving Loans. (a) If, on any Business Day on which the
Company has been requested to make an Advance under the Credit Agreement, the
Company is unable to issue Commercial Paper in an aggregate net amount
sufficient to make such Advance (the excess of the amount required to make such
Advance over the net amount obtained by the issuance of Commercial Paper on such
day, an "Advance Deficit"), the Company may request a Borrowing consisting of
Revolving Loans in an aggregate principal amount equal to the excess of (x) the
Advance Deficit over (y) amounts in the Lender's Account available to make such
Advance, by giving the Liquidity Agent at the Notice Office written notice or
telephonic notice (confirmed in writing promptly thereafter) of such Borrowing
(each a "Notice of Borrowing") no later than the time specified in the next
sentence. A written or telephonic Notice of Borrowing shall be received by the
Liquidity Agent no later than (x) 12:00 p.m. (New York City time) not less than
three Working Days preceding the date of the requested Revolving Loans, in the
case of Eurodollar Rate Loans and (y) 12:30 p.m. (New York City time) on the
date of the requested Revolving Loans, in the case of Base Rate Loans. The
Liquidity Agent shall promptly give each Liquidity Lender telephonic notice
(confirmed in writing promptly thereafter) of such Notice of Borrowing. Each
such Notice of Borrowing shall specify (1) whether the requested Revolving Loans
are Eurodollar Rate Loans or Base Rate Loans, (2) the principal amount the
Company desires to borrow hereunder, which shall be no greater than the entire
unused portion of the Liquidity Commitment, (3) the date of borrowing (which
shall be a Business Day , in the case of Base Rate Loans, or a Working Day, in
the case of Eurodollar Rate Loans) and (4) in the case of Eurodollar Rate Loans,
the Interest Period applicable thereto. Subject to the limitations imposed by
Section 3.01(b) and Section 6.02 hereof, the Liquidity Lenders shall make
Revolving Loans in an aggregate principal amount equal to the amount requested
in such Notice of Borrowing.
(b) Each Revolving Loan shall mature on the earlier of (i) the
Liquidity Termination Date or (ii) acceleration following the occurrence of an
Event of Default.
SECTION 3.03 Refunding Loans. (a) If, on any Business Day that
Commercial Paper matures, the Company is unable to issue additional Commercial
Paper in an aggregate net amount sufficient to repay in full all Commercial
Paper maturing on such day (the excess of the amount required to pay in full all
Commercial Paper maturing on such day over the net amount obtained by the
issuance of Commercial Paper on such day, a "Commercial Paper Deficit"), the
Liquidity Lenders shall, upon the request of the Company, or the Depositary or
the Collateral Agent, in either case as attorney-in-fact for the Company, in
accordance with Section 3.03(b) hereof, and subject to the limitations imposed
by Section 3.01(b) and Section 6.03 hereof, make Refunding Loans in an aggregate
principal amount equal to the excess of (x) the Commercial Paper Deficit over
(y) the sum of the aggregate amount, if any, applied or to be applied on such
Business Day to the Commercial Paper Deficit from disbursements with respect to
such maturing Commercial Paper from the Commercial Paper Account and amounts in
the Lender's Account, in each case designated for payment of the maturing
Commercial Paper.
(b) The Company, or the Depositary or the Collateral Agent, in
either case, as attorney-in-fact for the Company, shall give the Liquidity Agent
at the Notice Office written or telephonic Notice of Borrowing (confirmed in
writing promptly thereafter) specifying (1) that the requested Refunding Loans
are Base Rate Loans, (2) the aggregate principal amount of the
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Refunding Loans requested pursuant to Section 3.03(a),which shall be no greater
than the entire unused portion of the Liquidity Commitment, and (3) the date of
the borrowing (which shall be a Business Day). A written or telephonic Notice of
Borrowing shall be received by the Liquidity Agent no later than 1:00 p.m. (New
York City time) on the borrowing date of the requested Refunding Loans. The
Liquidity Agent will promptly give each Liquidity Lender telephonic notice
(confirmed in writing promptly thereafter) of such request. If such written
telephonic notice is received by the Liquidity Agent prior to the time specified
in the preceding sentence, the requested Refunding Loans will be made on the
requested Business Day, pro rata by the Liquidity Lenders in accordance with
their respective Percentages. If such telephonic notice is not received prior to
the time specified above, the requested Refunding Loans will be made pro rata by
the Liquidity Lenders in accordance with their respective Percentages on the
Business Day next succeeding the Business Day listed as the borrowing date in
the Notice of Borrowing.
(c) Each Refunding Loan shall mature on the earlier of (i)
Liquidity Termination Date or (ii) acceleration following the occurrence of an
Event of Default.
SECTION 3.04 Disbursement of Funds. (a) Not later than 3:30
p.m. (New York City time) on the date specified in each Notice of Borrowing for
a Revolving Loan, each Liquidity Lender will make available in freely
transferable U.S. dollars and in immediately available funds its Percentage of
the Revolving Loans required to be made on such date at the Payment Office of
the Liquidity Agent. The Liquidity Agent will remit the aggregate of the amounts
so made available by the Liquidity Lenders to the Borrower Account, on the
Business Day such amounts are received.
(b) Not later than 3:00 p.m. (New York City time) on the date
for a Refunding Loan, each Liquidity Lender will make available in freely
transferable U.S. dollars and in immediately available funds its Percentage of
the Refunding Loans required to be made on such date at the Payment Office of
the Liquidity Agent. The Liquidity Agent will remit the aggregate amount of such
funds made available by the Liquidity Lenders to the Commercial Paper Account on
the Business Day such amount is received.
(c) In the event that any Liquidity Lender shall not fund a
Loan as described in Section 3.04(b), then the Liquidity Agent shall notify each
of the other Liquidity Lenders which are committed to lend on such day not later
than 3:30 p.m. (New York City time) on such Business Day, and each of such other
Liquidity Lenders shall, before 4:30 p.m. (New York City time) on such Business
Day, make available to the Liquidity Agent in immediately available funds, a
Refunding Loan in a principal amount equal to the lesser of (i) such un-funded
amount multiplied by a fraction, the numerator of which is the commitment of
such Liquidity Lender and the denominator of which is the aggregate commitments
with respect to the Liquidity Lenders committed to lend on such day (less the
commitments of the non-performing Liquidity Lenders) and (ii) the Available
Liquidity Commitment of such Liquidity Lender. After the Liquidity Agent's
receipt of such funds, the Liquidity Agent will transfer such funds to the
Commercial Paper Account. If the Liquidity Lender which shall have so failed to
fund shall subsequently pay such amount, the Liquidity Agent shall apply such
amount to repay the additional Refunding Loans made by the other Liquidity
Lenders pursuant to such subsequent notice from the Liquidity Agent.
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(d) In the event that any Liquidity Lender shall not fund a
Loan as described in Section 3.04(a), Section 3.04(b) or Section 3.04(c), the
Liquidity Agent shall have no obligation to fund such Liquidity Lender's pro
rata share of such Loan. Unless the Liquidity Agent shall have received notice
from a Liquidity Lender prior to the time such Liquidity Lender is required to
make funds available to the Liquidity Agent pursuant to Section 3.04(a), Section
3.04(b) or Section 3.04(c), as the case may be, that such Liquidity Lender will
not make available to the Liquidity Agent such Liquidity Lender's pro rata share
of such payment, the Liquidity Agent may (but in no event shall be required to)
assume that such Liquidity Lender has made such pro rata share available to the
Liquidity Agent on the date of such payment in accordance with Section 3.04(a),
Section 3.04(b) or Section 3.04(c), as the case may be, and the Liquidity Agent
may (but in no event shall be required to), in reliance upon such assumption,
make such payment as provided for in this Section 3.04(d). If and to the extent
such Liquidity Lender shall not have so made such pro rata share of such payment
available to the Liquidity Agent, such Liquidity Lender irrevocably and
unconditionally agrees to repay to the Liquidity Agent, forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such payment is made by the Liquidity Agent until the date such amount is repaid
to the Liquidity Agent, at a rate per annum equal to the greater of the Federal
Funds Rate and the rate determined by the Liquidity Agent in accordance with
banking industry rules on interbank compensation.
SECTION 3.05 The Loan Notes. (a) The Company's obligation to
pay the principal of and interest on each Revolving Loan made by each Liquidity
Lender shall be evidenced by a single note of the Company with respect to each
such Liquidity Lender (each, a "Revolving Loan Note" and collectively, the
"Revolving Loan Notes") which shall: (1) be dated the Effective Date; (2)
collectively be in an aggregate principal amount equal to the Liquidity
Commitment and individually be in the stated principal amount equal to such
Liquidity Lender's Percentage of the Liquidity Commitment; (3) mature on the
Liquidity Termination Date; (4) bear interest as provided in Section 3.06; (5)
be payable to the order of such Liquidity Lender; (6) be entitled to the
benefits of this Agreement and the Security Agreement; and (7) be substantially
in the form of Exhibit A-1 to this Agreement with blanks appropriately completed
in conformity herewith. Each Liquidity Lender shall, and is hereby authorized
to, make a notation on the schedule attached to its Revolving Loan Note of the
date and the amount of such Revolving Loan and the date and amount of the
payment of principal thereon and, prior to any transfer of its Revolving Loan
Note, such Liquidity Lender shall endorse the outstanding principal amount of
such Revolving Loan Note on the schedule attached thereto; provided, however,
that failure to make such notation shall not adversely affect such Liquidity
Lender's rights with respect to any Revolving Loan.
(b) Although each Revolving Loan Note shall be dated the
Effective Date, interest in respect thereof shall be payable only for the
periods during which Revolving Loans are outstanding thereunder. In addition,
although the stated principal amount of each Liquidity Lender's Revolving Loan
Note shall be equal to such Liquidity Lender's Percentage of the Liquidity
Commitment, such Revolving Loan Note shall be enforceable with respect to the
Company's obligation to pay the principal thereof only to the extent of the
unpaid principal amount of the Revolving Loans outstanding thereunder at the
time such enforcement shall be
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sought.
(c) The Company's obligation to pay the principal of and
interest on the Refunding Loans made by each Liquidity Lender shall be evidenced
by a single note of the Company with respect to each such Liquidity Lender
(each, a "Refunding Loan Note" and collectively, the "Refunding Loan Notes")
which shall: (1) be dated the Effective Date; (2) collectively be in an
aggregate principal amount equal to the Liquidity Commitment and individually be
in the stated principal amount equal to such Liquidity Lender's Percentage of
the Liquidity Commitment; (3) mature on the Liquidity Termination Date; (4) bear
interest as provided in Section 3.06; (5) be payable to the order of such
Liquidity Lender; (6) be entitled to the benefits of this Agreement and the
Security Agreement; and (7) be substantially in the form of Exhibit A-2 to this
Agreement with blanks appropriately completed in conformity herewith. Each
Liquidity Lender shall, and is hereby authorized to, make a notation on the
schedule attached to its Refunding Loan Note of the date and amount of such
Refunding Loan and the date and amount of the payment of principal thereon and,
prior to any transfer of its Refunding Loan Note, such Liquidity Lender shall
endorse the outstanding principal amount of such Refunding Loan Note on the
schedule attached thereto; provided, however, that failure to make such notation
shall not adversely affect such Liquidity Lender's rights with respect to the
Refunding Loans.
(d) Although each Refunding Loan Note shall be dated the
Effective Date, interest in respect thereof shall be payable only for the
periods during which Refunding Loans are outstanding thereunder. In addition,
although the stated principal amount of each Liquidity Lender's Refunding Loan
Note shall be equal to such Liquidity Lender's Percentage of the Liquidity
Commitment, each Refunding Loan Note shall be enforceable with respect to the
Company's obligation to pay the principal thereof only to the extent of the
unpaid principal amount of the Refunding Loans outstanding thereunder at the
time such enforcement shall be sought.
SECTION 3.06 Interest Rates and Payment Dates. (a) Each
Eurodollar Rate Loan shall bear interest for each day during each Interest
Period (including the first day but excluding the last day) with respect thereto
at a rate per annum equal to the Eurodollar Rate determined for such day plus
the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(c) If (i) the Asset Coverage Ratio is less than 300% or (ii) all or a portion
of the principal amount of any Loan or any interest payable on the Loans shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), then in the case of clause (i) for so long as the Asset Coverage
Ratio is less than 300%, the Loans and, in the case of clause (ii) from the date
of such nonpayment until such amount is paid in full, such overdue amount, shall
bear interest at a rate per annum which is equal to the greater of (x) the Base
Rate plus 2%, and (y) the rate which is 2% in excess of the rate then applicable
to the relevant Loan.
(d) Interest on each Eurodollar Rate Loan and Base Rate Loan
shall be payable in
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arrears on each Interest Payment Date therefor, provided, in each case, that
interest accruing pursuant to subsection (c) of this Section shall be payable on
demand.
SECTION 3.07 Computation of Interest and Fees. (a) Interest on
Base Rate Loans shall be calculated on the basis of a 365-day year for the
actual days elapsed. Interest on Eurodollar Rate Loans and the Liquidity Fee
payable pursuant to Section 4.01 shall be calculated on the basis of a 360-day
year for the actual days elapsed. The Liquidity Agent shall as soon as
practicable notify the Company and the Liquidity Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change in the
Base Rate becomes effective or such change in the Eurocurrency Reserve
Requirements becomes effective, as the case may be. The Liquidity Agent shall as
soon as practicable notify the Company and the Liquidity Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Liquidity
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Liquidity Lenders in the absence of manifest
error. The Liquidity Agent shall, at the request of the Company, deliver to the
Company a statement showing the quotations used by the Liquidity Agent in
determining any interest rate pursuant to Section 3.06(a) and the calculations
made by the Liquidity Agent in determining any interest rate pursuant to Section
3.06(b).
SECTION 3.08 Inability to Determine Interest Rate. In the
event that prior to the first day of any Interest Period the Liquidity Agent
shall have determined (which determination shall be conclusive and binding upon
the Company) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, (x) any Eurodollar Rate Loan requested to be made on
the first day of such Interest Period shall be made as Base Rate Loan and (y)
any Base Rate Loans that were to have been converted on the first day of such
Interest Period to Eurodollar Rate Loans shall be converted to or continued as
Base Rate Loans. Until such determination has been withdrawn by the Liquidity
Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor
shall the Company have the right to convert Base Rate Loans to Eurodollar Rate
Loans.
SECTION 3.09 Illegality. Notwithstanding any other provision
herein, if any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Liquidity Lender or Lending
Office to make or maintain Eurodollar Loans as contemplated by this Agreement,
(a) the commitment of such Liquidity Lender hereunder to make Eurodollar Loans,
continue Eurodollar Loans as such and convert Base Rate Loans to Eurodollar
Loans shall forthwith be suspended until such time as the circumstances giving
rise to such suspension are no longer applicable and (b) the Loans of such
Liquidity Lender or Lending Office then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Base Rate Loans on the respective last days
of the then current Interest Periods with respect to such Loans or within such
earlier period as required by law. If any such conversion of a Eurodollar Loan
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the Company shall pay to such Liquidity Lender such
amounts, if any, as may be required pursuant to Section 3.12.
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SECTION 3.10 Requirements of Law. (a) In the event that any
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Liquidity Lender with any request or directive (whether or
not having the force of law but, if not having the force of law, generally
applicable to and complied with by banks of the same general type as such
Liquidity Lender in the relevant jurisdiction) from any central bank or other
Governmental Authority made subsequent to the Closing Date:
(i) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Liquidity Lender or Lending
Office which is not otherwise included in the determination of the
Eurodollar Rate hereunder, or
(ii) shall impose on such Liquidity Lender or Lending Office
any other condition; and the result of any of the foregoing is to
increase the cost to such Liquidity Lender or Lending Office, by an
amount which such Liquidity Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or to
reduce any amount receivable hereunder in respect thereof then, in any
such case, the Company shall promptly pay such Liquidity Lender or
Lending Office, upon its demand, any additional amounts necessary to
compensate such Liquidity Lender for such increased cost or reduced
amount receivable. If any Liquidity Lender or any Lending Office
becomes entitled to claim any additional amounts pursuant to this
subsection, it shall promptly notify the Company, through the Liquidity
Agent, of the event by reason of which it has become so entitled. A
certificate as to any additional amounts payable pursuant to this
subsection submitted by such Liquidity Lender or Lending Office,
through the Liquidity Agent, to the Company shall be prima facie
evidence of the accuracy of the information so recorded. This covenant
shall survive the termination of this Agreement and the payment of the
Notes and all other amounts payable hereunder for one year.
(b) If, after the date of this Agreement, the introduction of
any applicable law, rule, regulation or guideline regarding capital adequacy, or
any change therein or any change in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation or administration
thereof, affects the amount of capital required or expected to be maintained by
any Liquidity Lender or any corporation controlling any Liquidity Lender, and
such Liquidity Lender (taking into consideration such Liquidity Lender's or such
corporation's policies with respect to capital adequacy) determines that the
amount of capital maintained by such Liquidity Lender or such corporation which
is attributable to or based upon the Loans, the Liquidity Commitments or this
Agreement must be increased as a consequence of such introduction or change,
then, upon demand of the Liquidity Agent at the request of such Liquidity
Lender, the Company shall immediately pay to the Liquidity Agent on behalf of
such Liquidity Lender, additional amounts sufficient to compensate such
Liquidity Lender or such corporation for the increased costs to such Liquidity
Lender or corporation of such increased capital. Any such demand shall be
accompanied by a certificate of such Liquidity Lender setting forth in
reasonable detail the computation of any such increased costs, provided that
such Liquidity Lender shall not be required to disclose confidential
information. This covenant shall
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survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder for one year.
(c) Each Liquidity Lender will promptly notify the Company,
through the Liquidity Agent, of any event of which it has knowledge that will
entitle such Liquidity Lender to compensation pursuant to Section 3.10(a) or (b)
above. No failure by any Liquidity Lender to give (or delay in giving) such
notice shall adversely affect such Liquidity Lender's rights to such
compensation, except that the Company shall have no obligation to compensate any
Liquidity Lender for any cost or reduction incurred or accrued by it more than
180 days before such Liquidity Lender gives notice of the event giving rise to
such cost or reduction as required by the preceding sentence (unless such cost
or reduction is incurred or accrued by such Liquidity Lender more than 180 days
before the delivery of such notice as a result of the retroactive application by
any Governmental Authority of any Requirement of Law, applicable law, rule or
guideline referred to in Section 3.10(a) or (b)).
SECTION 3.11 Taxes. (a) Except as otherwise provided herein,
payments made by the Company under this Agreement and the Notes shall be made
free and clear of, and without deduction or withholding for or on account of,
any present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority or any political subdivision
or taxing authority thereof or therein with respect to such payments (but,
excluding, except as provided in the second succeeding sentence, in the case of
the Liquidity Agent, each Liquidity Lender and each Lending Office, net income
on the Liquidity Agent or such Liquidity Lender or Lending Office, as the case
may be, or profit taxes and capital taxes and franchise taxes (imposed in lieu
of net income taxes) imposed by any Governmental Authority, or any political
subdivision or taxing authority thereof or therein, in which the principal
office of the Liquidity Agent or such Liquidity Lender is located and all
interest, penalties or similar liabilities with respect to such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges (all such
non-excluded taxes, levies, imposts, duties, charges and fees, being hereinafter
called "Taxes"). If any Taxes are required to be withheld from any amounts
payable to the Liquidity Agent or any Liquidity Lender hereunder or under the
Notes, the amounts so payable to the Liquidity Agent or Liquidity Lender shall
be increased to the extent necessary to yield to the Liquidity Agent or such
Liquidity Lender (after making all required deductions for all Taxes) interest
or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the Notes had no such withholding occurred. If
any amounts are payable in respect of Taxes pursuant to the preceding sentence,
the Company agrees to reimburse each Liquidity Lender, upon the written request
of such Liquidity Lender, for taxes imposed on or measured by the net income or
net profits of such Liquidity Lender pursuant to the laws of the jurisdiction in
which such Liquidity Lender is organized or in which the principal office or
applicable lending office of such Liquidity Lender is located or under the laws
of any political subdivision or taxing authority of any such jurisdiction in
which the principal office of such Liquidity Lender is located and for any
withholding of taxes as such Liquidity Lender shall determine are payable by, or
withheld from, such Liquidity Lender, in respect of such amounts so paid to or
on behalf of such Liquidity Lender pursuant to the preceding sentence and in
respect of any amounts paid to or on behalf of such Liquidity Lender pursuant to
this sentence. Whenever any Taxes are payable by the
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Company, within 45 days after the date the payment of any Taxes is due pursuant
to the applicable law the Company shall send to the Liquidity Agent, for its own
account or for the account of such Liquidity Lender, as the case may be, a
certified copy of an original official receipt received by the Company showing
payment thereof. If the Company fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Liquidity Agent the
required receipts or other required documentary evidence, the Company shall
indemnify the Liquidity Agent and the Liquidity Lenders for any incremental
Taxes, interest or penalties that may become payable by the Liquidity Agent or
any Liquidity Lender as a result of any such failure. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the Notes and all other amounts payable hereunder.
(b) Each Liquidity Lender that is not a United States person
(as such term is defined in Section 7701(a)(30) of the Code) for U.S. federal
income tax purposes agrees that it will deliver to the Company and the Liquidity
Agent (i) two accurate and completed original signed copies of United States
Internal Revenue Service Form W-8ECI or W-8BEN (with respect to a complete or
partial exemption under an income tax treaty) (or successor form) certifying in
each case to such Liquidity Lender's entitlement as of such date to a complete
or partial exemption from United States withholding tax with respect to payments
under this Agreement and the Notes payable to it or (ii) if the Liquidity Lender
is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and
cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) pursuant to clause
(i) above, (x) a certificate substantially in the form of Exhibit I (any such
certificate, a "Section 3.11(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN (with
respect to the portfolio interest exemption)(or successor form) certifying to
such Liquidity Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. Each such Liquidity Lender also agrees to deliver
to the Company and the Liquidity Agent two further copies of the said Form W8ECI
or W-8BEN (with respect to a compete or partial exemption under an income tax
treaty) or W-8BEN (with respect to the portfolio exemption), or successor forms
or other manner of certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Company, and such extensions or renewals thereof as may reasonably be requested
by the Company or the Liquidity Agent unless in any such case an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Liquidity Lender from duly completing and delivering any such form with respect
to it and such Liquidity Lender so advises the Company and the Liquidity Agent,
in which case such Liquidity Lender shall not be required to deliver such Form
or Certificate pursuant to this Section 3.11(a). Each Liquidity Lender shall
certify in the case of a Form W-8ECI or Form W-8BEN (with respect to a complete
or partial exemption under an income tax treaty) or successor form, that it is
entitled to receive payments under this Agreement without, or at a reduced rate
of, deduction or withholding of any United States federal income Taxes.
(c) The Company shall not be required to pay any additional
amounts to any
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Person in respect of United States or other withholding tax pursuant to Section
3.11(a) if the obligation to pay such additional amounts would not have arisen
but for a failure by such Person to comply with the requirements of Section
3.11(b) or 10.05(e); provided, that if such Liquidity Lender shall have
satisfied such requirements on the Closing Date (in the case of each Liquidity
Lender listed on the signature pages hereof) or on the effective date of the
assignment pursuant to which it became a Liquidity Lender (in the case of each
other Liquidity Lender), nothing in this subsection shall relieve the Company of
its obligation to pay any additional amounts pursuant to Section 3.11(a) in the
event that, as a result of any change in applicable law, such Liquidity Lender
is no longer properly entitled to deliver certificates, documents or other
evidence at a subsequent date establishing the fact that such Liquidity Lender
is not subject to withholding as described in Section 3.11(b).
(d) If the Company pays any additional amount under this
Section 3.11 to a Liquidity Lender and such Liquidity Lender determines in its
sole discretion that it has actually received or realized in connection
therewith any refund or any reduction of, or credit against, its Tax liabilities
in or with respect to the taxable year in which the additional amount is paid (a
"Tax Benefit"), such Liquidity Lender shall pay to Company an amount that the
Liquidity Lender shall, in its sole discretion, determine is equal to the net
benefit, after tax, which was obtained by the Liquidity Lender in such year as a
consequence of such Tax Benefit; provided, however, that (i) any Liquidity
Lender may determine in its sole discretion consistent with the policies of such
Liquidity Lender whether to seek a Tax Benefit; (ii) any Taxes that are imposed
on a Liquidity Lender as a result of a disallowance or reduction (including
through the expiration of any tax carryover or carryback of such Liquidity
Lender that otherwise would not have expired) of any Tax Benefit with respect to
which such Liquidity Lender has made a payment to the Company pursuant to this
Section 3.11(d) shall be treated as a Tax for which the Company is obligated to
indemnify such Liquidity Lender pursuant to this Section 3.11 without any
exclusions or defenses; and (iii) nothing in this Section 3.11(d) shall require
a Liquidity Lender to disclose any confidential information to the Company
(including, without limitation, its tax returns).
SECTION 3.12 Indemnity. The Company agrees to indemnify each
Liquidity Lender and to hold each Liquidity Lender harmless from any loss or
expense (other than any present or future taxes, now or hereafter imposed,
levied, collected, withheld or assessed) which such Liquidity Lender may sustain
or incur as a consequence of (a) default by the Company in payment when due of
the principal amount of or interest on any Eurodollar Loan, (b) default by the
Company in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Company has given a notice requesting the same in accordance
with the provisions of this Agreement, (c) default by the Company in making any
prepayment after the Company has given a notice thereof in accordance with the
provisions of this Agreement or (d) the making by the Company of a prepayment
(whether such prepayment is voluntary, optional, mandatory or upon acceleration
of such Loans) of Eurodollar Loans on a day which is not the last day of an
Interest Period with respect thereto, including, without limitation, in each
case, any such loss or expense arising from the reemployment of funds (but,
otherwise, excluding in all cases consequential damages and loss of profits
relating thereto) obtained by it or from fees payable to terminate the deposits
from which such funds were obtained. This covenant shall survive the
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termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder for one year.
SECTION 3.13 Pro Rata Borrowings. All Loans under this
Agreement shall be made by the Liquidity Lenders simultaneously and in such
amount as necessary so that after giving effect thereto, to the extent possible,
the outstanding Loans of each Liquidity Lender shall bear the same proportion to
all outstanding Loans of all Liquidity Lenders as such Liquidity Lender's
Percentage bears to 100%. Except as provided in Section 3.04 (c), it is
understood that no Liquidity Lender shall be responsible for any default by any
other Liquidity Lender in its obligations to make Loans hereunder and that each
Liquidity Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Liquidity Lender to fulfill
its commitment hereunder.
SECTION 3.14 Downgrading of Liquidity Lenders. If at any time
the credit rating assigned to any Liquidity Lender by any Rating Agency is
withdrawn or downgraded below the Highest Short-Term Rating Category of such
Rating Agency, the Company may, upon five days' prior written notice given to
the Liquidity Agent and such affected Liquidity Lender, either (i) replace such
affected Liquidity Lender with a lender approved in advance in writing by the
Agent (which lender shall sign such documents and instruments as shall be
appropriate to assume the obligations of such affected Liquidity Lender
hereunder) and having short-term ratings in the Highest Short-Term Rating
Category from each Rating Agency or with a Liquidity Lender already a party to
this Agreement, provided that no such replacement pursuant to this clause (i)
shall be effective unless each Rating Agency shall have confirmed in writing to
the Company and Liquidity Agent that such replacement would not result in a
withdrawal or reduction of the rating by such Rating Agency of the Commercial
Paper below the Highest Short-Term Rating Category of such Rating Agency; or
(ii) terminate such affected Liquidity Lender's Percentage of the Liquidity
Commitment and reduce the Liquidity Commitment by such amount (subject to the
prior execution and delivery of an amendment to this Agreement changing the
Percentages of the Liquidity Lenders remaining so as to equal 100% in the
aggregate); provided that in no event shall any such action under this clause
(ii) be effective hereunder if (x) the sum of the Aggregate CP Matured Value and
the outstanding principal amount of all Loans hereunder would exceed (y) the
Liquidity Commitment as so reduced; provided, however, that, until such time as
one of the actions required by clause (i) or (ii) hereof is completed, the
affected Liquidity Lender's Percentage of the Liquidity Commitment shall not be
terminated (except pursuant to Section 4.02 or Article VIII hereof).
SECTION 3.15 Subordination. The Liquidity Agent and the
Liquidity Lenders agree that the obligations of the Company set forth in
Sections 3.09, 3.10, 3.11, 3.12 and 10.04 hereof shall be subordinate to the
obligation of the Company to make payments of principal of and interest on the
Loans and the Commercial Paper, and shall constitute claims against the Company
only to the extent (if any) that the assets of the Company are sufficient for
the payment thereof.
SECTION 3.16 Mitigation of Costs; Replacement of Liquidity
Lender. (a) If any Liquidity Lender, by changing its Lending Office can mitigate
any adverse effect on the Company under subsections 3.09, 3.10, 3.11 or 3.12,
such Liquidity Lender will, if requested by
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the Company, use reasonable efforts (subject to overall policy considerations of
such Liquidity Lender) to designate another lending office for any Loans
affected by such event; provided that the Liquidity Lender shall determine in
its sole discretion that such designation is made on such terms that such
Liquidity Lender and its lending office suffer no material economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section.
(b) If any Liquidity Lender (x) shall have required
compensation pursuant to subsection 3.09, 3.10 or subsection 3.11, (y) shall
have failed to fund a Loan in accordance with Section 3.04, and/or (z) shall
have refused to consent to a proposed change, waiver, discharge or termination
in connection with this Agreement which has been approved by the Required
Liquidity Lenders pursuant to Section 10.03, the Company shall have the right,
with the consent of the Liquidity Agent (which shall not be unreasonably
withheld), to substitute such Liquidity Lender with a Liquidity Lender (a
"Replacement Lender") satisfactory to the Company and the Liquidity Agent (which
may be one or more of the Liquidity Lenders) to assume the Liquidity Commitment
of such Liquidity Lender and to purchase the Notes held by such Liquidity Lender
for an amount equal to the principal of, and accrued and unpaid interest on,
such Notes, together with any costs reasonably incurred by such Liquidity Lender
in connection with its sale of such Notes (without recourse to or warranty by
such Liquidity Lender and subject to all amounts owing to such Liquidity Lender
under this Agreement having been paid in full); provided that such successor
Liquidity Lender (x) shall have a short-term rating in the Highest Shot-Term
Rating Category from each Rating Agency and (y) shall have delivered to the
Liquidity Agent an opinion substantially in the form of Exhibit D attached
hereto. Upon the exercise of such right by the Company and the satisfaction of
such conditions thereto, such Liquidity Lender shall convey its interest to the
Replacement Lender in accordance with the procedures set forth in Section 10.05.
SECTION 3.17 Loans by Designated Liquidity Lenders. For any
Liquidity Lender which is a Designating Liquidity Lender, any Loan to be made by
such Liquidity Lender may from time to time be made by its Designated Liquidity
Lender in such Designated Liquidity Lender's sole discretion, and nothing herein
shall constitute a commitment to make Loans by such Designated Liquidity Lender
provided that if any Designated Liquidity Lender elects not to, or fails to,
make any such Loan, its Designating Liquidity Lender hereby agrees that it shall
make such Loan pursuant to the terms hereof. Any Loan actually funded by a
Designated Liquidity Lender shall constitute a utilization of the Liquidity
Commitment of the Designating Liquidity Lender for all purposes hereunder.
ARTICLE IV
OTHER CREDIT TERMS
SECTION 4.01 Liquidity Fee. In connection with and as
consideration for the holding available for use by the Company the full amount
of the Liquidity Commitments during the Liquidity Commitment Period the Company
agrees to pay to the Liquidity Agent for the account of each Liquidity Lender a
commitment fee (the "Liquidity Fee") equal to the sum of the
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product of (x) the Liquidity Commitment Fee Rate multiplied by (y) the average
daily amount of the Available Liquidity Commitment of such Liquidity Lender
during the calendar quarter preceding the calendar quarter in which the
Liquidity Fee is paid multiplied by (z) a fraction the numerator of which is the
number of days in the calendar quarter preceding the calendar quarter in which
the Liquidity Fee is paid and the denominator of which is 360. Such Liquidity
Fee shall be payable quarterly in arrears on the fifth Business Day of each
calendar quarter (in respect of the Liquidity Fee accrued during the preceding
calendar quarter), commencing _____ __, 2000 and on the Liquidity Termination
Date.
SECTION 4.02 Termination of Liquidity Commitment. (a) The
Company may irrevocably terminate the Liquidity Commitment on or after the first
date on which (i) the Company shall have permanently ceased issuing Commercial
Paper and (ii) no Commercial Paper or Loans are outstanding.
(b) After giving notice of termination pursuant to Section
4.02(a) hereof, the Company shall not make any further Advances to the Borrower
pursuant to the Credit Agreement.
SECTION 4.03 Expiration of Liquidity Commitment; Extension of
Liquidity Commitment. (a) Subject to subsection (b) of this Section 4.03 and
other provisions of this Agreement permitting earlier termination hereof, the
Liquidity Commitment (but not this Agreement) shall terminate on the Liquidity
Termination Date. The Liquidity Agent shall provide a written notice thereof to
the Rating Agencies.
(b) On any Business Day which is at least 30 and not more than
45 days prior to the Liquidity Termination Date then in effect, the Company may
notify the Liquidity Agent of its desire to extend the Liquidity Termination
Date for the period specified in such notice, whereupon the Liquidity Agent
shall notify each Liquidity Lender of such request. Not later than the 30th day
next following notice of such request, but in no event earlier than the 45th day
prior to he Liquidation Termination Date then in effect, each Liquidity Lender
will notify the Liquidity Agent whether it consents to such extension, provided
that in the event that a Liquidity Lender does not respond to such request such
Liquidity Lender shall be deemed to have denied its consent to such request. The
Liquidity Agent shall notify the Company in writing of the decisions of the
Liquidity Lenders not later than thirty days (or, if such day is not a Business
Day, the next succeeding Business Day) after the date on which the Liquidity
Agent shall have received such notice from the Company. If all of the Liquidity
Lenders consent to extend the Liquidity Termination Date for the specified
period as evidenced by a notice from the Liquidity Agent to the Company, the
Liquidity Termination Date shall be so extended on the date of such notice and
the Liquidity Agent shall provide a written notice thereof to the Rating
Agencies.
(c) If any Liquidity Lender does not consent to the extension
of the Liquidity Termination Date pursuant to subsection (b) of this Section
4.03, the Company may, upon such failure to extend, (A) request each Liquidity
Lender that is willing to extend the Liquidity Termination Date to assume all or
a portion of the non-extending Liquidity Lender's Percentage of the Liquidity
Commitment and (B) after first making the request pursuant to clause (A), as to
any portion of the non-extending Liquidity Lender's Percentage of the Liquidity
Commitment
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not assumed pursuant to such clause within fifteen days after the
date of such request, obtain a qualified successor lender or lenders having (in
each case) short-term ratings in the Highest Short-Term Rating Category from
each Rating Agency to assume such non-extending Liquidity Lender's Percentage of
the Liquidity Commitment. If such a successor lender or lenders are obtained
prior to the Liquidity Termination Date then in effect, the Company, the
Liquidity Lenders willing to extend the Liquidity Termination Date, the
Liquidity Agent and such successor lender or lenders shall sign such documents
and instruments as shall be appropriate to evidence the extension of the
Liquidity Termination Date and such successor lender's or lenders' assumption of
such non-extending Liquidity Lender's Percentage of the Liquidity Commitment
(including, without limitation, any adjustment to the Percentages) and the
successor lender shall deliver an opinion substantially in the form of Exhibit D
attached hereto. Upon the execution and delivery of such documents and
instruments and the payment of any fees which may be payable in connection
therewith, the Liquidity Termination Date shall as of the date of such delivery
be extended for the specified period. Each such successor Liquidity Lender shall
be deemed to be a "Liquidity Lender" for all purposes hereunder, and the
non-extending Liquidity Lender shall have no further obligations hereunder.
SECTION 4.04 Use of Proceeds. (a) The proceeds of the
Revolving Loans shall be used by the Company only to make Advances to the
Borrower pursuant to the Credit Agreement. The proceeds of Refunding Loans shall
be used by the Company solely to pay maturing Commercial Paper.
(b) The proceeds of Commercial Paper shall be used by the
Company only to (i) make Advances to the Borrower pursuant to the Credit
Agreement and (ii) repay maturing Commercial Paper or Loans.
ARTICLE V
PAYMENTS
SECTION 5.01 Payments on Non-Business Days. Whenever any
payment to be made hereunder or under a Loan Note (other than payments on the
Eurodollar Rate Loans) shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and interest and fees shall be payable at the applicable rate
through and including the day immediately preceding such Business Day. If any
payment on a Eurodollar Rate Loan becomes due and payable on a day other than a
Working Day, the maturity thereof shall be extended to the next succeeding
Working Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Working Day.
SECTION 5.02 Prepayments. (a) The Company may, at any time and
from time to time, prepay the Loans, in whole or in part, without premium or
penalty, upon at least three Working Days' irrevocable notice (in the case of
Eurodollar Rate Loans) and one Business Day's irrevocable notice (in the case of
Base Rate Loans) from the Company to the Liquidity Agent specifying the date and
amount of prepayment and whether the prepayment is of Eurodollar Rate
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Loans, Base Rate Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice from the
Company, the Liquidity Agent shall promptly notify each Liquidity Lenders
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable by the Company on the date specified therein, together with
accrued interest to such date on the amount prepaid. Partial prepayments shall
be in an aggregate principal amount of $5,000,000 or a whole multiple thereof.
(b) On any Business Day on which any Loan is outstanding and
the Company is able to sell Commercial Paper, the Company shall be obligated to
prepay Loans in an amount equal to the lesser of (x) the aggregate amount of
Loans outstanding and (y) the proceeds from the sale of the maximum amount of
Commercial Paper that the Company is able to sell on such day in excess of the
proceeds needed to pay Commercial Paper maturing on such day.
(c) If on any Business Day on which any Loan is outstanding,
the Company shall have received prepayments of Advances from the Borrower, then
the Company shall on such Business Day prepay the Loans to the extent of such
amounts.
(d) Notwithstanding anything to the contrary in this
Agreement, on the Liquidity Termination Date (i) all Loans outstanding shall
mature and be payable in full, and the Liquidity Commitment of each Liquidity
Lender shall be reduced to zero, (ii) the Company shall have permanently ceased
issuing Commercial Paper, and (iii) the Company shall not make any further
Advances to the Borrower pursuant to the Credit Agreement.
SECTION 5.03 Attachments. Anything herein to the contrary
notwithstanding, the Company shall not be permitted to issue or sell Commercial
Paper after the Company has received notice that the Commercial Paper Account or
any funds on deposit in, or otherwise to the credit of, the Commercial Paper
Account are or have become subject to any stay, writ, judgment, warrant of
attachment, execution or similar process, unless such stay, writ, judgment,
warrant or attachment, execution or similar process does not, in the reasonable
opinion of the Required Liquidity Lenders, materially impair the fulfillment of
the transactions contemplated by this Agreement.
SECTION 5.04 Method and Place of Payment, etc. (a) All
payments by the Company under this Agreement and the Loan Notes owing to the
Liquidity Lenders shall be made to the Liquidity Agent for the pro rata account
of each Liquidity Lender, without setoff or counterclaim, not later than 2:00
p.m. (New York City time) on the date when due and shall be made in freely
transferable U.S. dollars and in immediately available funds at the Liquidity
Agent's Payment Office. Payments by the Company shall be distributed by the
Liquidity Agent to the Liquidity Lenders (i) on account of principal of and
interest on the Loans made by the Liquidity Lenders, pro rata according to the
respective outstanding principal amounts of the Loans held by each Liquidity
Lender and (ii) on account of the Liquidity Fee in accordance with each
Liquidity Lender's respective Percentage prior to the close of business on the
day on which received.
(b) On any date on which a payment by the Company of any
amount owing by it hereunder is due and payable, the Liquidity Agent may (but in
no event shall be required to)
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assume that the Company has made such payment available to the Liquidity Agent
on the date of such payment in accordance with Section 5.04 hereof, and the
Liquidity Agent may (but in no event shall be required to), in reliance upon
such assumption, make payment to the Liquidity Lenders accordingly. If and to
the extent the Company shall not have so made such payment available to the
Liquidity Agent, each Liquidity Lender irrevocably and unconditionally agrees to
repay to the Liquidity Agent forthwith on demand the amount of such payment
received by such Liquidity Lender together with interest thereon, for each day
from the date such payment is made by the Liquidity Agent until the date such
amount is repaid to the Liquidity Agent, at a rate per annum equal to the
Federal Funds Rate.
(c) Any payments received after 2:00 p.m. (New York City time)
on the date when due shall be deemed for purposes of calculating interest
pursuant to Section 3.06 hereof to have been paid on the next succeeding
Business Day, and interest shall be payable at the applicable rate through and
including the day immediately preceding such Business Day.
SECTION 5.05 Conversion and Continuations. (a) The Company may
elect from time to time to convert Eurodollar Rate Loans to Base Rate Loans, by
giving the Liquidity Agent at least two Business Days' prior irrevocable notice
of such election; provided that any such conversion of Eurodollar Rate Loans may
only be made on the last day of an Interest Period with respect thereto. The
Company may elect from time to time, provided no Default or Event of Default
shall have occurred and be continuing, to convert Base Rate Loans to Eurodollar
Rate Loans by giving the Liquidity Agent at least three Working Days' prior
irrevocable notice of such election. Any such notice of conversion to Eurodollar
Rate Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Liquidity Agent shall
promptly notify each Liquidity Lender thereof. All or any part of outstanding
Eurodollar Rate Loans and Base Rate Loans may be converted as provided herein;
provided that no Loan may be converted into a Eurodollar Rate Loan after the
date that is one month prior to the Liquidity Termination Date.
(b) Any Eurodollar Rate Loans may be continued as such upon
the expiration of the then current Interest Period with respect thereto by the
Company giving notice to the Liquidity Agent, in accordance with the applicable
provisions of the definition of "Interest Period" set forth in Section 1.02, of
the length of the next Interest Period to be applicable to such Eurodollar Rate
Loans; provided that no Eurodollar Rate Loan may be continued as such after the
date that is one month prior to the Liquidity Termination Date; and provided,
further, that if the Company shall fail to give any required notice as described
above in this subsection or if such continuation is not permitted pursuant to
the preceding proviso such Loans shall be automatically converted to Base Rate
Loans on the last day of such then expiring Interest Period.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01 Conditions to Effectiveness. This Agreement shall
become effective on the date (the "Effective Date") which shall be the first day
on which all of the
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following conditions have been satisfied:
(a) Agreement. Each Liquidity Lender, the Liquidity Agent and
the Company shall have signed a counterpart copy of this Agreement and
delivered the same to the Liquidity Agent.
(b) The Revolving Loan Notes and the Refunding Loan Notes.
There shall have been delivered to the Liquidity Agent for the account
of each Liquidity Lender the appropriate Revolving Loan Note and
Refunding Loan Note payable to the order of such Liquidity Lender in
the amount and as otherwise provided for in Article III.
(c) Credit Agreement. The Company, the Borrower and the Agent
shall have executed and delivered the Credit Agreement, and the
Liquidity Agent shall have received a fully executed counterpart
thereof.
(d) Security Agreement. The Company, the Collateral Agent, the
Liquidity Agent, the Agent, the Depositary and the Borrower shall have
executed and delivered to the Collateral Agent the Security Agreement,
which shall be in full force and effect, and the Liquidity Agent shall
have received a fully executed counterpart thereof.
(e) Control Agreement. The Custodian, the Company, the
Borrower and the Collateral Agent shall have executed and delivered the
Control Agreement and the Liquidity Agent shall have received a fully
executed counterpart thereof.
(f) Depositary Agreement. The Company and the Depositary shall
have executed and delivered the Depositary Agreement, the Collateral
Agent shall have consented thereto and the Liquidity Agent shall have
received a fully executed counterpart thereof.
(g) Other Agreements. The Company shall have executed and
delivered each other Facility Document to which it is a party and the
Liquidity Agent shall have received a fully executed counterpart of
each such document.
(h) No Default. After giving effect to the effectiveness of
this Agreement, there shall exist no Default or Event of Default under
this Agreement or the Credit Agreement.
(i) Representations and Warranties. All representations and
warranties of (i) the Company contained in this Agreement and in the
other Facility Documents to which it is a party or in any document,
certificate or financial or other statement delivered in connection
herewith or therewith, and (ii) the Borrower contained in the Facility
Documents to which it is a party, shall (in each case) be true and
correct in all material respects and with the same force and effect as
though such representations and warranties had been made as of such
time, except to the extent any such representations and warranties
relate solely to an earlier date.
(j) Opinions of Counsel. The Liquidity Agent shall have
received, in sufficient quantities for each Liquidity Lender, the
Liquidity Agent and the Company, favorable
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opinions dated the Effective Date covering the matters set forth in
Exhibits E and F attached hereto and such other matters as the
Liquidity Agent shall reasonably request from (i) ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
as to certain matters regarding the Borrower and (ii) from
__________________ and White & Case LLP as to certain matters
regarding the Company.
(k) Closing Certificates. The Liquidity Agent shall have
received in sufficient quantities for each Liquidity Lender a
certificate, dated the Effective Date and executed by the president,
treasurer, assistant treasurer or other authorized officer of each of
the Company and the Borrower, stating that all of the conditions
specified in Sections 6.01(h) and (i) as applicable to it are then
satisfied.
(l) Filings, etc. All filings (including, without limitation,
pursuant to the UCC) and recordings shall have been completed in such
jurisdictions as may be required or permitted by law to establish,
perfect, protect and preserve the rights, titles, interests, remedies,
powers, privileges, liens and security interests of the Company and of
the Collateral Agent in the collateral covered by the Security
Agreement and any giving of notice or the taking of any other action to
such end (whether similar or dissimilar) required or permitted by law
shall have been given or taken. On or prior to the Effective Date, the
Company, the Agent and the Collateral Agent shall have received
satisfactory evidence as to any such filing, recording, registration,
giving of notice or other action so taken or made.
(m) Documentation and Proceedings. The Liquidity Agent shall
have received (i) copies of the certificate of formation and the
limited liability company agreement of the Company and copies of the
declaration of trust and by-laws, or other similar governing document,
of the Borrower, (ii) Board of Directors resolutions of the Company and
the resolutions of the Board of Trustees of the Borrower in respect of
the Facility Documents to which it is a party, and (iii) incumbency
certificates of the Company and the Borrower, all certified on the
Effective Date by appropriate corporate authorities and reasonably
satisfactory in form and substance to the Liquidity Agent.
(n) Rating Letter. The Commercial Paper shall have been given
a rating of at least [A-1+/F-1+/P-1] from S&P, Fitch and ▇▇▇▇▇'▇
respectively, which ratings shall be in full force and effect.
SECTION 6.02 Conditions to Each Credit Utilization. The
obligation of each Liquidity Lender to make each Revolving Loan hereunder and
the right of the Company to issue Commercial Paper other than to continue the
funding of outstanding Advances (any of the foregoing, a "Credit Utilization")
are subject at the time of such Credit Utilization to the satisfaction of the
following conditions; provided that the condition specified in Section 6.02(c)
shall be applicable only in respect of the making of Revolving Loans. Each
Credit Utilization shall constitute a representation and warranty by the Company
that the conditions specified in Sections 6.02(a) and (b) below are then
satisfied.
(a) No Default. At the time of such Credit Utilization and
after giving effect
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thereto, there shall exist no Default or Event of Default under this Agreement
and no "default" or "event of default" under the Credit Agreement.
(b) Representations and Warranties. At the date of such Credit
Utilization and after giving effect thereto, all representations and warranties
of (i) the Company contained in this Agreement and in other Facility Documents
to which it is a party or in any document, certificate or financial or other
statement delivered in connection herewith or therewith and (ii) to the
Company's knowledge, the Borrower contained in the Facility Documents to which
it is a party or in any document, certificate or financial or other statement
delivered in connection therewith, in each case shall be true and correct in all
material respects with the same force and effect as though such representations
and warranties had been made as of such date, except to the extent any such
representations and warranties relate solely to an earlier date.
(c) Commercial Paper Unavailable. The Company shall have
determined in good faith that the Company is unable to issue Commercial Paper at
maturities up to 180 days in an amount sufficient to enable the Company to fund
an Advance requested by the Borrower under the Credit Agreement on the date
requested.
(d) No Bankruptcy Proceeding. The Company shall not have
voluntarily commenced any proceeding or filed any petition under any bankruptcy,
insolvency or similar law seeking the dissolution, liquidation or reorganization
of the Company or taken any corporate action for the purpose of effectuating any
of the foregoing, and no involuntary proceedings or involuntary petition shall
have been commenced or filed against the Company by any Person under any
bankruptcy, insolvency or similar law seeking the dissolution, liquidation or
reorganization of the Company that shall not have been dismissed.
(e) Asset Coverage Ratio. The Asset Coverage Ratio of
the Borrower shall not be less than 300%.
SECTION 6.03 Conditions Precedent to the Making of Each
Refunding Loan. In addition to the requirements of Section 3.01, the Liquidity
Lenders shall not be required to make Refunding Loans if at or prior to the time
of making of such Refunding Loan (i) an order for relief shall be entered in a
case under the Bankruptcy Code in which the Company is a debtor or the Company
shall have voluntarily commenced any proceeding or filed any petition under any
bankruptcy, insolvency or similar law seeking the dissolution, liquidation or
reorganization of the Company or taken any corporate action for the purpose of
effectuating any of the foregoing or seeking the appointment of a receiver,
trustee, custodian or liquidator for itself or a substantial portion of its
property, assets or business, (ii) involuntary proceedings or an involuntary
petition shall have been commenced or filed against the Company by any Person
other than the Collateral Agent under any bankruptcy, insolvency of similar law
seeking the dissolution, liquidation or reorganization of the Company or seeking
the appointment of a receiver, trustee, custodian or liquidation for itself or a
substantial portion of its property, assets or business and such proceeding or
petition shall continue undismissed for sixty days after the commencement or
filing thereof or (iii) the Asset Coverage Ratio of the Borrower shall be less
than 225%.
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ARTICLE VII
COVENANTS
---------
While this Agreement is in effect and until all indebtedness hereunder
and under the Commercial Paper and the Loan Notes shall have been paid in full
and the Liquidity Lenders no longer have any Liquidity Commitment hereunder, the
Company agrees that:
SECTION 7.01 Affirmative Covenants. Each of the Company and the
Borrower will pay and discharge all taxes, assessments and governmental charges
or levies imposed upon it or upon its income or profits, or upon any properties
belonging to it, prior to the date on which penalties attach thereto, and all
lawful claims for sums that have become due and payable which, if unpaid, might
become a Lien not otherwise permitted under this Agreement; provided, that the
Borrower or the Company, as the case may be, shall not be required to pay any
such tax, assessment, charge, levy or claim which is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with
respect thereto in accordance with U.S. GAAP. The Company will (w) promptly
provide the Liquidity Agent and the Manager with all financial and operational
information which the Company receives under the Facility Documents and such
additional information as the Liquidity Agent or the Manager may reasonably
request and permit the Liquidity Agent, each Liquidity Lender and its agents,
upon prior notice to the Company, to inspect any of the Company's assets
(including its books and records) at any time that the Liquidity Agent
reasonably so requests; provided, however, that, in the absence of a Default or
Event of Default, the Liquidity Agent will be permitted to make no more than one
such inspection in any calendar year; (x) comply in all material respects with
obligations it assumes under the Facility Documents; (y) not take any action
which would permit the Borrower to have the right to refuse to perform any of
its obligations under any of the Facility Documents to which the Company is a
party and (z) provide the Manager with all of the information it reasonably
requires to perform its services under the Management Agreement. The Company
will provide a monthly statement to the Rating Agencies setting forth the
information reasonably requested by the Rating Agencies.
SECTION 7.02 Dividend Limitation. The Company will not declare or pay
any dividend in respect of, or make any distribution in respect of, or
redemption or purchase of, any shares of its capital stock ("Restricted
Payments"); provided that the Company may make Restricted Payments in an amount
in any one year not to exceed $5,000 in each case on a basis subordinated to the
prior payment in full of all amounts due and owing in respect of Commercial
Paper and Loans.
SECTION 7.03 Liens. The Company will not contract for, create, incur,
assume or suffer to exist any Lien, security interest, charge or other
encumbrance of any nature upon any of its property or assets, whether now owned
or hereafter acquired except for any Permitted Liens.
SECTION 7.04 Other Debt; Receivables. The Company will not create,
incur, assume or suffer to exist any indebtedness, whether current or funded, or
any other liability except (i) indebtedness evidenced by the Commercial Paper,
(ii) indebtedness evidenced by the
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Loan Notes, (iii) indebtedness of the Company representing fees, expenses and
indemnities payable pursuant to the Facility Documents, and (iv) trade payables
for necessary services supplied or furnished to the Company.
SECTION 7.05 Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by the Credit Agreement, the Company will not make any loan or
advance or credit to, or guarantee (directly or indirectly or by an instrument
having the effect of assuring another's payment or performance on any obligation
or capability of so doing or otherwise), endorse or otherwise become
contingently liable, directly or indirectly, in connection with the obligations,
stocks or dividends of, or own, purchase, repurchase or acquire (or agree
contingently to do so) any assets, stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any other Person.
SECTION 7.06 Consolidation, Merger and Sale of Assets. The Company
will not enter into any merger, consolidation, joint venture, syndicate or other
form of combination with any Person or sell, lease or transfer or otherwise
dispose of any of its assets or receivables or purchase any asset or engage in
any other transaction which would result in a change of control of the Company.
SECTION 7.07 Certain Amendments and Waivers. Without the prior written
approval of the Required Liquidity Lenders, the Company will not execute or
consent to any amendment or waiver of any Facility Document.
SECTION 7.08 Capital Expenditures. The Company will not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(both realty and personalty).
SECTION 7.09 Other Business. The Company will not engage in any
business or enterprise or enter into any material transaction other than as
contemplated by the Facility Documents.
SECTION 7.10 Amendment of Certificate of Incorporation or By-Laws. The
Company will not amend its certificate of formation or limited liability company
agreement if such amendment would have a material adverse effect on the
Liquidity Lenders or the holders of the Commercial Paper.
SECTION 7.11 Good Standing. The Company will maintain its existence as
a limited liability company validly existing and in good standing under the laws
of the State of Delaware.
SECTION 7.12 Restriction on Advances. The Company will not make any
Advances on or after the Liquidity Termination Date.
SECTION 7.13 Separate Existence. The Company will:
(i) maintain in full effect its existence, rights and franchises as a
limited liability
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company under the laws of the state of its organization and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and each Facility Document to which it is a
party and each other instrument or agreement necessary or appropriate for the
proper administration hereof and permit and effectuate the transactions
contemplated hereby;
(ii) maintain its own deposit account or accounts, separate from those
of the Borrower or any of its Affiliates, with commercial banking institutions.
The funds of the Company will not be diverted to any other Person or for other
than the use of the Company and the funds of the Company shall not be commingled
with those of the Borrower or any of its Affiliates;
(iii) to the extent that the Company contracts or does business with
vendors or service providers where the goods and services provided are partially
for the benefit of any other Person, the costs incurred in so doing shall be
fairly allocated to or among the Company and such entities for whose benefit the
goods and services are provided, and the Company and each such entity shall bear
its fair share of such costs. All material transactions between the Company and
any of its Affiliates shall be only on an arm's-length basis;
(iv) maintain a principal executive and administrative office through
which its business is conducted and a telephone number separate from the
Borrower and its Affiliates;
(v) conduct its affairs strictly in accordance with its certificate of
formation and observe all necessary, appropriate and customary formalities
relating to limited liability companies, including, but not limited to, holding
all regular and special members' and managers' meetings appropriate to authorize
all action of the Company, keeping separate and accurate minutes of such
meetings, passing all resolutions or consents necessary to authorize actions
taken or to be taken, and maintaining accurate and separate books, records and
accounts, including, but not limited to, inter-company transaction accounts.
Regular members' and managers' meetings shall be held at least annually;
(vi) ensure that decisions with respect to its business and daily
operations shall be independently made by the Company (although the officer
making any particular decision may also be an employee, officer or director of a
member or any of its Affiliates) and shall not be dictated by the Borrower or
any of its Affiliates;
(vii) act solely in its own name and through its own authorized
officers and agents. The Company shall at all times use its own stationery;
(viii) ensure that neither the Borrower nor any of its Affiliates
shall advance funds to the Company, other than as is otherwise provided herein
or in the other Facility Documents, and neither the Borrower nor any of its
Affiliates will otherwise supply funds to, or guaranty debts of, the Company;
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(ix) other than organizational expenses and as expressly provided
herein, pay all expenses, indebtedness and other obligations incurred by it;
(x) not (A) enter into any guaranty, or otherwise become liable, or
hold itself out as responsible with respect to any obligation of any member of
the Company, the Borrower or any of their respective Affiliates or (B) seek to
obtain credit or incur any obligation to any third party based upon the assets
of any member of the Company, the Borrower or any of their respective Affiliates
and induce any such third party to reasonably rely on the credit-worthiness of
any member of the Company, the Borrower or any of their respective Affiliates;
(xi) maintain books and records adequate for the preparation of
separate financial statements of the Company and ensure that any financial
statements required of the Company shall be issued separately from any
statements for any member of the Company, the Borrower or any of their
respective Affiliates;
(xii) ensure that at all times it is adequately capitalized to engage
in the transactions contemplated in its limited liability company agreement;
(xiii) ensure that the financial statements and books and records of
Company, on the one hand, and each member of the company, the Borrower and their
respective Affiliates, on the other hand, reflect the separate existence of the
Company; and
(xiv) not act as agent for any member of the Company, the Borrower or
any of its Affiliates, but instead present itself to the public as a company
separate from each such corporation and independently engaged in the business
specified in the Facility Documents.
SECTION 7.14 Notice of Default. The Company shall give to the
Liquidity Agent, the Liquidity Lenders and the Depositary prompt written notice
of (i) any Default or Event of Default hereunder and (ii) any "default" or
"event of default" under the Credit Agreement.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
SECTION 8.01 Event of Default. Upon the occurrence of any of the
following events (each an "Event of Default"), and so long as such Event of
Default shall continue unremedied:
(a) Payments. (x) failure by the Company to pay the principal of a
Loan or any amount in respect of Commercial Paper when due, or (y) to pay any
interest on the Loans or any Liquidity Fee or any other amount payable to the
Liquidity Agent or the Liquidity Lenders hereunder within three Business Days
after such amount becomes due; or
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(b) Representations. Any representation or warranty or statement made
or deemed made by the Company in this Agreement or in any other Facility
Document or in any document entered into in connection herewith or therewith or
in any document, certificate or financial or other statement delivered in
connection therewith shall prove to have been incorrect when made or deemed to
have been made in any material respect; or
(c) Covenants. Failure by the Company to observe or perform in all
material respects (i) any of the covenants or agreements in Sections 7.02, 7.03,
7.04, 7.05, 7.06, 7.07, 7.08, 7.09, 7.10 or 7.12 of this Agreement, or (ii) any
other covenant or agreement contained herein or in any other Facility Document
and not constituting an Event of Default under any other clause of this Article
VIII; provided, that in the case of clause (ii), such failure shall have
continued for thirty days after the Company shall have become aware of such
failure; or
(d) Voluntary Bankruptcy Proceedings of the Company. Either (i) the
Company shall become insolvent or generally fail to pay, or admit in writing its
inability to pay, its debts as they become due, or shall voluntarily commence
any proceeding or file any petition under any bankruptcy, insolvency or similar
law or seeking dissolution or reorganization or the appointment of a receiver,
trustee, custodian or liquidator for itself or a substantial portion of its
property, assets or business or to effect a plan or other arrangement with its
creditors, or shall file any answer admitting the jurisdiction of the court and
the material allegations of an involuntary petition filed against it in any
bankruptcy, insolvency or similar proceeding, or shall be adjudicated bankrupt,
or shall make a general assignment for the benefit of creditors, or shall
consent to or acquiesce in the appointment of a receiver, trustee, custodian or
liquidator for itself or a substantial portion of its property, assets or
business or (ii) action shall be taken by the Company for the purpose of
effectuating any of the foregoing; or
(e) Involuntary Bankruptcy Proceedings against the Company. If
involuntary proceedings or an involuntary petition shall be commenced or filed
against the Company under any bankruptcy, insolvency or similar law or seeking
the dissolution or reorganization of the Company or the appointment of a
receiver, trustee, custodian or liquidator for the Company or of a substantial
part of the property, assets or business of the Company, or any writ, order,
judgment, warrant of attachment, execution or similar process shall be issued or
levied against a substantial part of the property, assets or business of the
Company, and such proceeding or petition shall not be dismissed, or such
execution or similar process shall not be released, vacated or fully bonded,
within sixty days after commencement, filing or levy, as the case may be; or
(f) Security Interest. The Security Agreement shall cease to be in
full force and effect, or the enforceability thereof shall be contested by the
Company, or the Lien on the Collateral in favor of the Collateral Agent shall at
any time cease to be a valid and perfected first priority Lien, subject only to
Permitted Liens; or
(g) Judgments. Any final judgments or orders (not subject to appeal)
by one or more courts of competent jurisdiction for the payment of money in an
aggregate amount
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in excess of $50,000 (after giving effect to insurance, if any, available
with respect thereto) shall be rendered against the Company, and the same
shall remain unsatisfied, unvacated, unbonded or unstayed for a period of
thirty days after the date on which the right to appeal has expired;
then, at any time during the continuance of any Event of Default, the Liquidity
Agent may, and shall at the written request of the Required Liquidity Lenders,
by written notice to the Company, the Collateral Agent and the Depositary (i)
declare the principal of and accrued interest in respect of the Loan Notes to
be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Company, anything contained herein or in any Loan
Note to the contrary notwithstanding, and/or (ii) declare the Liquidity
Commitment terminated, whereupon the Liquidity Commitment and the obligation of
the Liquidity Lenders to make new Loans hereunder, with the exception of
Refunding Loans with respect to Commercial Paper issued and delivered by the
Depositary prior to the Depositary's receipt of instructions from the Liquidity
Agent to cease issuing Commercial Paper as provided in Section 2.01(a) hereof,
shall terminate immediately and any accrued fees or premiums shall forthwith
become due and payable without any further notice of any kind; provided that if
an Event of Default described in clauses (d) or (e) above shall occur in respect
of the Company, the result which would otherwise occur only upon the giving of
written notice by the Liquidity Agent to the Company, the Collateral Agent and
the Depositary as specified in clauses (i) and (ii) above shall occur
automatically, without the giving of any such notice. Anything herein to the
contrary notwithstanding, no declaration or termination of the Liquidity
Commitment pursuant to the foregoing provisions of this Article VIII shall
affect the obligation of the Liquidity Lenders to make Refunding Loans with
respect to Commercial Paper issued, and delivered by the Depositary prior to the
Depositary's receipt of instructions from the Liquidity Agent to cease issuing
Commercial Paper as provided in Section 2.01(a) hereof, provided the conditions
set forth in Section 6.03 hereof are satisfied at the time of the making of any
such Refunding Loan. Subject to Sections 10.13 and 10.14 hereof, upon the
occurrence of an Event of Default the Liquidity Lenders may proceed to enforce
their rights and remedies as permitted by applicable law and the Security
Agreement, including bringing an action for specific performance by the Company
of any of the Company's obligations under the Facility Documents.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Liquidity Lenders to enter into this Agreement
and to provide the credit facilities provided for herein, the Company makes the
following representations and warranties to the Liquidity Lenders:
SECTION 9.01 Existence. The Company is duly organized, validly
existing and in good standing under the laws of the State of Delaware, has the
power to own its assets and to transact the business in which it is now engaged
and is duly qualified as a foreign limited liability company and in good
standing under the laws of each jurisdiction in which its business or
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activities requires such qualification. The Company has no Subsidiaries.
SECTION 9.02 Corporate Power; Authorization; Enforceable Obligation.
The Company has the power, authority and legal right to execute, deliver and
perform the Facility Documents to which it is a party and to borrow hereunder
and has taken all necessary action to authorize the borrowings on the terms and
conditions hereof and the execution, delivery and performance of such Facility
Documents. No consent, license, permit, approval or authorization of, exemption
by, notice or report to, or registration, filing or declaration with, any
governmental authority is required for the execution, delivery and performance
by the Company of the Facility Documents to which it is a party which has not
been obtained, made, given or accomplished. This Agreement, the Credit
Agreement, the Security Agreement, the Depositary Agreement, the Control
Agreement and the Loan Notes have been executed and delivered by a duly
authorized officer of the Company, and each of such Agreements constitutes and,
in the case of Commercial Paper, when executed and issued in accordance with the
provisions hereof and of the Depositary Agreement, will constitute, a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except that the enforceability thereof may be subject
to the effects of any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and may be limited by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
SECTION 9.03 No Legal Bar. The execution, delivery and performance by
the Company of the Facility Documents to which it is a party will not violate
any provision of any existing law or regulation applicable to the Company, or of
any order, judgment, award or decree of any court, arbitrator or Governmental
Authority applicable to the Company or the Certificate of Incorporation or
By-Laws of the Company or any mortgage, indenture, lease, contract or other
agreement, instrument or undertaking to which the Company is a party or by which
the Company or any of its assets may be bound, and will not, except as otherwise
provided herein or under any of the other Facility Documents, result in, or
require, the creation or imposition of any Lien on any of its property, assets
or revenues pursuant to the provisions of any such mortgage, indenture, lease,
contract or other agreement, instrument or undertaking.
SECTION 9.04 No Material Litigation. No litigation, investigation or
administrative proceeding of or before any court, arbitrator or Governmental
Authority is pending or, to the Company's knowledge, threatened against the
Company or any of its assets (a) with respect to the Facility Documents or the
Borrowings hereunder or (b) that would have a material adverse effect on the
business, operations, assets or financial or other condition of the Company.
SECTION 9.05 Margin Regulations. No part of the proceeds of the Loans
or any Commercial Paper shall be used to purchase or carry any margin stock (as
such terms are defined in Regulation U of the Board of Governors of the Federal
Reserve System). The Company is not engaged, principally or as one of its
important primary activities, in the business of extending credit for the
purpose of purchasing or carrying any margin stock.
SECTION 9.06 Security Interest. (a)(i) No effective financing
statement listing
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the Company as debtor (other than any which may have been filed on behalf of the
Collateral Agent) covering any of the Lender Collateral (as defined in the
Security Agreement) is on file in any public office; and (ii) at the date of
each deposit of funds in the Lender's Account, the Company was, is or will then
be the lawful owner of, and had, has or will then have good title to, such funds
free and clear of all Liens; and
(b) The Company has not created any security interest which remains in
effect in the Lender Collateral and will keep the Lender Collateral and every
part thereof free and clear of all Liens except Permitted Liens and the lien and
security interest granted pursuant to the Security Agreement in favor of the
Collateral Agent.
SECTION 9.07 Commercial Paper; Investment Company Act. All Commercial
Paper shall either be sold in an exempt transaction under Section 4(2) of the
Securities Act of 1933, as amended, or shall constitute exempt securities under
Section 3 of the Securities Act of 1933, as amended, and neither registration of
Commercial Paper under such Act, nor qualification of an indenture with respect
to Commercial Paper under the Trust Indenture Act of 1939, as amended, will be
required in connection with the offer, issuance, sale or delivery of Commercial
Paper. The Company is not an "investment company" required to register as such
under the Investment Company Act of 1940, as amended.
SECTION 9.08 Parent of the Company. is the registered
owner of % of the issued and outstanding membership interests of the Company,
all of which membership interests have been validly issued, are fully paid and
non-assessable and are owned of record by , free and clear of
all mortgages, assignments, pledges, security interests, warrants, options and
rights to purchase. The Company owns no capital stock of, or other interest in,
any Person.
SECTION 9.09 Special Purpose Company. The Company has been
organized solely for the purposes of consummating the transactions contemplated
by this Agreement and the other Facility Documents.
SECTION 9.10 Tax Returns and Payments. The Company and the Borrower
have filed all federal income tax returns and all other material tax returns,
domestic and foreign, required to be filed by them and have paid all material
taxes and assessments payable by them which have become due, except for those
contested in good faith and adequately disclosed and fully provided for on the
financial statements of the Company or the Borrower, as the case may be, in
accordance with generally accepted accounting principles. The Company and the
Borrower have at all times paid, or have provided adequate reserves (in the good
faith judgment of the management of the Company or the Borrower) for the payment
of, all federal, state and foreign income taxes applicable for all prior fiscal
years and for the current fiscal year to date. There is no material action,
suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of the Company or the Borrower, threatened by any authority regarding
any taxes relating to the Company or the Borrower. Neither the Company nor the
Borrower has entered into an agreement or waiver or been requested to enter into
an agreement or waiver extending any statute of limitations relating to the
payment or collection of taxes of the Company or the
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Borrower, as the case may be, or is aware of any circumstances that would cause
the taxable years or other taxable periods of the Company or the Borrower not to
be subject to the normally applicable statute of limitations.
ARTICLE X
MISCELLANEOUS
-------------
SECTION 10.01 Descriptive Headings. The descriptive headings of the
various sections of this Agreement are inserted for convenience of reference
only and shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
SECTION 10.02 Exercise of Rights. No failure or delay on the part of
the Liquidity Agent or any Liquidity Lender to exercise any right, power or
privilege under this Agreement and no course of dealing between the Company and
the Liquidity Agent or any Liquidity Lender shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege under
this Agreement preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which the
Liquidity Agent or the Liquidity Lenders would otherwise have pursuant to law or
equity. No notice to or demand on any party in any case shall entitle such party
to any other or further notice or demand in similar or other circumstances, or
constitute a waiver of the right of the other party to any other or further
action in any circumstances without notice or demand.
SECTION 10.03 Amendment and Waiver. No provision of this Agreement,
the Notes, the Security Agreement or the Control Agreement may be amended,
waived, supplemented, restated, discharged or terminated unless the Required
Liquidity Lenders and the Company (and, to the extent that the rights of the
Liquidity Agent are affected, the Liquidity Agent) shall have given written
consent thereto; provided that no such amendment, waiver, supplement,
restatement, discharge or termination shall (a) forgive or reduce the amount or
extend the maturity of any Note (except pursuant to Section 4.03), or reduce the
rate or extend the time of payment of interest thereon, or forgive or reduce, or
extend the date of payment of, any fee payable to any Liquidity Lender
hereunder, or, except as provided in Sections 4.02 and 4.03, increase the amount
of any Liquidity Lender's Commitment, in each case without the written consent
of the Liquidity Lender affected thereby, or (b) reduce the minimum Asset
Coverage Ratio, (c) amend, modify or waive any provision of this Section 10.03
or reduce the percentage specified in the definition of Required Liquidity
Lenders, or consent to the assignment or transfer by the Company of any of its
rights and obligations under this Agreement and the Notes, or (d) release all or
a substantial portion of the Collateral (as defined in the Security Agreement)
in each case without the written consent of all the Liquidity Lenders. Any such
waiver and any such amendment, supplement, restatement, discharge or termination
shall apply equally to each of the Liquidity Lenders and shall be binding upon
the Company, the Liquidity Lenders, the Liquidity Agent and all future holders
of the Notes. In the case of any waiver, the Company, the Liquidity Lenders and
the Liquidity Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes, and any Default or Event of Default
waived shall be deemed to be cured and not continuing, but no such waiver shall
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extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon. The Rating Agencies shall be given prior written
notice of each amendment of, or waiver with respect to, any Facility Document
and such amendment or waiver shall not cause any rating by the Rating Agencies
on the Commercial Paper to be withdrawn or reduced.
SECTION 10.04 Expenses and Indemnification. (a) The Company agrees (i)
to pay or reimburse the Liquidity Agent for all of its reasonable costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement, the Notes
and any other documents and agreements prepared in connection herewith or
therewith to which the Company is a party, and the consummation and
administration of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and expenses of its counsel, and (ii)
after the occurrence of an Event of Default, to pay or reimburse each Liquidity
Lender and the Liquidity Agent for all of its reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the Notes, and any such other documents or agreements prepared
in connection herewith or therewith, including without limitation, fees and
disbursements of counsel.
(b) The Company agrees to (i) pay, indemnify, and hold each Liquidity
Lender and the Liquidity Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, recording, documentary and other similar taxes, if any, which may
be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the Notes and any other
documents or agreements prepared in connection herewith or therewith, and (ii)
to pay, indemnify, and hold the Liquidity Agent and each Liquidity Lender (and
their respective affiliates, officers, directors, employees, agents and
attorneys-in-fact; collectively with each Liquidity Lender and Liquidity Agent,
the "Indemnified Parties") harmless from and against any and all other
liabilities, obligations, loans, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (including, without limitation, fees and
disbursements of counsel of any kind or nature whatsoever in any way arising out
of or related to (x) the execution, delivery, enforcement, performance and
administration of this Agreement, the Notes and any such other documents to
which the Company is a party, (y) any use or proposed use of the Loans or any
portion thereof, or (z) any litigation, proceeding or investigation instituted
or conducted by any agency or instrumentality or any other Person with respect
to any aspect of, or any transaction contemplated by, or referred to in, or any
matter related to, this Agreement, the Notes or any such other documents
contemplated hereby to which the Company is a party, whether or not the
Indemnified Parties are a party thereto, and claims alleging any contravention
or breach by the Company of the securities laws of any Governmental Authority
(all the foregoing non-excluded items, collectively, the "Indemnified
Liabilities"); provided that the Company shall have no obligation hereunder to
any Indemnified Party with respect to Indemnified Liabilities arising from the
gross negligence or willful misconduct of such Indemnified Party. If any action
is brought against the Liquidity Agent, any Liquidity Lender or any other
Indemnified Party, the Company shall, if requested by the Liquidity Agent,
resist and defend such action, suit or proceeding or cause the same to be
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resisted and defended by counsel reasonably satisfactory to such Indemnified
Party. Each Indemnified Party shall, unless the Liquidity Agent, a Liquidity
Lender or other Indemnified Party has made the request described in the
preceding sentence and such request has been complied with, have the right to
employ its own counsel to investigate and control the defense of any matter
covered by such indemnity and the reasonable fees and expenses of such counsel
shall be at the expense of the Company.
(c) All obligations provided for in this Section 10.04 shall survive
any termination of this Agreement.
SECTION 10.05 Successors and Assigns. (a) This Agreement shall bind,
and the benefits hereof shall inure to, the Company, the Liquidity Agent and the
Liquidity Lenders and their respective successors and assigns; provided that the
Company may not transfer or assign any or all of its rights and obligations
hereunder without the prior written consent of each Liquidity Lender.
(b) Any Liquidity Lender may sell, transfer or assign all or any
portion of its obligation to make Loans hereunder; provided that (i) the lender
proposing to purchase such obligation has short-term ratings in the Highest
Short-Term Rating Category from each Rating Agency and the Borrower shall have
consented in writing to such purchase (which consent shall not be unreasonably
withheld) and (ii) the lender proposing to purchase such obligation delivers
opinions of counsel in the form of Exhibit D hereto. Any such assignee shall
agree to be bound by the provisions of Section 10.19 hereof and the minimum
amount of any assignment will be $5,000,000.
(c) Each Liquidity Lender may sell participations in all or any part
of any Loan or Loans or its obligations to make Loans hereunder to another bank
or other entity, in which event the participant shall not have any rights under
the Facility Documents (the participant's rights against such Liquidity Lender
in respect of participation to be those set forth in the agreement executed by
such Liquidity Lender in favor of the participant relating thereto) and all
amounts payable by the Company hereunder shall be determined as if such
Liquidity Lender had not sold such participation; provided that any such
participant shall be entitled to the benefits of the payments required to be
made by the Company pursuant to Sections 3.09, 3.10, 3.11, 3.12 and 10.04 hereof
to the extent that such Liquidity Lender would be entitled to such benefits if
the participation had not been entered into or sold; and provided, further, that
no Liquidity Lender shall transfer, grant or assign any participation under
which the participant shall have rights to approve any amendment to or waiver of
this Agreement or any other Facility Document except to the extent such
amendment or waiver would (x) extend the final scheduled maturity of any Loan or
Loan Note in which such participant is participating, or reduce the rate or
extend the time of payment of interest or fees thereon (except in connection
with a waiver of the applicability of any post-default increase in interest
rates), or reduce the principal amount thereof, or increase such participant's
participating interest in any Commitment over the amount thereof then in effect
(it being understood that a waiver of any Default or Event of Default or a
mandatory prepayment, shall not constitute a change in the terms of any
Commitment), (y) release all or substantially all of the Collateral, or (z)
permit the assignment or transfer by the Company of any of its rights and
obligations under this Agreement. The Company agrees that if
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amounts outstanding under this Agreement and the Notes are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, to the extent permitted by law, each
participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Liquidity Lender under this Agreement or any Note; provided that such
participant shall only be entitled to such right of setoff if it shall have
agreed in the agreement pursuant to which it shall have acquired its
participating interest to share with the Liquidity Lenders the proceeds thereof
as provided in Section 10.11. In the event of any such sale by a Liquidity
Lender of participating interests to a participant, such Liquidity Lender's
obligations under this Agreement shall remain unchanged, such Liquidity Lender
shall remain solely responsible for the performance thereof, such Liquidity
Lender shall remain the holder of any such Loan Note for all purposes under this
Agreement, and the Company and the Liquidity Agent shall continue to deal solely
and directly with such Liquidity Lender in connection with such Liquidity
Lender's rights and obligations under this Agreement.
(d) Each Liquidity Lender may furnish any information concerning the
Company or the Borrower, in the possession of such Liquidity Lender from time to
time to assignees and participants (including the prospective assignees and
participants); provided, however, that any such assignee or participant shall
agree to be bound by the provisions of Section 10.19 hereof.
(e) If any interest in this Agreement or any Note is transferred,
pursuant to subsection (b) or (c), above to any transferee which is not already
a Liquidity Lender hereunder and which is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) for federal income tax
purposes, the respective assignee Liquidity Lender shall provide to the Company
and the Liquidity Agent the appropriate Internal Revenue Service Forms described
in Section 3.11(b).
(f) Nothing herein shall prohibit any Liquidity Lender from pledging
or assigning any Note and its rights hereunder to any lender affiliated with the
Federal Reserve System in accordance with applicable law and the regulations of
the Board of Governors of the Federal Reserve System.
(g) Any Designating Liquidity Lender may at any time designate not
more than one Designated Liquidity Lender to fund Loans on behalf of such
Designating Liquidity Lender subject to the terms of this Section 10.05. No
Designating Liquidity Lender may have more than one Designated Liquidity Lender
at any time. Such designation may occur either by the execution of the signature
pages hereof by such Designating Liquidity Lender and Designated Liquidity
Lender next to the appropriate "Designating Liquidity Lender" and "Designated
Liquidity Lender" captions, or by execution by such parties of a Designation
Agreement subsequent to the date hereof; provided that any Designating Liquidity
Lender and its Designated Liquidity Lender executing the signatures pages hereof
as "Designating Liquidity Lender" and "Designated Liquidity Lender",
respectively, on the date hereof shall be deemed to have executed a Designation
Agreement, and shall be bound by the respective representations, warranties and
covenants contained therein, and such designation shall be conclusively deemed
to be accepted by the Company and the Liquidity Agent. The parties to each such
designation
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occurring subsequent to the execution date hereof shall execute and
deliver to the Liquidity Agent and the Company for their acceptance a
Designation Agreement. Upon such receipt of an appropriately completed
Designation Agreement executed by a Designating Liquidity Lender and a designee
representing that it is a Designated Liquidity Lender and consented to by the
Company, the Liquidity Agent will accept such Designation Agreement and will
give prompt notice thereof to the Company and the other Liquidity Lenders,
whereupon, (i) the Company shall execute and deliver to the Designating
Liquidity Lender a Designated Liquidity Lender Note payable to the order of the
Designated Liquidity Lender, (ii) from and after the effective date specified in
the Designation Agreement, the Designated Liquidity Lender shall become a party
to this Agreement with a right to make Loans on behalf of its Designating
Liquidity Lender pursuant to Section 3.17, and (iii) the Designated Liquidity
Lender shall not be required to make payments with respect to any obligations in
this Agreement except to the extent of excess cash flow of such Designated
Liquidity Lender which is not otherwise required to repay obligations of such
Designated Liquidity Lender which are then due and payable; provided, however,
that regardless of such designation and assumption by the Designated Liquidity
Lender, the Designating Liquidity Lender shall be and remain obligated to the
Company, the Liquidity Agent and the Liquidity Lenders for each and every of the
obligations of the Designating Liquidity Lender and its related Designated
Liquidity Lender with respect to this Agreement, including, without limitation,
any indemnification obligations under this Agreement and any sums otherwise
payable to the Company by the Designated Liquidity Lender. Each Designating
Liquidity Lender, or a specified branch or affiliate thereof, shall serve as the
administrative agent of its Designated Liquidity Lender and shall on behalf of
its Designated Liquidity Lender: (i) receive any and all payments made for the
benefit of such Designated Liquidity Lender and (ii) give and receive all
communications and notices and take all actions hereunder, including, without
limitation, votes, approvals, waivers, consents and amendments under or relating
to this Agreement and the other Facility Documents. Any such notice,
communications, vote, approval, waiver, consent or amendment shall be signed by
a Designating Liquidity Lender, or specified branch or affiliate thereof, as
administrative agent for its Designated Liquidity Lender and need not be signed
by such Designated Liquidity Lender on its own behalf. The Company, the
Liquidity Agent and the Liquidity Lenders may rely thereon without any
requirement that the Designated Liquidity Lender sign or acknowledge the same.
No Designated Liquidity Lender may assign or transfer all or any portion of its
interest hereunder or under any other Facility Document, other than via an
assignment to its Designating Liquidity Lender or Liquidity Bank, if any.
SECTION 10.06 Notices, Requests, Demands. Except where telephonic
instructions or notices are authorized herein to be given, all notices, demands,
instructions and other communications required or permitted to be given to or
made upon any party hereto shall be in writing and shall be personally delivered
or sent by registered, certified or express mail, postage prepaid, return
receipt requested, or by nationally recognized overnight courier, or by
facsimile transmission (with telephonic confirmation of receipt) and shall be
deemed to be given for purposes of this Agreement on the day that such writing
is delivered to the intended recipient thereof in accordance with the provisions
of this Section. Unless otherwise specified in a notice sent or delivered in
accordance with the foregoing provisions of this Section, notices, demands,
instructions and other communications in writing shall be given to or made upon
the respective
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43
parties hereto at their respective addresses (or to their respective facsimile
transmission numbers) indicated below, and, in the case of telephonic
instructions or notices, by calling the telephone number or numbers indicated
for such party below, or at any other address (including any other facsimile
transmission numbers) or telephone number or numbers, as the case may be, as any
party hereto may notify to the other parties hereto in accordance with the
provisions of this Section 10.06.
If to the Company:
[SPV]
Attention:
Telephone. No.
Telecopier No.
with a copy to:
Global Secutirization Services, LLD
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Borrower:
Nuveen Senior Income Fund
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
If to the Liquidity Agent:
Deutsche Bank AG, New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
If to the Liquidity Lenders, to the respective addresses set
forth underneath their respective names on the signature pages
hereto.
If to Fitch:
Fitch, IBCA
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44
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset CP Group
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.(▇▇▇) ▇▇▇-▇▇▇▇
If to Moody's:
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
-------------------
Telephone No. (212)
-----------
Telecopier No.(212)
-----------
If to S&P's:
Standard & Poor's
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
------------------
Telephone No. (212)
----------
Telecopier No.(212)
----------
SECTION 10.07 Survival of Representations and Warranties. All
representations and warranties contained in Article IX shall survive the
execution and delivery of this Agreement and the Loan Notes and shall continue
only so long as and until such time as all indebtedness hereunder and under the
Commercial Paper and the Loan Notes shall have been paid in full and the
Liquidity Lenders no longer have any Liquidity Commitment hereunder.
SECTION 10.08 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND UNDER THE LOAN NOTES SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION 10.09 Waiver of Jury Trial. EACH OF THE COMPANY, THE LIQUIDITY
AGENT AND THE LIQUIDITY LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY
OF THE FACILITY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
SECTION 10.10 Counterparts. This Agreement may be executed in any
number of copies, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument.
Complete counterparts of this Agreement shall be lodged with the Company and the
Liquidity Agent.
SECTION 10.11 Adjustments. If any Liquidity Lender (a "Benefited
Liquidity
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45
Lender") shall at any time receive any payment of all or part of its
Loans, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily) in a greater proportion than any such
payment to and collateral received by any other Liquidity Lender, if any, in
respect of such other Liquidity Lender's Loans, or interest thereon, such
Benefited Liquidity Lender shall immediately purchase for cash from the other
Liquidity Lenders such portion of each such other Liquidity Lender's Loan, or
shall provide such other Liquidity Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Liquidity Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Liquidity Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefited Liquidity Lender, such purchase shall
be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest. The Company agrees, to the extent it may do
so under applicable law, that each Liquidity Lender so purchasing a portion of
another Liquidity Lender's Loan may exercise all rights of payment with respect
to such portion as fully as if such Liquidity Lender were the direct holder of
such portion.
SECTION 10.12 Further Assurances. The Company agrees to do such
further acts and things and to execute and deliver to the Liquidity Agent such
additional assignments, agreements, powers and instruments, as the Liquidity
Agent may require or deem advisable to carry into effect the purposes of this
Agreement or to better assure and confirm unto the Liquidity Agent its rights,
powers and remedies hereunder.
SECTION 10.13 No Bankruptcy Petition Against the Company. Each
Liquidity Lender and the Liquidity Agent severally and not jointly, hereby
covenants and agrees that, prior to the date which is one year and one day after
the payment in full of all outstanding Commercial Paper, it will not institute
against, or join any other Person in instituting against, the Company any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States.
SECTION 10.14 No Recourse. The obligations of the Company under this
Agreement, the Loan Notes, the Depositary Agreement, the Security Agreement, the
Control Agreement and all other Facility Documents are solely the corporate
obligations of the Company. No recourse shall be had for the payment of any
amount owing in respect of Loans or for the payment of any fee hereunder or any
other obligation or claim arising out of or based upon this Agreement, the Loan
Notes, the Depositary Agreement, the Security Agreement, the Control Agreement
or any other Facility Document against any shareholder, employee, officer,
director, agent or incorporator of the Company.
SECTION 10.15 Appointment of the Liquidity Agent. (a) Each Liquidity
Lender hereby irrevocably appoints Deutsche Bank AG, New York Branch, as its
Liquidity Agent hereunder, under the Depositary Agreement, the Control Agreement
and under the Security Agreement and hereby authorizes the Liquidity Agent to
take such action on its behalf and to exercise such rights, remedies, powers and
privileges hereunder or thereunder as are specifically authorized to be
exercised by the Liquidity Agent by the terms hereof or thereof, together with
such rights, remedies, powers and privileges as are reasonably incidental
thereto. The Liquidity Agent may execute any of its duties hereunder, under the
Depositary Agreement,
-45-
46
the Control Agreement and under the Security Agreement, by or through agents or
employees. The relationship between the Liquidity Agent and each Liquidity
Lender is that of agent and principal only, and nothing herein shall be deemed
to constitute the Liquidity Agent a trustee for any Liquidity Lender or impose
on the Liquidity Agent any obligation other than those for which express
provision is made herein or in the Security Agreement, the Control Agreement or
the Depositary Agreement.
(b) Except as required by the specific terms of this Agreement, the
Depositary Agreement, the Control Agreement and the Security Agreement, the
Liquidity Agent shall not have any duty to exercise any right, power, remedy or
privilege granted to it hereby or thereby, or to take any affirmative action or
exercise any discretion hereunder or thereunder, including, without limitation,
the right of the Liquidity Agent to instruct the Depositary not to issue or
deliver Commercial Paper under the provisions of Section 2.01(a) hereof and the
Depositary Agreement, unless directed to do so by the Required Liquidity Lenders
(and shall be fully protected in acting or refraining from acting pursuant to
such directions which shall be binding upon the Liquidity Lenders), and shall
not, without the prior approval of the Required Liquidity Lenders (or, to the
extent provided in Section 10.03, the prior approval of all Liquidity Lenders),
consent to any material departure by the Company or the Depositary from the
terms hereof or thereof, waive any default on the part of any such party under
any such agreement or instrument or amend, modify, supplement or terminate, or
agree to any surrender of, any such agreement or instrument; provided that the
foregoing limitation on the authority of the Liquidity Agent is for the benefit
of the Liquidity Lenders and shall not impose any obligation on the Depositary
or the Company to investigate or inquire into the authority of the Liquidity
Agent in any circumstances, and the Depositary and the Company shall be fully
protected in carrying out any request, direction or instruction made or given to
the Depositary or the Company by the Liquidity Agent in the exercise of any
right, power, remedy or privilege granted to the Liquidity Agent hereby or by
the terms of the Depositary Agreement or the Security Agreement, receiving or
acting upon any consent or waiver granted to the Company or the Depositary
hereunder or thereunder by the Liquidity Agent, or entering into any amendment
or modification of, or supplement to, this Agreement, the Depositary Agreement,
the Control Agreement or the Security Agreement, and neither the Depositary nor
the Company shall be subject to the claims of any Liquidity Lender by reason of
the lack of authority of the Liquidity Agent to take any such action nor shall
the lack of authority on the part of the Liquidity Agent in any circumstance
give rise to any claim on the part of the Depositary or the Company against any
Liquidity Lender; and provided further, that the Liquidity Agent shall not be
required to take any action which exposes the Liquidity Agent to personal
liability or which is contrary to this Agreement, the Depositary Agreement, the
Security Agreement, the Control Agreement or applicable law.
(c) Neither the Liquidity Agent nor any Liquidity Lender, or any of
its or their respective directors, officers, agents or employees, shall be
liable to the Liquidity Agent, any other Liquidity Lender, the Depositary or the
Company, as the case may be, for any action taken or omitted to be taken by it
or them hereunder, under the Depositary Agreement, the Security Agreement, the
Control Agreement or in connection herewith or therewith, except for its or
their own gross negligence or willful misconduct; nor shall the Liquidity Agent
or any Liquidity Lender be responsible to the Liquidity Agent or any other
Liquidity Lender, as the case may be,
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47
for the validity, effectiveness, value, sufficiency or enforceability against
the account debtors, the Company, the Depositary, the Collateral Agent or the
Borrower of the Collateral, this Agreement, the Depositary Agreement, the
Security Agreement, the Control Agreement, the Loan Notes or any other document
furnished pursuant hereto or thereto or in connection herewith or therewith.
Without limitation of the generality of the foregoing, the Liquidity Agent: (i)
may consult with legal counsel (including counsel for the Company), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to any Liquidity Lender and shall not be responsible to any
Liquidity Lender for any statements, warranties or representations made in or in
connection with this Agreement, the Depositary Agreement, the Security
Agreement, the Control Agreement, any other document furnished pursuant hereto
or thereto or in connection herewith or therewith; (iii) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement, the Depositary Agreement, the
Security Agreement, the Control Agreement or the Loan Notes, on the part of any
party hereto or thereto or to inspect the property (including the books and
records) of the Company; (iv) shall not be responsible to any Liquidity Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the Depositary Agreement, the Security
Agreement, the Control Agreement, the Loan Notes, or any other instrument or
document furnished pursuant hereto or thereto; and (v) shall incur no liability
under or in respect of this Agreement, the Depositary Agreement, the Control
Agreement or the Security Agreement by acting upon any notice, consent,
certificate or other instrument or writing (which may be by facsimile
transmission or telex) or telephonic instruction, or notices to the extent
authorized herein or therein believed by it to be genuine and signed or sent by
the proper party or parties.
(d) Each Liquidity Lender hereby agrees, in the ratio that such
Liquidity Lender's Percentage of the Liquidity Commitment hereunder bears to the
Liquidity Commitment, to indemnify and hold harmless the Liquidity Agent, from
and against any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, damages, costs and expenses of
any kind whatsoever (including, without limitation, fees and expenses of
attorneys, accountants and experts) incurred or suffered by the Liquidity Agent
in its capacity as Liquidity Agent hereunder as a result of any action taken or
omitted to be taken by the Liquidity Agent in such capacity or otherwise
incurred or suffered by, made upon, or assessed against the Liquidity Agent in
such capacity; provided that no Liquidity Lender shall be liable for any portion
of any such losses, liabilities (including liabilities for penalties), actions,
suits, judgments, demands, damages, costs or expenses resulting from or
attributable to gross negligence or willful misconduct on the part of the
Liquidity Agent or its officers, employees or agents. Without limiting the
generality of the foregoing, each Liquidity Lender hereby agrees, in the ratio
aforesaid, to reimburse the Liquidity Agent promptly following its demand for
any out-of-pocket expenses (including, without limitation, attorneys' fees and
expenses) incurred by the Liquidity Agent hereunder, under the Depositary
Agreement, the Control Agreement or the Security Agreement, and not promptly
reimbursed to the Liquidity Agent by the Company. Each Liquidity Lender's
obligations under this paragraph shall survive the termination of this Agreement
and the discharge of the Company's obligations hereunder.
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48
(e) The Liquidity Lenders agree that with respect to their obligation
to lend under this Agreement, the Loans made by them and the Loan Note issued to
such Liquidity Lenders, the Liquidity Agent shall have the same rights and
powers hereunder as any other Liquidity Lender or holder of a Loan Note and may
exercise the same as though it were not performing the duties specified herein;
and the terms "Liquidity Lenders," "holders of Notes," or any similar terms
shall, unless the context clearly otherwise indicates, include the Liquidity
Agent in its individual capacity. The Liquidity Agent may accept deposits from,
lend money to, and generally engage in any kind of banking, trust or other
business with the Company, the Borrower or any of their affiliates as if it were
not performing the duties specified herein, and may accept fees and other
consideration from the Company, or any of their affiliates for services in
connection with this Agreement and otherwise without having to account for the
same to any Liquidity Lender.
(f) Each Liquidity Lender expressly agrees that the Liquidity Agent
shall enter into the Security Agreement on its behalf, and expressly consents to
the priority of payments set forth in Section 5 and Section 13 of the Security
Agreement.
SECTION 10.16 Resignation by the Liquidity Agent. The Liquidity Agent
may resign as such at any time upon at least thirty days' prior written notice
to the Borrower, the Company, the Depositary, the Collateral Agent and the
Liquidity Lenders; provided, however, that the resignation of the Liquidity
Agent shall not be effective until the Liquidity Lenders shall have agreed to
the appointment of another Liquidity Lender to perform the duties of the
Liquidity Agent hereunder and the Company shall have consented to such
appointment, which consent shall not be unreasonably withheld. In the event of
such resignation, the Required Liquidity Lenders shall as promptly as
practicable appoint a successor agent to replace the Liquidity Agent.
Notwithstanding the resignation of the Liquidity Agent hereunder, the provisions
of Section 10.15 shall continue to inure to the benefit of the Liquidity Agent
in respect of any action taken or omitted to be taken by the Liquidity Agent in
its capacity as such while it was such under this Agreement.
SECTION 10.17 Knowledge of Company. The Company shall be entitled to
assume that no Event of Default or Default shall have occurred and be
continuing, unless an officer or a director of the Company has actual knowledge
thereof or the Company has received notice from any Person that such Person
considers that such an Event of Default or Default has occurred and is
continuing.
SECTION 10.18 Opinion of Counsel of the Liquidity Lenders. Each
Liquidity Lender shall provide to the Company an opinion of counsel,
substantially in the form of Exhibit D hereto, or such other document as shall
be acceptable to the Rating Agencies, to the effect that this Agreement is a
legal and validly binding obligation of such Liquidity Lender and is enforceable
against such Liquidity Lender in accordance with its terms.
SECTION 10.19 Confidentiality. The Liquidity Agent and each Liquidity
Lender 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 without limitation
accountants, legal counsel and other advisors (it being
-48-
49
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and will have agreed to keep such
Information confidential), (b) to the extent required by any legal or regulatory
authority, (c) to the extent required by applicable laws or regulations 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, provided, however, that such Information may only be disclosed to the
extent necessary and material to the prosecution or defense of such suit, action
or proceeding for the enforcement of rights hereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
subsection, to any assignee of or participant in, or any prospective assignee of
or participant in, any of its rights under this Agreement, (g) with the consent
of the Company, (h) to the extent such Information becomes (i) publicly
available other than as a result of a breach of this Section, or (ii) becomes
available to the Liquidity Agent or any Liquidity Lender on a non-confidential
basis from a source other than the Company, the Liquidity Agent or any Liquidity
Lender. Notwithstanding the foregoing provisions of this Section, the Company
hereby consents to the disclosure of any non-public information with respect to
it which is related to this transaction by any Designated Liquidity Lender to
any rating agency, commercial paper dealer, or provider of a surety, guaranty or
credit or liquidity enhancement to such Designated Liquidity Lender. For
purposes of this Section, "Information" means all information received from the
Company relating to the Company or its business, other than any such information
that is available to the Liquidity Agent or any Liquidity Lender on a
non-confidential basis prior to disclosure by the Company.
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50
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
[SPV]
By:
--------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
as Liquidity Agent
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
as Syndication Agent
51
EXHIBIT A-1
FORM OF REVOLVING LOAN NOTE
$___________(1) New York, New York
____________, 2000
On the Liquidity Termination Date (as defined in the Liquidity
Agreement hereinafter referred to) the undersigned, a Delaware limited liability
company (the "Company"), FOR VALUE RECEIVED, promises to pay to the order of
________________(2) (the "Liquidity Lender"), at the office of Deutsche Bank AG,
New York Branch (the "Liquidity Agent") at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, the principal sum of ____________(3) United States Dollars (U.S.
$_________(1)) or, if less, the aggregate unpaid principal amount of all
Revolving Loans made by the Liquidity Lender to the Company pursuant to the
Liquidity Agreement.
The Company also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) at the rates per annum specified in
Section 3.06 of the Liquidity Agreement and, after maturity, until paid, at the
rates per annum specified in Section 3.06 of the Liquidity Agreement, said
interest to be payable to the Liquidity Lender at the aforesaid office of the
Liquidity Agent on such dates as are specified in the Liquidity Agreement, and
at maturity (whether by acceleration or otherwise).
Payments of both principal and interest are to be made in lawful money
of the United States of America and in immediately available funds.
This Revolving Loan Note evidences indebtedness incurred under, and is
subject to the terms and provisions of and entitled to the benefits of, a
Liquidity Agreement, dated as of ____________, 2000, as from time to time
amended (the "Liquidity Agreement"), among the Company, certain lenders
(including the Liquidity Lender) and the Liquidity Agent. Reference is hereby
made to the Liquidity Agreement for a statement of its terms and provisions,
including those under which this Revolving Loan Note may be paid prior to its
due date or its due date accelerated.
This Revolving Loan Note is entitled to the benefits of the Security
Agreement,
----------
1 Insert amount equal to appropriate Liquidity Lender's Percentage of the
Liquidity Commitment in figures.
2 Insert name of Liquidity Lender.
3 Insert amount equal to appropriate Liquidity Lender's Percentage of
Liquidity Commitment in words.
52
EXHIBIT A-1
PAGE 52
dated as of ____________, 2000 as from time to time amended, among the Company,
the Borrower and the Collateral Agent.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS REVOLVING LOAN NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[SPV]
By:__________________________________
Name:
Title:
53
EXHIBIT A-1
PAGE 53
Amount of Amount of Unpaid Principal Name of Person
Date Notation Revolving Loan Principal Paid Balance of Note Making
------------- -------------- -------------- --------------- --------------
54
EXHIBIT A-2
FORM OF REFUNDING LOAN NOTE
$_______________1 New York, New York
____________, 2000
On the Liquidity Termination Date (as defined in the Liquidity
Agreement hereinafter referred to), the undersigned, a Delaware limited
liability company (the "Company"), FOR VALUE RECEIVED, promises to pay to the
order of ____________________________(2) (the "Liquidity Lender"), at the office
of Deutsche Bank AG, New York Branch (the "Liquidity Agent") at ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal sum of _______________(3) United
States Dollars (U.S. $_________(1)) or, if less, the aggregate unpaid principal
amount of all Refunding Loans made by the Liquidity Lender to the Company
pursuant to the Liquidity Agreement.
The Company also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) at the rate per annum specified in
Section 3.06 of the Liquidity Agreement and, after maturity, until paid, at the
rate per annum specified in Section 3.06 of the Liquidity Agreement, said
interest to be payable to the Liquidity Lender at the aforesaid office of the
Liquidity Agent on such dates as are specified in the Liquidity Agreement, and
at maturity (whether by acceleration or otherwise).
Payments of both principal and interest are to be made in lawful money
of the United States of America and in immediately available funds.
This Refunding Loan Note evidences indebtedness incurred under, and is
subject to the terms and provisions of and entitled to the benefits of, a
Liquidity Agreement, dated as of ____________, 2000, as from time to time
amended (the "Liquidity Agreement"), among the Company, certain lenders
(including the Liquidity Lender) and the Liquidity Agent. Reference is hereby
made to the Liquidity Agreement for a statement of its terms and provisions,
including those under which this Refunding Loan Note may be paid prior to its
due date or its due date accelerated.
This Refunding Loan Note is entitled to the benefits of the Security
Agreement,
----------
1 Insert amount equal to Percentage of Liquidity Commitment of appropriate
Liquidity Lender in figures.
2 Insert name of Liquidity Lender.
3 Insert amount equal to Percentage of Liquidity Commitment of appropriate
Liguidity Lender in words.
55
EXHIBIT A-2
PAGE 55
dated as of _________ __, 2000 as from time to time amended, among the Company,
the Borrower and the Collateral Agent.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS REFUNDING LOAN NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[SPV]
By:___________________________________
Name:
Title:
56
EXHIBIT A-2
PAGE 56
Amount of Amount of Unpaid Principal Name of Person
Date Notation Revolving Loan Principal Paid Balance of Note Making
------------- -------------- -------------- --------------- --------------
57
EXHIBIT B
COPY OF DEPOSITARY AGREEMENT
58
EXHIBIT A-2
PAGE 58
COPY OF MANAGEMENT AGREEMENT
59
EXHIBIT D-1
PAGE 59
FORM OF U.S. LIQUIDITY LENDER COUNSEL OPINION
____________, 2000
To The Persons Listed
On Schedule I Hereto
Dear Sirs:
We have acted as special counsel to [name of lender] ("Lender"), in
connection with the preparation, execution and delivery of the Liquidity
Agreement dated as of _________ __, 2000 (the "Liquidity Agreement") by and
among [SPV], a Delaware limited liability company (the "Company"), the lenders
parties thereto (the "Liquidity Lenders"), Deutsche Bank AG, New York Branch, as
Liquidity Agent, ___________, as Documentation Agent and Deutsche Bank
Securities Inc., as Arranger and Syndication Agent. All defined terms used
herein shall have the meaning assigned to them in the Liquidity Agreement unless
otherwise provided herein.
In this connection, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such instruments, documents and
records as we have deemed relevant and necessary for purposes of our opinion
hereinafter set forth. As to certain factual matters involved in this opinion
which were not independently established, we have relied, to the extent we have
deemed such reliance proper, on certificates or other documents obtained from
public officials or officers of the Lender setting forth such matters.
Based upon, and subject to, the foregoing, we are of the opinion that:
1. The Lender has been duly incorporated and is validly existing and in
good standing under the laws of the State of ___________ with the corporate
power and authority to own its assets and to transact the business in which it
is now engaged.
2. The obligation of the Lender to make Loans under the Liquidity
Agreement is an obligation which the Lender is permitted to undertake under
applicable law.
3. The Liquidity Agreement has been duly authorized, executed and
delivered by the Lender.
We express no opinion with respect to enforceability by the Company of
its right to receive Loans in the event of the Company's bankruptcy.
We express no opinion as to any laws other than the laws of the State
of New
60
EXHIBIT D-1
PAGE 60
York and the federal laws of the United States.
We are furnishing this opinion to you solely for your benefit and this
opinion is not to be used, circulated, quoted or otherwise referred to for any
purpose without our prior written approval in each instance.
Very truly yours,
61
SCHEDULE I
TO EXHIBIT D-1
62
EXHIBIT D-2
FORM OF FOREIGN LIQUIDITY LENDER
NEW YORK COUNSEL OPINION
____________, 2000
To The Persons Listed
On Schedule I Hereto
Dear Sirs:
We have acted as special New York counsel to [Name of Lender]
("Lender"), in connection with the preparation, execution and delivery of the
Liquidity Agreement dated as of _________ __, 2000 (the "Liquidity Agreement")
among [SPV], a Delaware limited liability company (the "Company"), the lenders
parties thereto (the "Liquidity Lenders," including, without limitation, the
[New York] Branch of Lender ("Branch")), Deutsche Bank AG, New York Branch, as
Liquidity Agent, __________, as Documentation Agent and Deutsche Bank Securities
Inc., as Arranger and Syndication Agent. All defined terms used herein shall
have the meanings assigned to them in the Liquidity Agreement unless otherwise
provided herein.
In this connection, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such instruments, documents and
records as we have deemed relevant and necessary for purposes of our opinion
hereinafter set forth. As to certain factual matters involved in this opinion
which were not independently established, we have relied, to the extent we have
deemed such reliance proper, on certificates or other documents obtained from
public officials or officers of Lender setting forth such matters.
With your permission, based upon an opinion of _____________, [local]
counsel to Lender (a copy of which is annexed hereto as Annex I), and a
certificate of the Branch (a copy of which is annexed hereto as Annex II), we
have assumed that:
(a) Lender has been duly organized and is validly existing under the
laws of _______________________;
(b) Lender, acting through the Branch, has all requisite corporate
power and authority under the laws of ______________ to execute, deliver and
perform the Liquidity Agreement;
(c) the Liquidity Agreement has been duly authorized, executed and
delivered by Lender acting through the Branch; and
(d) the Liquidity Agreement, including the obligation of Lender, acting
through the Branch, to make Loans thereunder in accordance with the terms
thereof, constitutes a valid and legally binding obligation of Lender, acting
through the Branch, under the laws of
63
EXHIBIT D-2
PAGE 63
________________.
Based upon the foregoing and subject to the qualifications set forth
herein, it is our opinion that under the laws of the State of [New York] and the
United States:
1. The Branch is licensed by [the Superintendent of Banks of the State
of New York] and authorized to transact business as a [New York] branch of
Lender in accordance with the provision of Article V of the Banking Law of the
State of New York.]
2. The Branch has the power and authority under [the Banking Law of the
State of New York] to make Loans under the Liquidity Agreement.
3. The Liquidity Agreement, including the obligation of the Branch to
make Loans thereunder in accordance with the terms thereof, constitutes the
valid and binding obligation of the Branch, enforceable against the Branch in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or liquidation, moratorium or other
similar laws affecting the enforcement of creditors' rights in general as such
laws would apply in the event of the bankruptcy, insolvency, reorganization or
liquidation of, or similar occurrence with respect to, the Branch or Lender, or
in the event of any moratorium or similar occurrence affecting the Branch or
Lender or by general principles of equity.
Our opinion with respect to the enforceability of the obligation of the
Branch to make Loans under the Liquidity Agreement relates only to the
enforceability of the same against such Branch. We express no opinion as to the
enforceability by the Company of its right to receive Loans in the event of the
Company's bankruptcy.
We do not express any opinion herein concerning any other law than the
law of the State of New York and the federal law of the United States of
America.
This opinion is not to be used or relied upon by or published or
communicated to any other party for any other purpose whatsoever without our
prior written approval in each instance.
Very truly yours,
64
SCHEDULE I
TO EXHIBIT D-2
65
EXHIBIT D-3
FORM OF FOREIGN LIQUIDITY LENDER LOCAL COUNSEL OPINION
____________, 2000
To The Persons Listed
On Schedule I Hereto
Dear Sirs:
We have acted as counsel to [Name of Lender] ("Lender"), in connection
with the preparation, execution and delivery of the Liquidity Agreement dated as
of _________ __, 2000 (the "Liquidity Agreement") among [SPV], a Delaware
limited liability company (the "Company"), the lenders parties thereto (the
"Liquidity Lenders," including, without limitation, Lender acting through its
[New York] Branch (the "Branch"), Deutsche Bank AG, New York Branch, as
Liquidity Agent, ___________, as Documentation Agent and Deutsche Bank
Securities Inc., as Syndication Agent. All defined terms used herein shall have
the meanings assigned to them in the Liquidity Agreement unless otherwise
provided herein.
In this connection, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such instruments, documents and
records as we have deemed relevant and necessary for purposes of our opinion
hereinafter set forth. As to certain factual matters involved in this opinion
which were not independently established, we have relied, to the extent we have
deemed such reliance proper, on certificates or other documents obtained from
public officials or officers of Lender setting forth such matters.
Based upon, and subject to, the foregoing, we are of the opinion that:
1. Lender has been duly organized and is validly existing as a bank
under the laws of [specify foreign jurisdiction] and has full power and
authority under the laws of [specify foreign jurisdiction] to maintain the
Branch in [New York], New York].
2. Lender has all requisite corporate power to execute, deliver and
perform its obligations under the Liquidity Agreement and all transactions
contemplated thereby.
3. The Liquidity Agreement has been duly authorized, executed and
delivered by Lender. Assuming that the Liquidity Agreement constitutes the
legal, valid and binding obligation of Lender under the laws of the State
of [New York] by which it is governed, the Liquidity Agreement will
constitute the legal, valid and binding obligation of Lender, enforceable
against Lender in accordance with its terms under the laws of [specify
foreign jurisdiction], except as such enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, liquidation, readjustment of debt
or other similar laws affecting the enforcement of creditors' rights as
they may be applied in the event of the bankruptcy, insolvency,
reorganization, liquidation, readjustment of debt or similar event of
Lender, or (ii) a moratorium or similar occurrence affecting Lender.
4. No license, consent or approval of, or registration with, any
governmental department, agency commission or regulatory authority of
[specify foreign jurisdiction] is
66
EXHIBIT D-3
PAGE 66
required in connection with the execution or performance of the
Liquidity Agreement by Lender to make the Liquidity Agreement fully
enforceable in accordance with its terms.
5. Neither the execution, delivery or performance by Lender of the
Liquidity Agreement, nor compliance by Lender with the terms and
provisions thereof, will (i) contravene any provision of any law of
[specify foreign jurisdiction] or any applicable rules or regulations
thereunder, (ii) violate any provision of the [organizational documents]
of Lender, (iii) violate the provisions of any order, decree or judgment
of any court or governmental agency or (iv) result in the breach of, or
constitute a default or require any consent under, or result in the
creation of any lien upon any property of Lender pursuant to, any
indenture, agreement or instrument to which Lender is a party or by which
Lender or its property may be bound.
6. The choice of the laws of the State of New York to govern the
Liquidity Agreement is valid under the laws of [specify foreign
jurisdiction] and would be given effect in any proceedings brought against
Lender in the courts of [specify foreign jurisdiction] provided that
[specify conditions, if any].
7. Any final and conclusive judgment obtained under the Liquidity
Agreement in a federal court of the United States sitting in the State of
[New York] or a court of the State of [New York] of competent jurisdiction
will be recognized by and be enforceable against Lender in an action
brought against Lender in [specify foreign jurisdiction], provided that
[specify conditions, if any].
8. The obligations of Lender to perform its obligations under the
Liquidity Agreement in accordance with the terms thereof will rank pari
passu with the deposit liabilities of Lender and other unsecured
obligations, whether now or hereafter outstanding, other than subordinated
obligations, if any, of Lender.
We express no opinion as to any matters governed by any laws other than
the laws of [specify foreign jurisdiction].
Very truly yours,
67
SCHEDULE I
TO EXHIBIT D-3
68
EXHIBIT E
COPY OF COMPANY COUNSEL OPINIONS
69
EXHIBIT D-3
PAGE 69
COPY OF BORROWER COUNSEL OPINION
70
EXHIBIT G
PAGE 70
FORM OF DESIGNATED LIQUIDITY LENDER NOTE
$__________ ____________, 2000
FOR VALUE RECEIVED, the undersigned, [SPV] (the "Borrower"), hereby
unconditionally promises to pay on the Liquidity Termination Date to the order
of _______________________ (the "Designated Liquidity Lender") at the office of
_________ located at _______________ in lawful money of the United States of
America and in immediately available funds, the principal amount of the lesser
of (a) _______________________ ($___________) and (b) the aggregate unpaid
principal amount of all Loans made by the Designated Liquidity Lender to the
undersigned pursuant to Sections 3.17 and 10.05 of the Liquidity Agreement
referred to below.
The undersigned further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time from the Closing
Date at the applicable rates per annum set forth in Section 3.06 of the
Liquidity Agreement referred to below until any such amount shall become due and
payable (whether at the stated maturity, by acceleration or otherwise), and
thereafter on such overdue amount at the rate per annum set forth in Section
3.06(c) of the Liquidity Agreement until paid in full (both before and after
judgment). Interest shall be payable in arrears on each applicable Interest
Payment Date, commencing on the first such date to occur after the date hereof
and terminating upon payment (including prepayment) in full of the unpaid
principal amount hereof; provided that interest accruing on any overdue amount
shall be payable on demand.
The holder of this Designated Liquidity Lender Note is authorized to
record the date and amount of each Loan made pursuant to Article III of the
Liquidity Agreement, its character as a Revolving Loan or Refunding Loan, the
date and amount of each payment or prepayment of principal with respect thereto,
the length of each Interest Period with respect to the portion of such Loan made
and/or maintained as a Eurodollar Rate Loan, the Eurodollar Rate with respect
thereto and each conversion made pursuant to Section 5.05 of the Liquidity
Agreement, on the schedules annexed hereto and made a part hereof, or on a
continuation thereof which shall be attached hereto and made a part hereof,
which recordation shall constitute prima facie evidence of the accuracy of the
information so recorded; provided that failure by the Designated Liquidity
Lender to make any such recordation on this Designated Liquidity Lender Note
shall not affect the obligations of the Borrower under this Designated Liquidity
Lender Note or under the Liquidity Agreement.
This Designated Liquidity Lender Note is one of the Designated
Liquidity Lender Notes referred to in the Liquidity Agreement dated as of
_________ __, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Liquidity Agreement"), among the Borrower, Liquidity Lenders parties
thereto, Deutsche Bank AG, New York Branch, as Liquidity Agent, ___________, as
Documentation Agent, and Deutsche Bank Securities Inc., as Arranger and
Syndication Agent is entitled to the benefits of the Liquidity Agreement and is
subject to optional and mandatory prepayment in whole or in part as provided in
the Liquidity Agreement. Terms used herein which are defined in the Liquidity
Agreement shall have such defined
71
EXHIBIT G
PAGE 71
meanings unless otherwise defined herein or unless the context otherwise
requires.
Upon the occurrence of any one or more of the Events of Default
specified in the Liquidity Agreement, and subject to compliance with the terms
of Article VIII of the Liquidity Agreement, all amounts then remaining unpaid on
this Designated Liquidity Lender Note shall become, or may be declared to be,
immediately due and payable, all as provided therein.
Except as otherwise provided in Article VIII of the Liquidity
Agreement, all parties now and hereafter liable with respect to this Designated
Liquidity Lender Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive presentment, demand, protest and all other notices of
any kind.
None of the shareholders, trustees, officers, employees and other
agents of the Borrower shall be personally bound by or liable for any
indebtedness, liability or obligation hereunder, nor shall resort be had to
their personal property for the satisfaction of any obligation or claim
hereunder.
THIS DESIGNATED LIQUIDITY LENDER NOTE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SPV]
By:
Name:
Title:
72
FORM OF DESIGNATION AGREEMENT
Dated ____________, 2000
Reference is made to that certain Liquidity Agreement dated as of
____________, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Liquidity Agreement") by and among [SPV] (the "Borrower"), the
Liquidity Lenders parties hereto, Deutsche Bank AG, New York Branch, as
Liquidity Agent (the "Liquidity Agent) _________, as Documentation Agent (the
"Documentation Agent") and Deutsche Bank Securities Inc., as Arranger and
Syndication Agent. Terms defined in the Liquidity Agreement are used herein with
the same meaning.
[NAME OF DESIGNATING LIQUIDITY LENDER] (the "Designating Liquidity
Lender"), [NAME OF DESIGNEE] (the "Designee"), the Liquidity Agent and Borrower
agree as follows:
1. Pursuant to 10.05(g) of the Liquidity Agreement, the Designating
Liquidity Lender hereby designates the Designee, and the Designee hereby accepts
such designation, to have a right to make Loans pursuant to Article III of the
Liquidity Agreement. Any assignment by Designating Liquidity Lender to Designee
of its rights to make a Loan pursuant to such Article III shall be effective at
the time of the funding of such Loan and not before such time.
2. Except as set forth in Section 7 below, the Designating Liquidity
Lender makes no representation or warranty and assumes no responsibility
pursuant to this Designation Agreement with respect to (a) any statements,
warranties or representations made in or in connection with any Facility
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Facility Document or any other instrument or
document furnished pursuant thereto and (b) the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under any Facility Document or any other instrument or document
furnished pursuant thereto.
3. The Designee (a) confirms that it has received a copy of each
Facility Document, together with copies of the financial statements referred to
in Section 7.01 of the Liquidity Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Designation Agreement; (b) agrees that it will
independently and without reliance upon the Liquidity Agent, the Designating
Liquidity Lender or any other Liquidity Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under any Facility Document; (c)
confirms that it is a Designated Liquidity Lender; (d) appoints and authorizes
the Liquidity Agent to take such action as Liquidity Agent on its behalf and to
exercise such powers and discretion under any Facility Document as are delegated
to the Liquidity Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (e) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of any Facility Document are required to be performed by it as a Liquidity
Lender.
(72)
73
PAGE
4. The Designee hereby appoints [DESIGNATING LIQUIDITY LENDER OR A
SPECIFIED BRANCH OR AFFILIATE OF DESIGNATING LIQUIDITY LENDER] as Designee's
agent and attorney in fact and grants to [DESIGNATING LIQUIDITY LENDER OR A
SPECIFIED BRANCH OR AFFILIATE OF DESIGNATING LIQUIDITY LENDER] an irrevocable
power of attorney to receive payments made for the benefit of Designee under the
Liquidity Agreement, to deliver and receive all communications and notices under
the Liquidity Agreement and other Facility Documents and to exercise on
Designee's behalf all rights to vote and to grant and make approvals, waivers,
consents or amendments to or under the Liquidity Agreement or other Facility
Documents. Any documents executed by such Designating Liquidity Lender on the
Designee's behalf in connection with the Liquidity Agreement or other Facility
Documents shall be binding on the Designee. The Borrower, the Liquidity Agent
and each of the Liquidity Lenders may rely on and are beneficiaries of the
preceding provisions.
5. Following the execution of this Designation Agreement by the
Designating Liquidity Lender, its Designee and the Borrower, it will be
delivered to the Liquidity Agent for acceptance and recording by the Liquidity
Agent. The effective date for this Designation Agreement (the "Effective Date")
shall be the date of acceptance hereof by the Liquidity Agent, unless otherwise
specified on the signature page thereto.
6. Each of the Borrower, the Designating Liquidity Lender and the
Liquidity Agent hereby (i) acknowledges that the Designee is relying on the
non-petition provisions of Section 10.13 of the Liquidity Agreement as agreed to
by all signatories thereto and (ii) reaffirms that it will not institute against
the Designee or join any other Person in instituting against the Designee any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any federal or state bankruptcy or similar law for one year and one day
after the payment in full of the latest maturing commercial paper note issued by
the Designee.
7. The Designating Liquidity Lender unconditionally agrees to pay or
reimburse the Designee and save the Designee harmless against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
or asserted by any of the parties to the Facility Documents against the
Designee, in its capacity as such, in any way relating to or arising out of this
Agreement or any other Facility Documents or any action taken or omitted by the
Designee hereunder or thereunder, provided that the Designating Liquidity Lender
shall not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
if the same results from the Designee's gross negligence or willful misconduct.
8. Upon such acceptance and recording by the Liquidity Agent, as of the
Effective Date, the Designee shall be a party to the Liquidity Agreement with
the right to make Loans as a Designated Liquidity Lender pursuant to Section
3.17 of the Liquidity Agreement and the rights and obligations of a Designated
Liquidity Lender related thereto; provided, however, that the Designee shall not
be required to make payments with respect to such obligations except to the
extent of excess cash flow of the Designee which is not otherwise required to
repay obligations of the Designated Liquidity Lender which are then due and
payable. Notwithstanding the foregoing, the [DESIGNATING LIQUIDITY LENDER OR A
SPECIFIED BRANCH OR AFFILIATE OF DESIGNATING LIQUIDITY LENDER], as
administrative agent for the Designee, shall be and remain
(73)
74
obligated to the Borrower, the Liquidity Agent and the Liquidity Lenders for
each and every of the obligations of the Designee and the Designating Liquidity
Lender with respect to the Liquidity Agreement, including, without limitation,
any indemnification obligations under the Liquidity Agreement and any sums
otherwise payable to the Borrower by the Designee.
9. This Designation Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
10. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Designation Agreement.
IN WITNESS WHEREOF, the Designating Liquidity Lender and the Designee
intending to be legally bound, have caused this Designation Agreement to be
executed by their officers thereunto duly authorized as of the date first above
written.
[NAME OF DESIGNATING
LIQUIDITY LENDER]
as Designating Liquidity Lender
By:
Title:
[NAME OF DESIGNEE], as Designee
By:
Title:
Lending Office (and address for
notices):
[SPV], as Borrower
By:
Title:
Accepted this ______ day
of _______________, ____ Effective Date:
Deutsche Bank AG, New York Branch,
as Liquidity Agent
By:
Title:
(74)
75
EXHIBIT I
FORM OF SECTION 3.11(b)(ii) CERTIFICATE
Reference is hereby made to the Liquidity Agreement, dated as of ____
___, 2000, among [SPV], as Borrower, the liquidity lenders parties thereto, as
Lenders, Deutsche Bank AG, New York Branch, as Liquidity Agent, ___________, as
Documentation Agent, and Deutsche Bank Securities Inc., as Arranger and
Syndication Agent, (as amended from time to time, the "Agreement"). Pursuant to
the provisions of Section 3.11(b) of the Agreement, the undersigned hereby
certifies that it is not a "bank" as such term is used in Section 881(c)(3)(A)
of the Internal Revenue Code of 1986, as amended.
[NAME OF BANK]
By: _________________________
Name
Title:
76
Page
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TABLE OF CONTENTS
-----------------
ARTICLE I
DEFINITIONS 1
SECTION 1.01 General 1
SECTION 1.02 Definitions 2
ARTICLE II
COMMERCIAL PAPER OPERATIONS 9
SECTION 2.01 Issuance of Commercial Paper 9
SECTION 2.02 Commercial Paper Account; Payment of Commercial Paper 10
ARTICLE III
REVOLVING CREDIT 10
SECTION 3.01 The Revolving Loans and the Refunding Loans 10
SECTION 3.02 Revolving Loans 10
SECTION 3.03 Refunding Loans 11
SECTION 3.04 Disbursement of Funds 12
SECTION 3.05 The Loan Notes 13
SECTION 3.06 Interest Rates and Payment Dates 14
SECTION 3.07 Computation of Interest and Fees 14
SECTION 3.08 Inability to Determine Interest Rate 15
SECTION 3.09 Illegality 15
SECTION 3.10 Requirements of Law 15
SECTION 3.11 Taxes 17
SECTION 3.12 Indemnity 19
SECTION 3.13 Pro Rata Borrowings 19
SECTION 3.14 Downgrading of Liquidity Lenders 19
SECTION 3.15 Subordination 20
SECTION 3.16 Mitigation of Costs; Replacement of Liquidity Lender 20
SECTION 3.17 Loans by Designated Liquidity Lenders 21
ARTICLE IV
OTHER CREDIT TERMS 21
SECTION 4.01 Liquidity Fee 21
SECTION 4.02 Termination of Liquidity Commitment 21
SECTION 4.03 Expiration of Liquidity Commitment; Extension of Liquidity
(76)
77
Page
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Commitment 22
SECTION 4.04 Use of Proceeds 23
ARTICLE V
PAYMENTS 23
SECTION 5.01 Payments on Non-Business Days 23
SECTION 5.02 Prepayments 23
SECTION 5.03 Attachments 24
SECTION 5.04 Method and Place of Payment, etc 24
SECTION 5.05 Conversion and Continuations 24
ARTICLE VI
CONDITIONS PRECEDENT 25
SECTION 6.01 Conditions to Effectiveness 25
(a) Agreement 25
(b) The Revolving Loan Notes and the Refunding Loan Notes 25
(c) Credit Agreement 25
(d) Security Agreement 25
(e) Control Agreement 26
(f) Depositary Agreement 26
(g) Other Agreements 26
(h) No Default 26
(i) Representations and Warranties 26
(j) Opinions of Counsel 26
(k) Closing Certificates 26
(l) Filings, etc 26
(m) Documentation and Proceedings 27
(n) Rating Letter 27
SECTION 6.02 Conditions to Each Credit Utilization 27
(a) No Default 27
(b) Representations and Warranties 27
(c) Commercial Paper Unavailable 27
(d) No Bankruptcy Proceeding 28
(e) Asset Coverage Ratio 28
SECTION 6.03 Conditions Precedent to the Making of Each Refunding Loan 28
ARTICLE VII
COVENANTS 28
SECTION 7.01 Affirmative Covenants 28
SECTION 7.02 Dividend Limitation 29
SECTION 7.03 Liens 29
SECTION 7.04 Other Debt; Receivables 29
(77)
78
Page
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SECTION 7.05 Guarantees, Loans, Advances and Other Liabilities 29
SECTION 7.06 Consolidation, Merger and Sale of Assets 29
SECTION 7.07 Certain Amendments and Waivers 30
SECTION 7.08 Capital Expenditures 30
SECTION 7.09 Other Business 30
SECTION 7.10 Amendment of Certificate of Incorporation or By-Laws 30
SECTION 7.11 Good Standing 30
SECTION 7.12 Restriction on Advances 30
SECTION 7.13 Separate Existence 30
SECTION 7.14 Notice of Default 32
ARTICLE VIII
EVENTS OF DEFAULT 32
SECTION 8.01 Event of Default 32
(a) Payments 32
(b) Representations 32
(c) Covenants 32
(d) Voluntary Bankruptcy Proceedings of the Company 32
(e) Involuntary Bankruptcy Proceedings against the Company 33
(f) Security Interest 33
(g) Judgments 33
ARTICLE IX
REPRESENTATIONS AND WARRANTIES 34
SECTION 9.01 Existence 34
SECTION 9.02 Corporate Power; Authorization; Enforceable Obligation 34
SECTION 9.03 No Legal Bar 35
SECTION 9.04 No Material Litigation 35
SECTION 9.05 Margin Regulations 35
SECTION 9.06 Security Interest 35
SECTION 9.07 Commercial Paper; Investment Company Act 35
SECTION 9.08 Parent of the Company 35
SECTION 9.09 Special Purpose Company 36
SECTION 9.10 Tax Returns and Payments 36
ARTICLE X
MISCELLANEOUS 36
SECTION 10.01 Descriptive Headings 36
SECTION 10.02 Exercise of Rights 36
SECTION 10.03 Amendment and Waiver 37
SECTION 10.04 Expenses and Indemnification 37
SECTION 10.05 Successors and Assigns 38
(78)
79
Page
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SECTION 10.06 Notices, Requests, Demands 41
SECTION 10.07 Survival of Representations and Warranties 43
SECTION 10.08 Governing Law 43
SECTION 10.09 Waiver of Jury Trial 43
SECTION 10.10 Counterparts 43
SECTION 10.11 Adjustments 43
SECTION 10.12 Further Assurances 44
SECTION 10.13 No Bankruptcy Petition Against the Company 44
SECTION 10.14 No Recourse 44
SECTION 10.15 Appointment of the Liquidity Agent 44
SECTION 10.16 Resignation by the Liquidity Agent 47
SECTION 10.17 Knowledge of Company 47
SECTION 10.18 Opinion of Counsel of the Liquidity Lenders 47
SECTION 10.19 Confidentiality 47
EXHIBIT A-1 Form of Revolving Loan Note
EXHIBIT A-2 Form of Refunding Loan Note
EXHIBIT B Copy of Depositary Agreement
EXHIBIT C Copy of Management Agreement
EXHIBIT D-1 Form of U.S. Liquidity Lender Counsel Opinion
EXHIBIT D-2 Form of Foreign Liquidity Lender New York Counsel Opinion
EXHIBIT D-3 Form of Foreign Liquidity Lender Local Counsel Opinion
EXHIBIT E Copy of Company Counsel Opinions
EXHIBIT F Copy of Borrower Counsel Opinion
EXHIBIT G Form of Designated Liquidity Lender Note
EXHIBIT H Form of Designation Agreement
EXHIBIT I Form of Section 3.11(b)(ii) Certificate
(79)