EXHIBIT 99.03
$1,145,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
October 6, 2000
among
HILTON HOTELS CORPORATION
The Banks Referred to Herein
FIRST UNION NATIONAL BANK and THE BANK OF NOVA SCOTIA,
as Documentation Agents
BANK OF AMERICA, N.A.,
as Syndication Agent
and
THE BANK OF NEW YORK,
as Administrative Agent
--------------------------------------
BANC OF AMERICA SECURITIES LLC
and
BNY CAPITAL MARKETS, INC.
Co-Lead Arrangers and Co-Book Managers
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.........................................................................................1
1.01 Definitions........................................................................................1
1.02 Accounting Terms and Determinations...............................................................14
1.03 Types of Borrowings...............................................................................14
ARTICLE II THE CREDITS.......................................................................................15
2.01 Commitments to Lend...............................................................................15
2.02 Notice of Committed Borrowings....................................................................15
2.03 Money Market Borrowings...........................................................................15
2.04 Conversion and Continuation of Loans..............................................................18
2.05 Notice to Banks; Funding of Loans.................................................................19
2.06 Notes.............................................................................................20
2.07 Interest Rates....................................................................................20
2.08 Agents' Fees......................................................................................22
2.09 Upfront Fees......................................................................................22
2.10 Facility Fees.....................................................................................22
2.11 Optional Termination of Commitments by Borrower...................................................22
2.12 Optional Termination of Commitments by the Banks..................................................22
2.13 Scheduled Termination of Commitments..............................................................23
2.14 Optional Prepayments..............................................................................23
2.15 General Provisions as to Payments.................................................................23
2.16 Funding Losses....................................................................................24
2.17 Computation of Interest and Fees..................................................................24
2.18 Withholding Tax Exemption.........................................................................24
2.19 Increased Commitments; Additional Banks...........................................................25
2.20 Judgment Currency.................................................................................25
2.21 Letters of Credit.................................................................................26
2.22 Regulation D Compensation.........................................................................28
2.23 Extension of the Termination Date.................................................................29
ARTICLE III CONDITIONS.......................................................................................30
3.01 Borrowings and Issuances of Letters of Credit.....................................................30
3.02 Effectiveness.....................................................................................30
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................................................................32
4.01 Corporate Existence and Power.....................................................................32
4.02 Corporate and Governmental Authorization; Contravention...........................................32
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4.03 Binding Effect....................................................................................32
4.04 Financial Information.............................................................................32
4.05 Litigation........................................................................................32
4.06 Compliance with ERISA.............................................................................33
4.07 Taxes.............................................................................................33
4.08 Significant Subsidiaries..........................................................................33
4.09 Not an Investment Company.........................................................................33
4.10 Environmental Matters.............................................................................33
4.11 Full Disclosure...................................................................................33
ARTICLE V COVENANTS..........................................................................................34
5.01 Information.......................................................................................34
5.02 Maintenance of Property; Insurance................................................................35
5.03 Conduct of Business and Maintenance of Existence..................................................36
5.04 Compliance with Laws..............................................................................36
5.05 Inspection of Property, Books and Records.........................................................36
5.06 Negative Pledge...................................................................................36
5.07 Consolidations, Mergers and Sales of Assets.......................................................37
5.08 Use of Proceeds...................................................................................37
5.09 Leverage Ratio....................................................................................37
5.10 Interest Coverage Ratio...........................................................................38
ARTICLE VI DEFAULTS..........................................................................................39
6.01 Events of Default.................................................................................39
6.02 Notice of Default.................................................................................40
6.03 Cash Cover........................................................................................40
ARTICLE VII THE AGENTS.......................................................................................41
7.01 Appointment and Authorization.....................................................................41
7.02 Agents and Affiliates.............................................................................41
7.03 Action by Agents..................................................................................41
7.04 Consultation with Experts.........................................................................41
7.05 Liability of Agent................................................................................41
7.06 Indemnification...................................................................................41
7.07 Credit Decision...................................................................................41
7.08 Successor Agent...................................................................................42
7.09 Agents' Fees......................................................................................42
ARTICLE VIII CHANGE IN CIRCUMSTANCES.........................................................................43
8.01 Basis for Determining Interest Rate Inadequate or Unfair..........................................43
8.02 Illegality........................................................................................43
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8.03 Increased Cost and Reduced Return.................................................................44
8.04 Base Rate Loans Substituted for Affected Fixed Rate Loans.........................................45
ARTICLE IX MISCELLANEOUS.....................................................................................46
9.01 Notices...........................................................................................46
9.02 No Waivers........................................................................................46
9.03 Expenses; Documentary Taxes; Indemnification......................................................46
9.04 Amendments and Waivers............................................................................47
9.05 Successors and Assigns............................................................................47
9.06 New York Law; Submission to Jurisdiction..........................................................49
9.07 Counterparts; Integration.........................................................................50
9.08 Several Obligations...............................................................................50
9.09 Sharing of Set-Offs...............................................................................50
9.10 WAIVER OF JURY TRIAL..............................................................................50
PRICING SCHEDULE
COMMITMENT SCHEDULE
Exhibit A - Compliance Certificate
Exhibit B - Note
Exhibit C - Pricing Certificate
Exhibit D - Form of Money Market Quote Request
Exhibit E - Form of Invitation for Money Market Quotes
Exhibit F - Form of Money Market Quote
Exhibit G - Legal Opinion
Exhibit H - Assignment and Assumption Agreement
Exhibit I - Extension Agreement
Exhibit J - Form of Notice of Committed Borrowing, Conversion
or Continuation
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AMENDED AND RESTATED CREDIT AGREEMENT
AGREEMENT dated as of October 6, 2000 among HILTON HOTELS CORPORATION, the
Banks party hereto, FIRST UNION NATIONAL BANK and THE BANK OF NOVA SCOTIA, as
Documentation Agents, BANK OF AMERICA, N.A., as Syndication Agent, and THE BANK
OF NEW YORK, as Administrative Agent. While not parties hereto, Banc of America
Securities, LLC and BNY Capital Markets, Inc. have acted as Co-Lead Arrangers
and Co-Bank Managers of the credit facilities described herein.
RECITALS
A. Pursuant to a Credit Agreement dated as of October 18, 1996 (as
amended by Amendments No. 1, 2, 3 and 4 thereto, the "Existing Credit
Agreement") among Hilton Hotels Corporation, the Banks party thereto, and The
Bank of New York, as Administrative Agent, the Banks have extended credit
facilities in the aggregate principal amount of $1,750,000,000.
B. The parties to the Existing Credit Agreement desire to amend and
restate the Existing Credit Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, the parties hereto covenant and agree
as follows:
ARTICLE I
DEFINITIONS
1.01 DEFINITIONS. The following terms, as used herein, have the
following meanings:
"ABSOLUTE RATE AUCTION" means a solicitation of Money Market Quotes setting
forth Money Market Absolute Rates pursuant to Section 2.03.
"ADDITIONAL BANK" has the meaning set forth in Section 2.19(b).
"ADJUSTED CD RATE" applicable to any Interest Period means a rate per annum
determined pursuant to the following formula:
[CDBR ]*
ACDR = [----------] + AR
[1.00 - DRP]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
-----------
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%
"ADMINISTRATIVE AGENT" means The Bank of New York in its capacity as
administrative agent for the Banks hereunder, and its successors in such
capacity.
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"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
"AGENT" means either the Administrative Agent or the Syndication Agent, and
"AGENTS" means both of them.
"ALTERNATIVE CURRENCIES" means Canadian dollars, French francs, Japanese
yen, British pounds sterling, Italian lira and German deutsche marks (and any
successor currencies thereto or replacement currencies therefor, including
without limitation the European Union's "euro" currency), PROVIDED that any
other currency (except Dollars) shall also be an Alternative Currency if (i) the
Borrower requests, by notice to the Administrative Agent, that such currency be
included as an additional Alternative Currency for purposes of this Agreement,
(ii) such currency is freely transferable and freely convertible into Dollars,
(iii) deposits in such currency are customarily offered to banks in the London
interbank market and (iv) each Bank either (x) approves the inclusion of such
currency as an additional Alternative Currency for purposes hereof or (y) fails
to notify the Administrative Agent that it objects to such inclusion within five
Domestic Business Days after the Administrative Agent notifies it of the
Borrower's request for such inclusion.
"ALTERNATIVE CURRENCY BORROWING" means a Borrowing consisting of
Alternative Currency Loans.
"ALTERNATIVE CURRENCY LOAN" means a Committed Loan that is made in an
Alternative Currency in accordance with the applicable Notice of Committed
Borrowing.
"APPLICABLE LENDING OFFICE" means, with respect to any Bank, (i) in the
case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its
Money Market Loans, its Money Market Lending Office.
"APPROVED BORROWING AMOUNT" means, with respect to Loans in any Alternative
Currency, a minimum borrowing amount and increment in excess thereof agreed from
time to time between the Administrative Agent and the Borrower with respect to
Loans to be made in such Alternative Currency.
"ARRANGERS" means, collectively, Banc of America Securities, LLC and BNY
Capital Markets, Inc., as Co-Lead Arrangers and Co-Book Managers for the credit
facilities described herein.
"ASSESSMENT RATE" means for any day the annual assessment rate in effect on
such day which is payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "A" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R.
'327.3(e) (or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United States. The
Adjusted CD Rate shall be adjusted automatically on and as of the effective date
of any change in the Assessment Rate.
"AUTHORIZED OFFICER" means any of the controller, the treasurer or the
chief financial officer of the Borrower.
"BANK" means each bank listed on the signature pages hereof and each lender
which accepts an assignment pursuant to Section 9.05, and their respective
successors and shall include, as the context may require, any Bank in its
capacity as Issuing Bank.
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"BASE RATE" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day, and (ii) the sum of 2 of l% plus the Federal Funds
Rate for such day.
"BASE RATE LOAN" means a Committed Loan made or to be made by a Bank as a
Base Rate Loan in accordance with the applicable Notice of Committed Borrowing
or Notice of Conversion/Continuation or pursuant to Article VIII.
"BASE RATE MARGIN" has the meaning set forth on the Pricing Schedule.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"BORROWER" means Hilton Hotels Corporation, a Delaware corporation, and its
successors.
"BORROWER'S 1999 FORM 10-K" means the Borrower's annual report on Form 10-K
for 1999, as filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended.
"BORROWER'S LATEST FORM 10-Q" means the Borrower's quarterly report on Form
10-Q for the quarter ended June 30, 2000, as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934.
"BORROWING" means the aggregation of Loans of one or more Banks to be made
to the Borrower pursuant to Article II on a single date and, in the case of
Eurodollar Rate Loans or CD Loans, for a single Interest Period.
"CD BASE RATE" means, as to any Interest Period, the rate of interest
determined by the Administrative Agent to be the average (rounded upward, if
necessary, to the next higher 1/100 of 1%) of the prevailing rates per annum bid
at 10:00 A.M. (New York City time) (or as soon thereafter as practicable) on the
first day of such Interest Period by two or more New York certificate of deposit
dealers of recognized standing for the purchase at face value from each CD
Reference Bank of its certificates of deposit in an amount comparable to the
principal amount of the CD Loan of such CD Reference Bank to which such Interest
Period applies and having a maturity comparable to such Interest Period.
"CD LOAN" means a Committed Loan made or to be made by a Bank as a CD Loan
in accordance with the applicable Notice of Committed Borrowing.
"CD MARGIN" means a rate per annum determined in accordance with the
Pricing Schedule.
"CD REFERENCE BANKS" means Bank of America, N.A., The Bank of New York and
▇▇▇▇▇ Fargo Bank, National Association
"CHANGE OF CONTROL" means the occurrence of a Ratings Decline in connection
with any of the following events: (i) upon any merger or consolidation of the
Borrower with or into any person or any sale, transfer or other conveyance,
whether direct or indirect, of all or substantially all of the assets of the
Borrower, on a consolidated basis, in one transaction or a series of related
transactions, if, immediately after giving effect to such transaction, any
person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) is or becomes the beneficial owner
(within the meaning of Rule 13d-3 promulgated by the Securities and
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Exchange Commission under said Act) of securities representing a majority of the
total voting power of the aggregate outstanding securities of the transferee or
surviving entity normally entitled to vote in the election of directors,
managers, or trustees, as applicable, of the transferee or surviving entity,
(ii) when any person or group of persons (within the meaning of Section 13 or 14
of the Securities Exchange Act of 1934, as amended) is or becomes the beneficial
owner (within the meaning of Rule 13d-3 promulgated by The Securities
and-Exchange Commission under said Act) of securities representing a majority of
total voting power of the aggregate outstanding securities of the Borrower
normally entitled to vote in the election of directors of the Borrower, (iii)
when, during any period of 12 consecutive calendar months, individuals who were
directors of the Borrower on the first day of such period (together with any new
directors whose election by the board of directors of the Borrower or whose
nomination for election by the stockholders of the Borrower was approved by a
vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the board of directors of the Borrower or (iv) the sale or
disposition, whether directly or indirectly, by the Borrower of all or
substantially all of its assets.
"COMMITMENT" means, as to each Bank, the commitment of that Bank to make
Loans as such amount may be reduced from time to time pursuant to Sections 2.11,
2.12, or 2.13 or increased from time to time pursuant to Section 2.19. The
aggregate amount of the Commitments under this Agreement as of the Effective
Date is $1,145,000,000. As of the Effective Date, each Bank shall hold a
Commitment in the amount set forth on the Commitment Schedule attached hereto.
"COMMITTED LOAN" means a loan made or to be made by a Bank pursuant to
Section 2.01.
"COMPLIANCE CERTIFICATE" means a certificate, substantially in the form of
Exhibit A, properly completed and signed by an Authorized Officer.
"CONSOLIDATED DEBT" means at any date the Debt of the Borrower and its
Subsidiaries, determined on a consolidated basis as of such date; PROVIDED that
Consolidated Debt shall exclude: (A) the PPE Assumed Notes, and (B) Debt of the
Borrower or a Subsidiary as to which a sum of cash and cash equivalents
sufficient to provide for payment in full of such Debt at its scheduled maturity
or at an earlier date at which it shall have been called for redemption shall
have been irrevocably deposited in trust for the benefit of the holders of such
Debt or a representative of such holders so as to result in legal or
in-substance defeasance thereof; PROVIDED further, that, notwithstanding clause
(A) in the foregoing proviso, if Park Place fails to pay when due any principal
of or interest on or any other amount with respect to the PPE Assumed Notes or
reimburse the Borrower for payment thereof, and such failure is continuing, on
and after the 90th day after such payment default first occurs any of the PPE
Assumed Notes then outstanding shall be included in Consolidated Debt, unless
such Debt then would be excluded therefrom pursuant to clause (B) in the
foregoing proviso.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income for
such period before (i) income taxes, (ii) interest expense, (iii) depreciation
and amortization, (iv) minority interest, (v) extraordinary losses or gains,
(vi) Pre-Opening Expenses, (vii) transactional expenses associated with the
Promus Acquisition, (viii) discontinued operations and (ix) nonrecurring
non-cash charges; PROVIDED that:
(a) Consolidated EBITDA for any period shall be adjusted on a pro
forma basis (i) to include (or exclude) amounts attributable to hotel
operations acquired (or sold or otherwise discontinued) during such
period as if such acquisition (or disposition) had occurred on the first
day of such period and (ii) to include amounts (annualized on a simple
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arithmetic basis) attributable to hotel projects which commenced
operations during such period and were in operation for at least one
full fiscal quarter during such period;
(b) for purposes of determining Consolidated EBITDA for any period,
Consolidated Net Income shall exclude any interest income attributable
to the assumption or payment by Park Place of the PPE Assumed Notes; and
(c) the operating results of each New Project which commences
operations and records not less than one full fiscal quarter's
operations during the relevant period shall be annualized on a simple
arithmetic basis.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, net interest expense
of the Borrower and its Subsidiaries for such period, determined in accordance
with generally accepted accounting principles.
"CONSOLIDATED NET INCOME" means, for any period, the consolidated net
income of the Borrower and its Subsidiaries for such period determined in
accordance with generally accepted accounting principles.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total assets of the Borrower
and its Subsidiaries, after deducting therefrom (a) all current liabilities of
the Borrower and its Subsidiaries (excluding (i) the current portion of long
term indebtedness, (ii) inter-company liabilities, and (iii) any liabilities
which are by their terms renewable or extendable at the option of the obligor
thereon to a time more than twelve months from the time as of which the amount
thereof is being computed), and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles, all
as set forth on the latest consolidated balance sheet of the Borrower prepared
in accordance with generally accepted accounting principles.
"COVERED SUBSIDIARY" means at any time any Subsidiary of the Borrower that
has consolidated assets in an amount greater than $5,000,000.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business and obligations in the nature of deferred employee compensation to the
extent that such deferred employee compensation obligations do not exceed
$150,000,000, in the aggregate, (iv) all obligations of such Person as lessee
under leases which are capitalized in accordance with generally accepted
accounting principles, (v) all other obligations secured by a Lien on any asset
of such Person, whether or not such obligations are otherwise an obligation of
such Person, in an amount equal to the lesser of the amount of the obligation so
secured or the fair value of the assets subject to such Lien, and (vi) all
obligations of others constituting "Debt" under the foregoing clauses of this
paragraph which are guaranteed by such Person; it being understood that "Debt"
does not include contingent obligations of such Person to reimburse any other
Person in respect of surety bonds or letters of credit.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DOCUMENTATION AGENTS" means First Union National Bank and The Bank of Nova
Scotia, in each case in their capacities as documentation agents for the Banks
hereunder. In their capacities as such, the Documentation Agents shall have no
rights, duties or obligations under this
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Agreement and the other Loan Documents, and shall incur no liabilities hereunder
and thereunder, which are in addition to the other Banks.
"DOLLAR AMOUNT" means:
(i) with respect to any Dollar-Denominated Loan at any time, the
principal amount thereof then outstanding; and
(ii) with respect to any Alternative Currency Loan at any time during
the Interest Period applicable thereto, the principal amount thereof then
outstanding in the relevant Alternative Currency, converted to Dollars at the
Administrative Agent's spot buying rate for Dollars against such Alternative
Currency as of approximately 11:00 A.M. (London time) three Euro-Currency
Business Days before the first day of such Interest Period.
If an Alternative Currency Loan is not paid when due, the Dollar Amount
thereof shall be recalculated as contemplated by clause (ii) above on the due
date thereof and at three-month intervals thereafter until such Loan is paid in
full.
"DOLLAR-DENOMINATED LOAN" means a Loan that is made or to be made in
Dollars in accordance with the applicable Notice of Committed Borrowing.
"DOLLARS" and the sign "$" mean lawful money of the United States of
America.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banks in -New York City or Los Angeles are authorized or
required by law to close.
"DOMESTIC LENDING OFFICE" means, as to each Bank, its office located at its
address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent; provided that any Bank may
so designate separate Domestic Lending Offices for its Base Rate Loans, on the
one hand, and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"DOMESTIC LOANS" means CD Loans or Base Rate Loans or both.
"DOMESTIC RESERVE PERCENTAGE" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000 or more.
The Adjusted CD Rate shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance, with Section 3.02.
"ELIGIBLE ASSIGNEE" means (a) another Bank, (b) with respect to any Bank,
any Affiliate of that Bank, (c) any commercial bank having a combined capital
and surplus of $500,000,000 or more, (d) any (i) savings bank, savings and loan
association or similar financial institution or (ii) insurance company which, in
either case (A) has a net worth of $500,000,000 or
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more, (B) is regularly engaged in the business of lending money and extending
credit under credit facilities substantially similar to those extended under
this Agreement and (C) is operationally and procedurally able to meet the
obligations of a Bank hereunder to the same degree as a commercial bank and (e)
any other financial institution (INCLUDING a mutual fund or other fund) having
total assets of $250,000,000 or more which meets the requirements set forth in
subclauses (B) and (C) of clause (d) above; PROVIDED that each Eligible Assignee
must either (a) be organized under the laws of the United States of America, any
State thereof or the District of Columbia or (b) be organized under the laws of
the Cayman Islands or any country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of such a
country, and (i) act hereunder through a branch, agency or funding office
located in the United States of America and (ii) is otherwise exempt from
withholding of tax on interest and delivers a Form W8-ECI or W8-BEN or other
appropriate tax withholding form pursuant to Section 2.18 at the time of any
assignment pursuant to Section 9.05.
"ENVIRONMENTAL LAWS" means any and all statutes, regulations, permits,
licenses or other governmental restrictions relating to the environment or to
releases of petroleum or petroleum products, chemicals or toxic or hazardous
substances or wastes into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Borrower, any Subsidiary of the Borrower and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Subsidiary of the Borrower, are treated as a single employer
under Section 414 of the Internal Revenue Code.
"EURO-CURRENCY BUSINESS DAY" means a Euro-Dollar Business Day, unless such
term is used in connection with an Alternative Currency Borrowing or Alternative
Currency Loan for which funds are to be paid or made available in such
Alternative Currency on such day, in which case such day shall not be a
Euro-Currency Business Day unless commercial banks are open for domestic and
international business (including dealings in deposits in such Alternative
Currency) in both London and the place where such funds are to be paid or made
available.
"EURO-CURRENCY LENDING OFFICE" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Currency Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Currency Lending Office by notice
to the Borrower and the Administrative Agent; Provided that any Bank may so
designate separate Euro-Currency Lending Offices for its Loans of each separate
currency, in which case all references herein to the Euro-Currency Lending
Office of such Bank shall be deemed to refer to any or each of such offices, as
the context may require.
"EURO-CURRENCY LOAN" means a Euro-Dollar Loan or an Alternative Currency
Loan.
"EURO-CURRENCY MARGIN" has the meaning set forth on the Pricing Schedule.
"EURO-CURRENCY REFERENCE BANKS" means the principal London offices of Bank
of America, N.A., The Bank of New York and ▇▇▇▇▇ Fargo Bank, National
Association
"EURO-CURRENCY RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion Dollars in
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respect of "Euro-Currency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Currency Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Bank to
United States residents).
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"EURO-DOLLAR LOAN" means a Committed Loan made or to be made by a Bank as a
Euro-Dollar Loan in accordance with the applicable Notice of Committed Borrowing
or Notice of Conversion/Continuation and bearing interest with reference to the
London Interbank Offered Rate.
"EURO-DOLLAR MARGIN" has the meaning set forth on the Pricing Schedule.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXISTING CREDIT AGREEMENT" has the meaning set forth in the Recitals
hereto.
"EXTENSION DATE" means, as of each date of determination, the date which
falls one year prior to the Termination Date and the same date in any preceding
year.
"FACILITY FEE RATE" has the meaning set forth on the Pricing Schedule.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of l%) 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 Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to the Administrative Agent on such day on
such transactions as determined by the Administrative Agent.
"FIXED RATE LOANS" means CD Loans or Euro-Currency Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
"GRANTING BANK" has the meaning set forth in Section 9.05(f).
"GUARANTEE" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the holder of such Debt of the payment
thereof or to protect such holder against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include (x) endorsements
for collection or deposit in the ordinary course of business or (y) performance
or completion guarantees. The term "Guarantee" used as a verb has a
corresponding meaning.
"INCREASED COMMITMENTS" has the meaning set forth in Section 2.19(a).
-8-
"INDEMNITEE" has the meaning set forth in Section 9.03(b).
"INTEREST COVERAGE RATIO" means, as of the last day of each fiscal quarter,
the ratio of (a) Consolidated EBITDA for the four fiscal quarters ending on that
date, to (b) Consolidated Interest Expense for the same period.
"INTEREST PERIOD" means: (1) with respect to each Euro-Dollar Borrowing,
the period commencing on the date of such Borrowing and ending one week or 1,
2, 3 or 6 months thereafter, and with respect to each Alternative Currency
Borrowing, the period commencing on the date of such Borrowing and ending 1
week or 1, 2 or 3 months thereafter, in each case, as the Borrower may elect
in the applicable Notice of Committed Borrowing or Notice of
Conversion/Continuation; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Currency Business Day shall be extended to the next succeeding
Euro-Currency Business Day unless such Euro-Currency Business Day falls in
another calendar month, in which case such Interest Period shall end on the
'next preceding Euro-Currency Business Day for the relevant currency;
(b) any Interest Period which begins on the last Euro-Currency
Business Day for the relevant currency in 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, subject to clause (c) below, end on the last
Euro-Currency Business Day for the relevant currency in a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date, or, if such date is not a
Euro-Currency Business Day for the relevant currency, then on the next preceding
Euro-Currency Business Day for the relevant currency.
(2) with respect to each CD Borrowing, the period commencing on the date of such
Borrowing and ending 30, 60, 90 or 180 days thereafter, as the Borrower may
elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date or, if such date is not a
Euro-Currency Business Day for the relevant currency, then on the next preceding
Euro-Currency Business Day for such currency.
(4) with respect to each Money Market LIBOR Borrowing, the period commencing on
the date of such Borrowing and ending 1, 2, 3 or 6 months thereafter, as the
Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such
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Euro-Dollar Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day in 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, subject to clause (c) below, end on the last Euro-Dollar Business Day of
a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(5) with respect to each Money Market Absolute Rate Borrowing, the period
commencing on the date of such Borrowing and ending such number of days
thereafter (but not less than 5 days) as the Borrower may elect in accordance
with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"INVESTMENT GRADE" means (i) with respect to S&P, a rating of BBB- or
higher and (ii) with respect to ▇▇▇▇▇'▇, a rating of Baa3 or higher.
"ISSUING BANK" means Bank of America, N.A., The Bank of New York and any
other Bank that may agree to issue letters of credit hereunder, in each case as
issuer of a Letter of Credit hereunder.
"LC FEE RATE" has the meaning set forth in Section 2.10(b).
"LETTER OF CREDIT" means a letter of credit to be issued hereunder by an
Issuing Bank in accordance with Section 2.21.
"LETTER OF CREDIT COMMITMENT" means the lesser of (x) $250,000,000 and (y)
the aggregate Commitments.
"LETTER OF CREDIT LIABILITIES" means, for any Bank and at any time, such
Bank's ratable participation in the sum of (x) the amounts then owing by the
Borrower in respect of amounts drawn under Letters of Credit and (y) the
aggregate amount then available for drawing under all Letters of Credit.
"LEVERAGE RATIO" means, as of each date of determination, the ratio of (a)
Consolidated Debt on such date to (b) Consolidated EBITDA for the four fiscal
quarters ending on that date.
"LIBOR AUCTION" means a solicitation of Money Market Quotes setting forth
Money Market Margins based on the London Interbank Offered Rate pursuant to
Section 2.03.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the
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Borrower or any Subsidiary of the Borrower shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"LOAN" means a Domestic Loan or a Euro-Currency Loan or a Money Market Loan
and "Loans" means Domestic Loans or Euro-Currency Loans or Money Market Loans or
any combination of the foregoing.
"LOAN DOCUMENTS" means this Agreement and the Notes.
"LONDON INTERBANK OFFERED RATE" as applicable to any Interest Period, means
the average rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in the relevant currency are
offered to each of the Euro-Currency Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Currency Business Days
before the first day of such Interest Period in an amount approximately equal to
the principal amount of the Euro-Currency Loan of such Euro-Currency Reference
Bank to which such Interest Period is to apply and for a period of time
comparable to such Interest Period.
"MATERIAL ADVERSE EFFECT" means, as of each date of determination, a
material adverse effect on or change in the condition (financial or otherwise),
business, assets or results of operations or prospects of the Borrower and its
Subsidiaries, taken as a whole, EXCEPT any such effect or change resulting from
(i) changes in circumstances or conditions affecting the hotel, motel or travel
industries in general or affecting any segment or region thereof in which they
operate, or (ii) changes in general economic or business conditions in the
United States.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate Unfunded
Liabilities in excess of $25,000,000.
"MONEY MARKET ABSOLUTE RATE" has the meaning set forth in Section 2.03(d).
"MONEY MARKET ABSOLUTE RATE LOAN" means a loan to be made by a Bank
pursuant to an Absolute Rate Auction.
"MONEY MARKET LENDING OFFICE" means, as to each Bank, its Domestic Lending
Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Agent; provided that any Bank may from time to time by notice to the
Borrower and the Administrative Agent designate separate Money Market Lending
Offices for its Money Market LIBOR Loans, on the one hand, and its Money Market
Absolute Rate Loans, on the other hand, in which case all references herein to
the Money Market Lending Office of such Bank shall be deemed to refer to either
or both of such offices, as the context may require.
"MONEY MARKET LIBOR LOAN" means a loan to be made by a Bank pursuant to a
LIBOR Auction (including such a loan bearing interest at the Base Rate pursuant
to Section 8.01(a)).
"MONEY MARKET LOAN" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"MONEY MARKET MARGIN" has the meaning set forth in Section 2.03(d).
"MONEY MARKET QUOTE" means an offer by a Bank to make a Money Market Loan
in accordance with Section 2.03.
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"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NEW PROJECT" means each new hotel or resort project (as opposed to any
project which consists of an extension or redevelopment of an operating hotel or
resort) having a development and construction budget in excess of $50,000,000
which hereafter receives a certificate of completion or occupancy and all
relevant operational licenses, and in fact commences operations.
"NON-RECOURSE DEBT" means Debt in respect of which the recourse of the
holder of such Debt is limited to the assets securing such Debt and such Debt
does not constitute the general obligation of the Borrower or any Subsidiary of
the Borrower.
"NOTES" means promissory notes of the Borrower, substantially in the form
of Exhibit B hereto, evidencing the obligation of the Borrower to repay the
Loans, and "NOTE" means any one of such promissory notes issued hereunder.
"NOTICE OF BORROWING" means a Notice of Committed Borrowing (as defined in
Section 2.02) or a Notice of Money Market Borrowing (as defined in Section
2.03(f)).
"NOTICE OF COMMITTED BORROWING" has the meaning set forth in Section 2.02.
"NOTICE OF CONVERSION/CONTINUATION" has the meaning set forth in Section
2.04.
"NOTICE OF ISSUANCE" has the meaning set forth in Section 2.21(b) .
"NOTICE OF MONEY MARKET BORROWING" has the meaning set forth in Section
2.03(f).
"PARENT" means, with respect to any Bank, any Person controlling such Bank.
"PARK PLACE" means Park Place Entertainment Corporation, a Delaware
corporation.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PPE ASSUMED NOTES" means the 7.35% senior notes of the Borrower due 2002
in the aggregate principal amount of $300,000,000 and the 7.00% senior notes of
the Borrower due 2004 in
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the aggregate principal amount of $325,000,000 issued pursuant to the Indenture,
dated as of April 15, 1997 executed by the Borrower in favor of BNY Western
Trust Company, as Trustee.
"PRE-OPENING EXPENSES" means, with respect to any fiscal period, the amount
of expenses (other than Consolidated Interest Expense) incurred with respect to
capital projects which are classified as "pre-opening expenses" on the
applicable financial statements of Borrower and its Subsidiaries for such
period, prepared in accordance with generally accepted accounting principles.
"PRICING CERTIFICATE" means a Pricing Certificate, substantially in the
form of Exhibit C hereto, properly completed and signed by an Authorized
Officer.
"PRICING SCHEDULE" means the Schedule attached hereto identified as such.
"PRIME RATE" means a rate of interest per annum equal to the rate of
interest publicly announced from time to time in New York City by The Bank of
New York as its prime commercial lending rate, such rate to be adjusted
automatically (without notice) on the effective date of any change in such
publicly announced rate.
"PROMUS" means Promus Hotel Corporation, Inc., a Delaware corporation.
"PROMUS ACQUISITION" means the merger of Promus Hotels Corporation with a
Subsidiary of the Borrower on or about November 30, 1999.
"RATING AGENCIES" means S&P and Moody's.
"RATINGS DECLINE" means the occurrence on any date on or within 90 days
after the date of the first public notice of (i) the occurrence of an event
described in clauses (i)-(iv) of the definition of "Change of Control" or (ii)
the intention by the Borrower to effect such an event (which 90-day period shall
be extended so long as the rating of the senior debt of the Borrower is under
publicly announced consideration for possible downgrade by either of the Rating
Agencies) of a decrease in the rating of the senior debt of the Borrower by both
of the Rating Agencies to below Investment Grade.
"REFERENCE BANKS" means the CD Reference Banks or the Euro-Currency
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"REGULATION U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REQUIRED BANKS" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding more than 50% of the sum of the aggregate unpaid principal
amount of the Loans and the aggregate amount of Letter of Credit Liabilities.
"REVOLVING CREDIT PERIOD" means the period from and including the Effective
Date to but not including the Termination Date.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc. and its successors.
"SIGNIFICANT SUBSIDIARY" means at any time a Subsidiary of the Borrower
having (i) at least 10% of the consolidated total assets of the Borrower and its
Subsidiaries (determined as of the last day of the most recent fiscal quarter of
the Borrower) or (ii) at least 10% of the consolidated
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revenues of the Borrower and its Subsidiaries for the fiscal year of the
Borrower then most recently ended.
"SPC" has the meaning set forth in Section 9.05(f).
"SUBSIDIARY" means, at any date, any Person the accounts of which would be
consolidated with those of the Borrower in its consolidated financial statements
as of such date in accordance with generally accepted accounting principles.
"SYNDICATION AGENT" means Bank of America, N.A. in its capacity as
syndication agent for the Banks hereunder.
"TERMINATION DATE" means October 18, 2003 or such later date to which the
Revolving Credit Period shall have been extended pursuant to Section 2.23, or,
if such day is not a Euro-Dollar Business Day, the next preceding Euro-Dollar
Business Day.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
1.02 ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared, in accordance with generally
accepted accounting principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the Borrower's independent
public accountants and disclosed in such financial statements) with the most
recent audited consolidated financial statements of the Borrower and its
Subsidiaries delivered to the Banks; Provided that, if the Borrower notifies
the Syndication Agent that the Borrower wishes to amend any covenant in
Article V to eliminate the effect of any change in generally accepted
accounting principles on the operation of such covenant (or if the Syndication
Agent notifies the Borrower that the Required Banks wish to amend Article V for
such purpose), then the Borrower's compliance with such covenant shall be
determined on the basis of generally accepted accounting principles in effect
immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Borrower and the Required
Banks.
1.03 TYPES OF BORROWINGS. Borrowings are classified for purposes of
this Agreement either by reference to the pricing of Loans comprising such
Borrowing (E.G., a "EURO-DOLLAR BORROWING" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article II under which
participation therein is determined (I.E., a "COMMITTED BORROWING" is a
Borrowing under Section 2.01 in which all Banks participate in proportion to
their commitments, while a "MONEY MARKET BORROWING" is a Borrowing under
Section 2.03 in which the Bank participants are determined in accordance
therewith).
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ARTICLE II
THE CREDITS
2.01 COMMITMENTS TO LEND. During the Revolving Credit Period each
Bank severally agrees, on the terms and conditions set forth in this Agreement,
to lend to the Borrower pursuant to this Section from time to time amounts such
that the aggregate Dollar Amount of Committed Loans by such Bank at any one time
outstanding shall not exceed the amount of its Commitment. Each Borrowing under
this Section shall be in an aggregate principal amount of $10,000,000 or any
larger multiple of $1,000,000, or in the case of a Borrowing to be denominated
in an Alternative Currency, an Approved Borrowing Amount with respect to such
Alternative Currency (except that any such Borrowing may be in the aggregate
amount available in accordance with Section 3.01(b)) and shall be made from the
several Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrower may borrow under this Section, repay, or to the
extent permitted by Section 2.14, prepay Loans and reborrow at any time on or
prior to the Termination Date under this Section. The Loans shall mature, and
the principal amount thereof shall be due and payable, on the Termination Date.
2.02 NOTICE OF COMMITTED BORROWINGS. The Borrower shall give the
Administrative Agent notice (a "Notice of Committed Borrowing"), substantially
in the form of Exhibit J hereto, not later than 11:30 A.M. (New York City time)
on (w) the date of each Base Rate Borrowing (or, if the Borrower shall have
requested Money Market Quotes in an Absolute Rate Auction to be submitted on
such date but shall not have accepted such Money Market Quotes in the full
amount requested, then the Borrower may give a Notice of Committed Borrowing not
later than 1:00 P.M. (New York City time) on such date for the smallest amount
permitted under Section 2.01 which is sufficient to fund the shortfall), (x) the
second Domestic Business Day before each CD Borrowing, (y) the third Euro-Dollar
Business Day before each Euro-Dollar Borrowing and (z) the fourth Euro-Currency
Business Day before each Alternative Currency Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Currency
Business Day for the relevant currency in the case of a Euro-Currency
Borrowing;
(b) the currency and aggregate amount (in such currency) of
such Borrowing;
(c) if such Borrowing is comprised of Dollar Denominated
Loans, whether the Loans comprising such Borrowing are to be CD Loans,
Base Rate Loans or Euro-Dollar Loans; and
(d) in the case of a Committed Fixed Rate Borrowing, the
duration of the Interest Period applicable thereto, subject to the
provisions of the definition of Interest Period.
2.03 MONEY MARKET BORROWINGS.
(a) THE MONEY MARKET OPTION. In addition to Committed
Borrowings pursuant to Section 2.01, the Borrower may, as set forth in
this Section, request the Banks prior to the Termination Date to make
offers to make Money Market Loans to the Borrower in Dollars. The Banks
may, but shall have no obligation to, make such offers and the Borrower
may, but shall have no obligation to, accept any such offers in the
manner set forth in this Section.
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(b) MONEY MARKET QUOTE REQUEST. When the Borrower wishes to
request offers to make Money Market Loans under this Section, it shall
transmit to the Administrative Agent by telex or facsimile transmission
a Money Market Quote Request substantially in the form of Exhibit D
hereto so as to be received no later than (x) 11:30 A.M. (New York City
time) on the fifth Euro-Dollar Business Day prior to the date of
Borrowing proposed therein, in the case of a LIBOR Auction or (y) 10:30
A.M. (New York City time) on the Domestic Business Day next preceding
the date of Borrowing proposed therein, in the case of an Absolute Rate
Auction (or, in either case, such other time or date as the Borrower and
the Administrative Agent shall have mutually agreed and shall have
notified to the Banks not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Dollar Business Day in the case of a LIBOR Auction or a
Domestic Business Day in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which
shall be $10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period, and
(iv) whether the Money Market Quotes requested are to
set forth a Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Administrative Agent may agree) of any
other Money Market Quote Request.
(c) INVITATION FOR MONEY MARKET QUOTES. Promptly upon
receipt of a Money Market Quote Request, the Administrative Agent shall
send to the Banks by telex or facsimile transmission an Invitation for
Money Market Quotes substantially in the form of Exhibit E hereto, which
shall constitute an invitation by the Borrower to each Bank to submit
Money Market Quotes offering to make the Money Market Loans to which
such Money Market Quote Request relates in accordance with this Section.
(d) SUBMISSION AND CONTENTS OF MONEY MARKET QUOTES. (i) Each
Bank may submit a Money Market Quote containing an offer or offers to
make Money Market Loans in response to any Invitation for Money Market
Quotes. Each Money Market Quote must comply with the requirements of
this subsection (d) and must be submitted to the Administrative Agent by
telex or facsimile transmission at its offices specified in or pursuant
to Section 9.01 not later than (x) 2:00 P.M. (New York City time) on the
fourth Euro-Dollar Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction or (y) 12:00 Noon (New York City time) on
the proposed date of Borrowing, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as the Borrower and the
Administrative Agent shall have mutually agreed and shall have notified
to the Banks not later than the date of the Money Market Quote Request
for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective); provided that Money Market Quotes submitted
by the Administrative Agent (or any affiliate of the Administrative
Agent) in the capacity of a Bank may be submitted, and may only be
submitted, if the Administrative Agent or such affiliate notifies the
Borrower of the terms of the offer or offers contained therein not later
than (x) one hour prior to the deadline for other Banks, in the case of
a LIBOR Auction
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or (y) 15 minutes prior to the deadline for other Banks, in the case of
an Absolute Rate Auction. Subject to Articles III and VI, any Money
Market Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the
Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit F hereto and shall in any case
specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market
Loan for which each such offer is being made, which
principal amount (w) may be greater than or less than
the Commitment of the quoting Bank, (x) must be
$5,000,000 or a larger multiple of $1,000,000, (y) may
not exceed the principal amount of Money Market Loans
for which offers were requested and (z) may be subject
to an aggregate limitation as to the principal amount of
Money Market Loans for which offers being made by such
quoting Bank may be accepted,
(C) in the case of a LIBOR Auction, the
margin above or below the applicable London Interbank
Offered Rate (the "Money Market Margin") offered for
each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added
to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction,
the rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "Money Market Absolute Rate")
offered for each, such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded
if it:
(F) is not substantially in conformity with
Exhibit F hereto or does not specify all of the
information required by subsection (d)(ii);
(G) contains qualifying, conditional or
similar language, except as provided in subsection
(d)(ii)(B) (z);
(H) proposes terms other than or in addition
to those set forth in the applicable Invitation for
Money Market Quotes, except as provided in subsection
(d)(ii)(B)(z); or
(I) arrives after the time set forth in
subsection (d) (i) .
(e) NOTICE TO BORROWER. The Administrative Agent shall
promptly notify the Borrower of the terms (x) of any Money Market Quote
submitted by a Bank that is in accordance with subsection (d) and (y) of
any Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by such Bank
with respect to the same Money Market Quote Request. Any such subsequent
Money Market
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Quote shall be disregarded by the Administrative Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest
error in such former Money Market Quote. The Administrative Agent's
notice to the Borrower shall specify (A) the aggregate principal amount
of Money Market Loans for which offers have been received for each
Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money
Market Absolute Rates, as the case may be, so offered and (C) if
applicable, limitations on the aggregate principal amount of Money
Market Loans for which offers in any single Money Market Quote may be
accepted.
(f) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (x)
11:30 A.M. (New York City time) on the third Euro-Dollar Business Day
prior to the proposed date of Borrowing, in the case of a LIBOR Auction
or (y) 12:45 P.M. (New York City time) on the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent
shall have mutually agreed and shall have notified to the Banks not
later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Administrative Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
subsection (e). In the case of acceptance, such notice (a "Notice of
Money Market Borrowing") shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may
accept any Money Market Quote in whole or in part; PROVIDED that:
(i) the aggregate principal amount of each money
Market Borrowing may not exceed the applicable amount set forth
in the related Money Market Quote Request,
(ii) the principal amount of each Money Market
Borrowing must be $10,000,000 or a larger multiple of
$1,000,000,
(iii)acceptance of offers may only be made on the basis
of ascending Money Market Margins or Money Market Absolute
Rates, as the case may be, and
(iv) the Borrower may not accept any offer that is
described in subsection (d)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(g) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made
by two or more Banks with the same Money Market Margins or Money Market
Absolute Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which such offers are permitted to
be accepted for the related Interest Period, the principal amount of
Money Market Loans in respect of which such offers are accepted shall be
allocated by the Administrative Agent among such Banks as nearly as
possible (in multiples of $1,000,000, as the Administrative Agent may
deem ' appropriate) in proportion to the aggregate principal amounts of
such offers. Determinations by the Administrative Agent of the amounts
of Money Market Loans shall be conclusive in the absence of manifest
error.
(h) EFFECT ON COMMITMENTS. Any Money Market Loans made by a
Bank pursuant to this Section shall not reduce such Bank's pro rata
share of the remaining undrawn Commitments.
2.04 CONVERSION AND CONTINUATION OF LOANS. So long as no Default or
Event of Default has occurred and is continuing, Borrower shall have the option
at any time (i) to convert all or
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any part of its outstanding Base Rate Loans which are integral multiples of
$1,000,000 and which are not less than $10,000,000 into Euro-Dollar Loans or CD
Rate Loans or (ii) upon the expiration of any Interest Period applicable to
Euro-Dollar Loans or CD Rate Loans, to continue all or any portion of such Loans
equal to $1,000,000 and integral multiples of $100,000 in excess of that amount
as Euro-Dollar Loans or CD Rate Loans or to convert such Loans into Base Rate
Loans.
Borrower shall deliver to the Administrative Agent notice of any such
conversion or continuation, substantially in the form of Exhibit J (each a
"Notice of Conversion/Continuation"), no later than 11:30 A.M. (New York local
time) at least one Domestic Business Day in advance of the proposed conversion
date (in the case of a conversion to a Base Rate Loan) and at least three
Euro-Dollar Business Days in advance of the proposed conversion/continuation
date (in the case of a conversion to, or a continuation of, a Euro-Dollar Loan
or CD Rate Loan). A Notice of Conversion/Continuation shall specify (i) the
proposed conversion/continuation date (which shall be a Domestic Business Day in
the case of Base Rate Loans and a Euro-Dollar Business Day in the case of
conversion to or continuation of Euro-Dollar Loans or CD Rate Loans), (ii) the
amount and type of the Loan to be converted/continued, (iii) the nature of the
proposed conversion/continuation, (iv) in the case of a conversion to, or a
continuation of, a Euro-Dollar Loan or CD Rate Loan, the requested Interest
Period, and (v) in the case of a conversion to, or a continuation of, a
Euro-Dollar Loan or CD Rate Loan, that no Default or Event of Default has
occurred and is continuing.
2.05 NOTICE TO BANKS; FUNDING OF LOANS.
(a) Upon receipt of a Notice of Borrowing or a Notice of
Conversion/Continuation, the Administrative Agent shall promptly notify
each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing or Notice of
Conversion/Continuation shall not thereafter be revocable by the
Borrower.
(b) Not later than 2:00 P.M. (New York City time) on the
date of each Borrowing, if such Borrowing is to be made in Dollars, each
Bank participating therein shall (except as provided in subsection (c)
of this Section) make available its share of such Borrowing in Dollars,
in federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 9.01;
PROVIDED that if such Borrowing is to be made in an Alternative
Currency, each Bank participating therein shall (except as provided in
subsection (c) of this Section) make available its share of such
Borrowing in such Alternative Currency (in such funds as may then be
customary for the settlement of international transactions in such
Alternative Currency) to the account of the Administrative Agent at such
time and place as shall have been notified by the Administrative Agent
to the Banks by not less than four Euro-Currency Business Days' notice.
Unless the Administrative Agent determines that any applicable condition
specified in Article III has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the
Borrower at the Administrative Agent's aforesaid address or place.
(c) Unless the Administrative Agent shall have received
notice from a Bank prior to the date of any Borrowing that such Bank
will not make available to the Administrative Agent such Bank's share of
such Borrowing, the Administrative Agent may assume that such Bank has
made such share available to the Administrative Agent on the date of
such Borrowing in accordance with subsection (b) of this Section 2.05
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to
the extent that such Bank shall not have so made such share available to
the Administrative Agent, such Bank and the Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding
amount
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together with interest thereon, for each day from the date (and
including the date) such amount is made available to the Borrower to
(but excluding) the date such amount is repaid to the Administrative
Agent, at (i) in the case of the Borrower, a rate per annum equal to the
higher of the Federal Funds Rate and the interest rate applicable
thereto pursuant to Section 2.07 and (ii) in the case of such Bank, the
Federal Funds Rate PROVIDED that, with respect to any Borrowing to be
denominated in an Alternative Currency, the rate shall be a comparable
overnight rate for such Alternative Currency as determined by the
Administrative Agent. If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute
such Bank's Loan included in such Borrowing for purposes of this
Agreement. If the Borrower pays interest under this subsection (c) at
the Federal Funds Rate and the Federal Funds Rate is higher than the
interest rate applicable thereto pursuant to Section 2.07, the
applicable Bank shall pay the Borrower the difference between such
rates.
2.06 NOTES.
(a) The Loans of each Bank shall be evidenced by a single
Note payable to the order of such Bank for the account of its Applicable
Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Commitment.
(b) Each Bank may, by notice to the Borrower and the
Syndication Agent, request that its Loans of a particular type be
evidenced by a separate Note in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in substantially
the form of Exhibit B hereto with appropriate modifications to reflect
the fact that it evidences solely Loans of the relevant type. Each
reference in this Agreement to the "Note" of such Bank shall be deemed
to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Note pursuant to
Section 3.02(b), the Syndication Agent shall forward such Note to such
Bank. Each Bank shall record the date, currency, amount (in such
currency), type and maturity of each Loan made by it and the date and
amount of each payment of principal made by the Borrower with respect
thereto, and may, if such Bank so elects in connection with any transfer
or enforcement of its Note, endorse on the schedule forming a part
thereof appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding; provided that the failure of
any Bank to make any such recordation or endorsement shall not affect
the obligations of the Borrower hereunder or under the Notes. Each Bank
is hereby irrevocably authorized by the Borrower so to endorse its Note
and to attach to and make a part of its Note a continuation of any such
schedule as and when required
2.07 INTEREST RATES.
(a) Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from (and including)
the date such Loan is made to (but excluding) the date it becomes due,
at a rate per annum equal to the Base Rate for such day PLUS any
applicable Base Rate Margin. Such interest shall be payable for each
Interest Period on the last day thereof. Any overdue principal of or
interest on any Base Rate Loan shall, at the option of the Required
Banks, bear interest, payable on demand, for each day until paid at a
rate per annum equal to the Base Rate PLUS the Base Rate Margin PLUS 2%.
Such interest shall be payable on the last Domestic Business Day of each
calendar quarter in arrears and on the Termination Date.
(b) Each CD Loan shall bear interest on the outstanding
principal amount thereof, for each day during the Interest Period
applicable thereto, at a rate per annum equal to
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the sum of the CD Margin for such day plus the applicable Adjusted CD
Rate for such Interest Period; provided that if any CD Loan shall, as a
result of clause (2)(b) of the definition of Interest Period, have an
Interest Period of less than 30 days, such CD Loan shall bear interest
during such Interest Period at the rate applicable to Base Rate Loans
during such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer
than 90 days, at intervals of 90 days after the first day thereof. Any
overdue principal of or interest on any CD Loan shall, at the option of
the Required Banks, bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the higher of (i)
the sum of the CD Margin for such day plus the Adjusted CD Rate
applicable to such Loan and (ii) the rate applicable to Base Rate Loans
for such day.
(c) Each Euro-Currency Loan shall bear interest on the
outstanding principal amount thereof, for each day during the Interest
Period applicable thereto, at a rate per annum equal to the sum of the
Euro-Currency Margin for such day plus the applicable London Interbank
Offered Rate for such Interest Period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest
Period is longer than three months, at intervals of three months after
the first day thereof.
(d) Any overdue principal of or interest on any
Euro-Currency Loan shall, at the option of the Required Banks, bear
interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the Euro-Currency Margin for such day plus
the quotient obtained (rounded upwards, if necessary, to the next higher
1/100 of 1%) by dividing (i) the average (rounded upward, if necessary,
to the next higher 1/16 of 1%) of the respective rates per annum at
which one day (or, if such amount due remains unpaid more than three
Euro-Currency Business Days, then for such period of time not longer
than 6 months as the Administrative Agent may elect) deposits in the
relevant currency in an amount approximately equal to such overdue
payment due to each of the Euro-Currency Reference Banks are offered to
such Euro-Currency Reference Bank in the London interbank market for the
applicable period determined as provided above by (ii) 1.00 minus the
Euro-Currency Reserve Percentage (or, if the circumstances described in
clause (a) or (b) of Section 8.01 shall exist, at a rate per annum equal
to the sum of 2% plus the rate applicable to Base Rate Loans for such
day).
(e) Subject to Section 8.01(a), each Money Market LIBOR Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the sum
of the London Interbank offered Rate for such Interest Period
(determined in accordance with Section 2.07(c) as if the related Money
Market LIBOR Borrowing were a Euro-Dollar Borrowing) plus (or minus) the
Money Market Margin quoted by the Bank making such Loan in accordance
with Section 2.03. Each Money Market Absolute Rate Loan shall bear
interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the Money Market
Absolute Rate quoted by the Bank making such Loan in accordance with
Section 2.03. Such interest shall be payable for each Interest Period on
the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any
overdue principal of or interest on any Money Market Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the Base Rate for such day.
(f) The Administrative Agent shall determine in accordance
with the provisions of this Agreement each interest rate applicable to
the Loans hereunder. The Administrative Agent shall give prompt notice
to the Borrower and the participating Banks of
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each rate of interest so determined, and its determination thereof shall
be conclusive in the absence of manifest error.
(g) Each Reference Bank agrees to use its best efforts to
furnish quotations to the Administrative Agent as contemplated by this
Section. If any Reference Bank does not furnish a timely quotation, the
Administrative Agent shall determine the relevant interest rate on the
basis of the quotation or quotations furnished by the remaining
Reference Bank or Banks or, if none of such quotations is available on a
timely basis, the provisions of Section 8.01 shall apply.
2.08 AGENTS' FEES. On the date hereof and on the Effective Date, the
Borrower shall pay to the Agents and the Arrangers certain fees in the amounts
set forth in a letter agreement with the Agents and the Arrangers.
2.09 UPFRONT FEES. On the Effective Date, the Borrower shall pay to
the Administrative Agent for the account of each Bank non-refundable upfront
fees in the amounts set forth in letter agreements between each Bank and the
Arrangers, and in an aggregate amount not to exceed the amount set forth in a
letter agreement among the Borrower, the Agents and the Arrangers.
2.10 FACILITY FEES.
(a) The Borrower shall pay to the Administrative Agent for
the account of the Banks ratably a facility fee at the Facility Fee Rate
(determined daily in accordance with the Pricing Schedule). Such facility fee
shall accrue from and including the Effective Date to but excluding the
Termination Date (or earlier date of termination of the Commitments in their
entirety), on the daily aggregate amount of the Commitments (whether used or
unused).
(b) The Borrower shall pay to the Administrative Agent
(i) for the account of the Banks ratably a Letter of Credit fee (the "LC Fee
Rate") accruing daily on the aggregate amount then available for drawing under
all Letters of Credit at a rate per annum determined in accordance with the
Pricing Schedule and (ii) for the account of each Issuing Bank a Letter of
Credit fronting fee accruing daily on the aggregate amount then available for
drawing under all Letters of Credit issued by such Issuing Bank at a rate per
annum as determined from time to time by the Borrower and such Issuing Bank.
(c) PAYMENTS. Accrued fees under this Section shall be
payable quarterly in arrears on the first day of each March, June, September and
December and upon the date of termination of the Commitments in their entirety
and, when paid, are non-refundable.
2.11 OPTIONAL TERMINATION OF COMMITMENTS BY BORROWER. During the
Revolving Credit Period, the Borrower may, upon at least three Domestic Business
Days' notice to the Administrative Agent, (i) terminate the Commitments at any
time, if no Loans or Letter of Credit Liabilities are outstanding at such time
or (ii) ratably and permanently reduce from time to time by an aggregate amount
of $25,000,000 or any larger amount in multiples of $1,000,000, the aggregate
amount of the Commitments in excess of the aggregate Dollar Amount of the Loans
and the aggregate amount of Letter of Credit Liabilities.
2.12 OPTIONAL TERMINATION OF COMMITMENTS BY THE BANKS. Following the
occurrence of a Change of Control, the Required Banks may in their sole and
absolute discretion elect, during the sixty day period immediately subsequent to
the LATER OF (a) such occurrence and (b) the EARLIER of (i) receipt of the
Borrower's written notice to the Administrative Agent of such occurrence and
(ii) if no such notice has been received by the Administrative Agent, the date
upon which the
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Administrative Agent and the Banks have actual knowledge thereof, to terminate
all of the Commitments. In any such case the Commitments shall be terminated
effective on the date which is sixty days subsequent to the date of written
notice from the Administrative Agent to the Borrower thereof, and to the extent
that there is then any Debt evidenced by the Notes, the same shall be
immediately due and payable and the Borrower shall immediately provide cash
collateral for the outstanding Letter of Credit Liabilities in the manner
contemplated by Section 6.03.
2.13 SCHEDULED TERMINATION OF COMMITMENTS. The Commitments shall
terminate on the Termination Date and any Loans then outstanding (together with
accrued interest thereon) shall be due and payable on such date.
2.14 OPTIONAL PREPAYMENTS.
(a) Subject in the case of any CD Borrowing or Euro-Currency
Borrowing to Section 2.15, the Borrower may, upon at least one Domestic Business
Day's notice to the Administrative Agent, prepay any Base Rate Borrowing (or any
Money Market Borrowing bearing interest at the Base Rate pursuant to Section
8.01(a)) or CD Borrowing or upon at least three Euro-Dollar Business Days'
notice to the Administrative Agent, with respect to any Euro-Dollar Borrowing,
or at least four Euro-Currency Business Days' notice to the Administrative
Agent, with respect to any Alternative Currency Borrowing, prepay any
Euro-Currency Borrowing, in each case in whole at any time, or from time to time
in part in amounts aggregating $10,000,000 or any larger multiple of $1,000,000,
by paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Banks included in such
Borrowing.
(b) Except as provided in Section 2.11(a), the Borrower may
not prepay all or any portion of the principal amount of any Money Market Loan
prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share (if any) of such prepayment
and such notice shall not thereafter be revocable by the Borrower.
2.15 GENERAL PROVISIONS AS TO PAYMENTS.
(a) The Borrower shall make each payment of principal of,
and interest on, Dollar-Denominated Loans and Letters of Credit
Liabilities and of fees hereunder, in Dollars not later than 2:00 P.M.
(New York City time) on the date when due, in federal or other funds
immediately available in New York City, to the Administrative Agent at
its address referred to in Section 9.01, without offset or counterclaim.
The Administrative Agent will promptly distribute to each Bank its
ratable share of each such payment received by the Administrative Agent.
The Borrower shall make each payment of principal of, and interest on,
the Alternative Currency Loans in the relevant Alternative Currency in
such funds as may then be customary for the settlement of international
transactions in such Alternative Currency, for the account of the
Administrative Agent at such time and at such place as shall have been
notified by the Administrative Agent to the Borrower and the Banks by
not less than four Euro-Currency Business Days, notice. The
Administrative Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Administrative Agent for the
account of the Banks, in the currency and type of funds received by the
Administrative Agent. Whenever any payment of principal of, or interest
on, the Domestic Loans or Letters of Credit Liabilities or of fees shall
be due on a day which is not a Domestic
-23-
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of,
or interest on, the Euro-Currency Loans or Money Market LIBOR Loans
shall be due on a day which is not a Euro-Currency Business Day, the
date for payment thereof shall be extended to the next succeeding
Euro-Currency Business Day unless such Euro-Currency Business Day falls
in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Currency Business Day. Whenever any
payment of principal of, or interest on, the Money Market Absolute Rate
Loans shall be due on a day which is not a Euro-Currency Business Day,
the date for payment thereof shall be extended to the next succeeding
Euro-Currency Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be
payable for such extended time.
(b) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due
to the Banks hereunder that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount
then due such Bank. If and to the extent that the Borrower shall not
have so made such payment, each Bank shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Bank together
with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to
the Administrative Agent, at the Federal Funds Rate.
2.16 FUNDING LOSSES. If the Borrower makes any payment of principal
with respect to any Fixed Rate Loan (pursuant to Article VI or VIII or
otherwise) on any day other than the last day of the Interest Period applicable
thereto, or the last day of an applicable period fixed pursuant to Section
2.07(d), or if the Borrower fails to borrow any Fixed Rate Loans after notice
has been given to any Bank in accordance with section 2.05(a), the Borrower
shall reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or failure to borrow, provided that
such Bank shall have delivered to the Borrower a certificate as to the amount of
such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
2.17 COMPUTATION OF INTEREST AND FEES. Interest based on the Prime
Rate, amounts denominated in British pounds sterling and all fees hereunder
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year) and paid for the actual number of days elapsed (including the first day
but excluding the last day). All other interest shall be computed on the basis
of a year of 360 days and paid for the actual number of days elapsed (including
the first day but excluding the last day).
2.18 WITHHOLDING TAX EXEMPTION. At least five Domestic Business Days
prior to the first date on which interest or fees are payable hereunder for the
account of any Bank, each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to each
of the Borrower and the Administrative Agent two duly completed copies of United
States Internal Revenue Service Form W8-ECI or W8-BEN, certifying in either case
that such Bank is entitled to receive payments under the Loan Documents without
deduction or withholding of any United States federal income taxes.
-24-
Each Bank which so delivers a Form W8-ECI or W8-BEN further undertakes
to deliver to each of the Borrower and the Administrative Agent two additional
copies of such forms (or a successor form) on or before the date that such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the Borrower
or the Administrative Agent, in each case certifying that such Bank is entitled
to receive payments under the Loan Documents without deduction or withholding of
any United States federal income taxes, unless 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 Bank from duly completing
and delivering any such form with respect to it and such Bank advises the
Borrower and the Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
2.19 INCREASED COMMITMENTS; ADDITIONAL BANKS.
(a) Subsequent to the Effective Date, the Borrower may, upon
at least 30 days, notice to the Syndication Agent (which shall promptly
provide a copy of such notice to the Banks), propose to increase the
aggregate amount of the Commitments by an amount not to exceed
$437,500,000 (the amount of any such increase, the "Increased
Commitments"). Each Bank party to this Agreement at such time shall have
the right (but no obligation), for a period of 15 days following receipt
of such notice, to elect by notice to the Borrower and the Syndication
Agent to increase its Commitment by a principal amount which bears the
same ratio to the Increased Commitments as its then Commitment bears to
the aggregate Commitments then existing.
(b) If any Bank party to this Agreement shall not elect to
increase its Commitment pursuant to subsection (a) of this Section, the
Borrower may designate another bank or other banks (which may be, but
need not be, one or more of the existing Banks) which at the time agree
to (i) in the case of any such bank that is an existing Bank, increase
its Commitment and (ii) in the case of any other such bank (an
"Additional Bank"), become a party to this Agreement. The sum of the
increases in the Commitments of the existing Banks pursuant to this
subsection (b) plus the Commitments of the Additional Banks shall not in
the aggregate exceed the unsubscribed amount of the Increased
Commitments.
(c) An increase in the aggregate amount of the Commitments
pursuant to this Section 2.19 shall become effective upon the receipt by
the Syndication Agent of an agreement in form and substance satisfactory
to the Syndication Agent signed by the Borrower, by each Additional Bank
and by each other Bank whose Commitment is to be increased, setting
forth the new Commitments of such Banks and setting forth the agreement
of each Additional Bank to become a party to this Agreement and to be
bound by all the terms and provisions hereof, together with such
evidence of appropriate corporate authorization on the part of the
Borrower with respect to the Increased Commitments and such opinions of
counsel for the Borrower with respect to the Increased Commitments as
the Syndication Agent may reasonably request. The Syndication Agent
shall give the Administrative Agent notice of any increase in the
aggregate amount of the Commitments under this Section 2.19.
2.20 JUDGMENT CURRENCY. If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due from the Borrower hereunder or
under any Note in the currency expressed to be payable herein (the "specified
currency") into another currency, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Administrative
Agent could purchase the
-25-
specified currency with such other currency at the Administrative Agent's New
York office on the Euro-Currency Business Day preceding that on which final
judgment is given. The obligations of the Borrower in respect of any sum due to
any Bank or the Administrative Agent hereunder or under any Note shall,
notwithstanding any judgment in a currency other than the specified currency, be
discharged only to the extent that, on the Euro-Currency Business Day following
receipt by such Bank or the Administrative Agent (as the case may be) of any sum
adjudged to be so due in such other currency, such Bank or the Administrative
Agent (as the case may be) may in accordance with normal banking procedures
purchase the specified currency with such other currency. If the amount of the
specified currency so purchased is less than the sum originally due to such Bank
or the Administrative Agent, as the case may be, in the specified currency, the
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Bank or the Administrative Agent, as the case may be, against such loss, and if
the amount of the specified currency so purchased exceeds (a) the sum originally
due to any Bank or the Administrative Agent, as the case may be, in the
specified currency and (b) any amounts shared with other Banks as a result of
allocations of such excess as a disproportionate payment to such Bank under
Section 9.10, such Bank or the Administrative Agent, as the case may be, agrees
to remit such excess to the Borrower.
2.21 LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof, each Issuing
Bank agrees to issue Letters of Credit hereunder from time to time
before the tenth day before the Termination Date upon the request of the
Borrower; PROVIDED that, immediately after each Letter of Credit is
issued, (i) the aggregate amount of the Letter of Credit Liabilities
shall not exceed the Letter of Credit Commitment and (ii) the aggregate
amount of the Letter of Credit Liabilities plus the aggregate
outstanding amount of all Loans shall not exceed-the aggregate amount of
the Commitments. Upon the date of issuance by an Issuing Bank of a
Letter of Credit, the Issuing Bank shall be deemed, without further
action by any party hereto, to have sold to each Bank, and each Bank
shall be deemed, without further action by any party hereto, to have
purchased from the Issuing Bank, a participation in such Letter of
Credit and the related Letter of Credit Liabilities in the proportion
their respective Commitments bear to the aggregate Commitments.
(b) The Borrower shall give the Issuing Bank notice at least
five days prior to the requested issuance of a Letter of Credit
specifying the date such Letter of Credit is to be issued, and
describing the terms of such Letter of Credit and the nature of the
transactions to be supported thereby (such notice, including any such
notice given in connection with the extension of a Letter of Credit, a
"Notice of Issuance"). Upon receipt of a Notice of Issuance, the Issuing
Bank shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Bank of the contents
thereof and of the amount of such Bank's participation in such Letter of
Credit. The issuance by the Issuing Bank of each Letter of Credit shall,
in addition to the conditions precedent set forth in Article III, be
subject to the conditions precedent that such Letter of Credit shall be
in such form and contain such terms as shall be satisfactory to the
Issuing Bank and that the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letter of Credit
as the Issuing Bank shall have reasonably requested. The Borrower shall
also pay to the Issuing Bank for its own account issuance, drawing,
amendment and extension charges in the amounts and at the times as
agreed between the Borrower and the Issuing Bank. The extension or
renewal of any Letter of Credit shall be deemed to be an issuance of
such Letter of Credit, and if any Letter of Credit contains a provision
pursuant to which it is deemed to be extended unless notice of
termination is given by the Issuing Bank, the Issuing Bank shall timely
give such notice of termination unless it has theretofore timely
received a
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Notice of Issuance and the other conditions to issuance of a Letter of
Credit have also theretofore been met with respect to such extension. No
Letter of Credit shall have a term extending or be so extendible beyond
the fifth Domestic Business Day preceding the Termination Date.
(c) Upon receipt from the beneficiary of any Letter of
Credit of any notice of a drawing under such Letter of Credit, the
Issuing Bank shall notify the Administrative Agent and the
Administrative Agent shall promptly notify the Borrower and each other
Bank as to the amount to be paid as a result of such demand or drawing
and the payment date. The Borrower shall be irrevocably and
unconditionally obligated forthwith to reimburse the Issuing Bank for
any amounts paid by the Issuing Bank upon any drawing under any Letter
of Credit, without presentment, demand, protest or other formalities of
any kind. All such amounts paid by the Issuing Bank and remaining unpaid
by the Borrower shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day. In addition, each Bank will
pay to the Administrative Agent, for the account of the Issuing Bank,
immediately upon the Issuing Bank's demand at any time during the period
commencing after such drawing until reimbursement therefor in full by
the Borrower, an amount equal to such Bank's ratable share of such
drawing (in proportion to its participation therein), together with
interest on such amount for each day from the date of the Issuing Bank's
demand for such payment (or, if such demand is made after 12:00 Noon
(New York City time) on such date, from the next succeeding Domestic
Business Day) to the date of payment by such Bank of such amount at a
rate of interest per annum equal to the Federal Funds Rate. The Issuing
Bank will pay to each Bank ratably all amounts received from the
Borrower for application in payment of its reimbursement obligations in
respect of any Letter of Credit, but only to the extent such Bank has
made payment to the Issuing Bank in respect of such Letter of Credit
pursuant hereto.
(d) The obligations of the Borrower and each Bank under
subsection (c) above shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this
Agreement, under all circumstances whatsoever, including without
limitation the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any Letter of Credit or any document related hereto
or thereto;
(ii) any amendment, waiver of or any consent to
departure from all or any of the provisions of this Agreement,
any Letter of Credit or any document related hereto or thereto;
(iii) the use which may be made of the Letter of
Credit by, or any acts or omission of, a beneficiary of a
Letter of Credit (or any Person for whom the beneficiary
may be acting);
(iv) the existence of any claim, set-off, defense or
other rights that the Borrower may have at any time against a
beneficiary of a Letter of Credit (or any Person for whom the
beneficiary may be acting), the Banks (including the Issuing
Bank) or any other Person, whether in connection with this
Agreement or the Letter of Credit or any document related hereto
or thereto or any unrelated transaction;
(v) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent or
invalid in any I respect or any statement therein being untrue
or inaccurate in any respect whatsoever;
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(vi) payment under a Letter of Credit to the
beneficiary of such Letter of Credit against presentation to the
Issuing Bank of a draft or certificate that does not comply with
the terms of the Letter of Credit; or
(vii)any other act or omission to act or delay of any
kind by any Bank (including the Issuing Bank), the
Administrative Agent or any other Person or any other event or
circumstance whatsoever that might, but for the provisions of
this subsection (vii), constitute a legal or equitable discharge
of the Borrower's or the Bank's obligations hereunder.
(e) The Borrower hereby indemnifies and holds harmless each
Bank (including each Issuing Bank) and the Administrative Agent from and
against any and all claims, damages, losses, liabilities, costs or
expenses which such Bank or the Administrative Agent may incur
(including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which the Issuing Bank may incur by
reason of or in connection with the failure of any other Bank to fulfill
or comply with its obligations to such Issuing Bank hereunder (but
nothing herein contained shall affect any rights the Borrower may have
against such defaulting Bank)), and none of the Banks (including an
Issuing Bank) nor the Administrative Agent nor any of their officers or
directors or employees or agents shall be liable or responsible, by
reason of or in connection with the execution and delivery or transfer
of or payment or failure to pay under any Letter of Credit, including
without limitation any of the circumstances enumerated in subsection (d)
above, as well as (i) any error, omission, interruption or delay in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, (ii) any error in interpretation of technical terms,
(iii) any loss or delay in the transmission of any document required in
order to make a drawing under a Letter of Credit, (iv) any consequences
arising from causes beyond the control of the Issuing Bank, including
without limitation any government acts, or any other circumstances
whatsoever in making or failing to make payment under such Letter of
Credit; PROVIDED that the Borrower shall not be required to indemnify
the Issuing Bank for any claims, damages, losses, liabilities, costs or
expenses, and the Borrower shall have a claim for direct (but not
consequential) damage suffered by it, to the extent found by a court of
competent jurisdiction to have been caused by (x) the willful misconduct
or gross negligence of the Issuing Bank in determining whether a request
presented under any Letter of Credit complied with the terms of such
Letter of Credit or (y) the Issuing Bank's failure to pay under any
Letter of Credit after the presentation to it of a request strictly
complying with the terms and conditions of the Letter of Credit. Nothing
in this subsection (e) is intended to limit the obligations of the
Borrower under any other provision of this Agreement. To the extent the
Borrower does not indemnify an Issuing Bank as required by this
subsection, the Banks agree to do so ratably in accordance with their
Commitments.
2.22 REGULATION D COMPENSATION. Each Bank may require the Borrower to
pay, contemporaneously with each payment of interest on the Euro-Currency Loans,
additional interest on the related Euro-Currency Loan of such Bank at a rate per
annum determined by such Bank up to but not exceeding the excess of (i) (A) the
applicable London Interbank Offered Rate divided by (B) one minus the
Euro-Currency Reserve Percentage over (ii) the applicable London Interbank
Offered Rate. Any Bank wishing to require payment of such additional interest
(x) shall so notify the Borrower and the Agent, in which case such additional
interest on the Euro-Currency Loans of such Bank shall be payable to such Bank
at the place indicated in such notice with respect to each Interest Period
commencing at least three Euro-Currency Business Days after the giving of such
notice and (y) shall notify the Borrower at least five Euro-Currency Business
Days prior to each date on which interest is payable on the Euro-Currency Loans
of the amount then due it under this Section.
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2.23 EXTENSION OF THE TERMINATION DATE. The Termination Date may be
extended for a period of up to one year after the date on which the Termination
Date would otherwise have occurred in accordance with the provisions of this
Section. If the Borrower wishes to request an extension of the Termination Date,
it shall give written notice to that effect to the Syndication Agent not less
than 45 nor more than 90 days prior to any Extension Date, whereupon the
Syndication Agent shall notify each of the Banks of such notice. Each Bank will
respond to such request, whether affirmatively or negatively, within 30 days. If
a Bank or Banks respond negatively or fail to timely respond to such request,
but such non-extending Banks have Commitments totaling less than 33 1/3% of the
aggregate amount of the Commitments, the Borrower shall, for a period of 60 days
following that Extension Date, have the right, with the assistance of the
Syndication Agent, to seek a mutually satisfactory substitute financial
institution or financial institutions (which may be one or more of the Banks) to
assume the Commitments of such non-extending Banks. No Bank which fails to
consent shall be deemed to have consented to a request by the Borrower under
this Section. Not later than the third Domestic Business Day prior to the end of
such period (whether of 60 days or shorter), the Borrower shall, by notice to
the Banks through the Syndication Agent, either (i) terminate, effective on the
third Domestic Business Day after the giving of such notice, the Commitments of
such non-extending Banks, whereupon the Banks who have consented to the
extension shall continue with their commitments unaffected to lend subject to
the terms of this Agreement to the new Termination Date, or (ii) designate one
or more new financial institutions reasonably acceptable to the Syndication
Agent to assume the Commitments of such non-extending Banks, whereupon the
aggregate amount of such Commitments shall be assumed by such substitute
financial institution or financial institutions within such 60-day period or
(iii) withdraw its request for an extension of the Termination Date, in which
case the Commitments shall continue unaffected. The failure of the Borrower to
timely take the actions contemplated by clause (i) or (ii) of the preceding
sentence shall be deemed a withdrawal of its request for an extension as
contemplated by clause (ii) whether or not notice to such effect is given. So
long as Banks having Commitments totaling not less than 66 2/3% of the aggregate
amount of the Commitments shall have responded affirmatively to such a request,
and such request is not withdrawn in accordance with the preceding sentence,
then, subject to receipt by the Syndication Agent of counterparts of an
Extension Agreement in substantially the form of Exhibit I duly completed and
signed by all of the parties hereto (other than non-consenting Banks), the
Termination Date shall be extended for the period set forth in this Section 2.23
and in the Extension Agreement. The Syndication Agent shall give the
Administrative Agent notice of any extension of the Termination Date under this
Section.
-29-
ARTICLE III
CONDITIONS
3.01 BORROWINGS AND ISSUANCES OF LETTERS OF CREDIT. The obligation of
any Bank to make a Loan on the occasion of any Borrowing and the obligation of
an Issuing Bank to issue (or renew or extend the term of) any Letter of Credit
is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of
Borrowing as required by Section 2.02 or 2.03, or receipt by the Issuing
Bank of a Notice of Credit Issuance as required by Section 2.21(b), as
the case may be;
(b) immediately after such Borrowing or issuance of a Letter
of Credit, the sum of the aggregate outstanding Dollar Amount of the
Loans and the aggregate amount of Letter of Credit Liabilities will not
exceed the aggregate amount of the Commitments;
(c) immediately before and after such Borrowing or issuance
of a Letter of Credit, no Default shall have occurred and be continuing;
(d) the representations and warranties of the Borrower
contained in this Agreement (except the representation and warranty set
forth in Section 4.04(c) and Section 4.05, in each case as to any matter
which has theretofore been disclosed in writing by the Borrower to the
Banks) shall be true on and as of the date of such Borrowing or issuance
of a Letter of Credit;
(e) in the case of an Alternative Currency Borrowing, there
shall not have occurred any change in national or international
financial, political or economic conditions or currency exchange rates
or exchange controls which would in the opinion of the Agents make it
impracticable for such Borrowing to be denominated in the relevant
Alternative Currency; and
(f) in the case of an issuance of a Letter of Credit,
immediately after such issuance of a Letter of Credit, the aggregate
amount of the Letter of Credit Liabilities shall not exceed the Letter
of Credit Commitment.
Each Borrowing and issuance of a Letter of Credit hereunder shall be
deemed to be a representation and warranty by the Borrower on the date of such
Borrowing or issuance as to the continued accuracy of the matters described in
clauses (c), (d) and (e) of this Section as of the date of such Borrowing or
issuance.
3.02 EFFECTIVENESS. As conditions precedent to the Effective Date and
the making of the initial Loans hereunder, each of the following conditions
shall have been satisfied (or waived in accordance with Section 9.04):
(a) receipt by the Syndication Agent of counterparts hereof
signed by each of the parties hereto (or, in the case of any party as to
which an executed counterpart shall not have been received, receipt by
the Syndication Agent in form satisfactory to it of telegraphic, telex
or other written confirmation from such party of execution of a
counterpart hereof by such party);
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(b) receipt by the Syndication Agent for the account of each
Bank of a duly executed Note dated as of the Effective Date complying
with the provisions of Section 2.05;
(c) receipt by the Syndication Agent of an opinion of
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP substantially in the form of Exhibit G
hereto;
(d) receipt by the Syndication Agent of all documents it may
reasonably request relating to the existence of the Borrower, the
corporate authority for and the validity of this Agreement and the
Notes, and any other matters relevant hereto, all in form and substance
satisfactory to the Agents;
(e) receipt by the Administrative Agent for the account of
each Bank which was a party to the Existing Credit Agreement of an
extension fee equal to 20 basis points times the amount of its
Commitment under the Existing Credit Agreement which has been renewed as
a Commitment hereunder; and
(f) receipt by the Administrative Agent for the account of
each Bank which was a party to the Existing Credit Agreement and which
has increased its Commitment hereunder and for the account of each Bank
which newly becomes a Bank hereunder as of the Effective Date, of
upfront fees in the amounts set forth in a letter agreement with the
Agents.
(g) There shall not have occurred a Material Adverse Effect
since December 31, 1999.
The Syndication Agent shall promptly notify the Borrower, the Administrative
Agent and each Bank of the effectiveness of this Agreement, and such notice
shall be conclusive and binding on all parties hereto.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
4.01 CORPORATE EXISTENCE AND POWER. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of
Delaware, and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
4.02 CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION. The
execution, delivery and performance by the Borrower of the Loan Documents are
within the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower (in the case of any such default under the provisions of any agreement
or instrument binding upon the Borrower, except to the extent that the same
could not reasonably be expected, either individually or in the aggregate, to
have a Material Adverse Effect) or result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries.
4.03 BINDING EFFECT. This Agreement constitutes a valid and binding
agreement of the Borrower and the Notes, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Borrower, in each case enforceable in accordance with their respective
terms.
4.04 FINANCIAL INFORMATION.
(a) The consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 1999 and the related consolidated
statements of income and cash flows for the fiscal year then ended set
forth in the Borrower's 1999 Form 10-K, a copy of which has been
delivered to each of the Banks, fairly present in all material respects,
in conformity with generally accepted accounting principles, the
consolidated financial position of the Borrower and its Subsidiaries as
of such date and their consolidated results of operations and cash flows
for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower
and its Subsidiaries as of June 30, 2000 and the related unaudited
consolidated statements of income and cash flows for the six months then
ended, set forth in the Borrower's Latest Form 10-Q, a copy of which has
been delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles applied on a basis consistent
with the financial statements referred to in subsection (a) of this
Section, the consolidated financial position of the Borrower and its
Subsidiaries as of such date and their consolidated results of
operations and cash flows for such six month period (subject to normal
quarter-end adjustments).
(c) Since December 31, 1999, there has been no Material
Adverse Effect.
4.05 LITIGATION. Except as disclosed in the Borrower's Latest
Form 10-Q, there is no action, suit or proceeding pending against, or to the
knowledge of the Borrower threatened against or affecting, the Borrower or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official in which there is a reasonable possibility of an adverse
decision which could reasonably be expected to have a Material Adverse Effect or
which in any manner draws into question
-32-
the validity or enforceability of any of the Loan Documents. Without limiting
the generality of the foregoing, with respect to those litigation matters
described in the Borrower's Latest Form l0-Q, (i) the disclosure contained in
the Borrower's Latest Form 10-Q was accurate as of the date of the Borrower's
Latest Form l0-Q and (ii) since such date there has been no adverse development
which would reasonably be expected to have a Material Adverse Effect.
4.06 COMPLIANCE WITH ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA.
4.07 TAXES. The United States federal income tax returns of the
Borrower and its Subsidiaries have been filed through the fiscal year ended
December 31, 1999. The Borrower and its Significant Subsidiaries have filed all
United States federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary of the Borrower. The charges, accruals and reserves on the books of
the Borrower and its Significant Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate.
4.08 SIGNIFICANT SUBSIDIARIES. Each of the Significant Subsidiaries
is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
4.09 NOT AN INVESTMENT COMPANY. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
4.10 ENVIRONMENTAL MATTERS. The Borrower has reasonably concluded
that Environmental Laws are unlikely to have a material adverse effect on the
business, financial position, results of operations or prospects of the Borrower
and its Subsidiaries, considered as a whole.
4.11 FULL DISCLOSURE. All information heretofore furnished by the
Borrower to either Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to either Agent or any Bank, taken as a
whole, will be true and accurate in all material respects on the date as of
which such information is stated or certified. The Borrower has disclosed to the
Banks in writing any and all facts which materially and adversely affect or may
affect (to the extent the Borrower can now reasonably foresee), the business,
operations or financial position of the Borrower and its Subsidiaries, taken as
a whole, or the ability of the Borrower to perform its obligations under this
Agreement. With respect to any projections or forecasts provided, such
projections or forecasts represent, as of the date thereof, management's best
estimates based on reasonable assumptions and all available information, but are
subject to the uncertainty inherent in all projections and forecasts.
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ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable under any Note or any Letter of Credit Liability
remains unpaid:
5.01 INFORMATION. The Borrower will deliver to the Administrative
Agent:
(a) as soon as available and in any event within 90 days
after the end of each fiscal year of the Borrower, the consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such
fiscal year and the related consolidated statements of income and cash
flows for such fiscal year, setting forth in each case in comparative
form the figures as of the end of and for the previous fiscal year, all
reported on in a manner acceptable to the Securities and Exchange
Commission by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal year of
the Borrower,-the consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and the related consolidated
statements of income and cash flows for such quarter and for the portion
of the Borrower's fiscal year ended at the end of such quarter, setting
forth in the case of such statements of income and cash flows in
comparative form the figures for the corresponding quarter and the
corresponding portion of the Borrower's previous fiscal year, all
certified (subject to normal year-end adjustments) as to fairness of
presentation, generally accepted accounting principles and consistency
by an Authorized Officer;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b) above, a
Compliance Certificate (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in
compliance with the requirements of clauses (g) and (h) of Section 5.06,
Section 5.09 and Section 5.10 on the date of such financial statements
and (ii) stating whether any Default exists on the date of such
Compliance Certificate and, if any Default then exists, setting forth
the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of
financial statements referred to in clause (a) above, a statement of the
firm of independent public accountants which reported on such statements
(i) whether anything has come to their attention to cause them to
believe that any Default existed on the date of such statements and (ii)
confirming the calculations set forth in the officer's certificate
delivered simultaneously therewith;
(e) as soon as available and in any event not later than the
last day of February of each year, a completed Pricing Certificate as of
December 31 of the prior year;
(f) within five Domestic Business Days of any officer of the
Borrower obtaining knowledge of any Default, if such Default is then
continuing, a certificate of an Authorized Officer setting forth the
details thereof and the action which the Borrower is taking or proposes
to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders of
the Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
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(h) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) which the Borrower shall
have filed with the Securities and Exchange Commission;
(i) if and when any member of the ERISA Group (i) gives or
is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to
administer, any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any
Plan or Multiemployer Plan or in respect of any Benefit Arrangement or
makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a
bond or other security, a certificate of the chief financial officer or
the chief accounting officer of the Borrower setting forth details as to
such occurrence and action, if any, which the Borrower or applicable
member of the ERISA Group is required or proposes to take;
(j) forthwith, notice of any change of which the Borrower
becomes aware in the rating by S&P or ▇▇▇▇▇'▇, of the Borrower's
outstanding senior unsecured long-term debt securities; and
(k) from time to time such additional information regarding
the financial position or business of the Borrower as the Syndication
Agent, at the request of any Bank, may reasonably request.
5.02 MAINTENANCE OF PROPERTY; INSURANCE.
(a) The Borrower will keep, and will cause each Significant
Subsidiary to keep, all property useful and necessary in its business in
good working order and condition, ordinary wear and tear excepted,
except where failure to do so would not have a material adverse effect
on the business, financial position, results of operations or prospects
of the Borrower and its Subsidiaries, considered as a whole.
(b) The Borrower will, and will cause each of its
Significant Subsidiaries to, maintain (either in the name of the
Borrower or in such Subsidiary's own name) with financially sound and
responsible insurance companies, insurance on all their respective
properties in at least such amounts and against at least such risks (and
with such risk retention) as are usually insured against in the same
general area by companies of established repute engaged in the same or a
similar business and will furnish to the Banks, upon request from the
Syndication Agent, information presented in reasonable detail as to the
insurance so carried. Notwithstanding the foregoing, the Borrower may
self-insure with respect to such risks with
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respect to which companies of established repute engaged in the same or
similar business in the same general area usually self-insure.
5.03 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The Borrower
will continue, and will cause each Significant Subsidiary to continue, to engage
in business of the same general type as now conducted by the Borrower and its
Significant Subsidiaries, and will preserve, renew and keep in full force and
effect, and will cause each Subsidiary of the Borrower to preserve, renew and
keep in full force and effect their respective corporate existence and their
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that nothing in this Section 5.03 shall
prohibit (i) the merger of a Subsidiary of the Borrower into the Borrower or the
merger or the consolidation of a Subsidiary of the Borrower with or into another
Person if the corporation surviving such consolidation or merger is a Subsidiary
of the Borrower and if, in each case, after giving effect thereto, no Default
shall have occurred and be continuing or (ii) the termination of the corporate
existence of any Subsidiary of the Borrower if the Borrower in good faith
determines that such termination is in the best interest of the Borrower and is
not materially disadvantageous to the Banks.
5.04 COMPLIANCE WITH LAWS. The Borrower will comply, and cause each
Significant Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder) and shall timely file all material tax returns
and pay all material taxes required to be filed by them and so paid, except, in
each case, where the necessity of compliance therewith is contested in good
faith by appropriate proceedings.
5.05 INSPECTION OF PROPERTY, BOOKS AND RECORDS. The Borrower will
keep, and will cause each Significant Subsidiary to keep, proper books of record
and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Significant Subsidiary to permit, representatives of
any Bank at such Bank's expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all at
such reasonable times and as often as may reasonably be desired.
5.06 NEGATIVE PLEDGE. None of the Borrower, any Covered Subsidiary or
any Significant Subsidiary will create, assume or suffer to exist any Lien on
any asset now owned or hereafter acquired by it, except:
(a) Liens existing as of September 15, 2000;
(b) any Lien existing on any asset of any Person at the time
such Person becomes a Subsidiary of the Borrower or at the time such
Person is merged or consolidated with or into the Borrower or a
Subsidiary of the Borrower, in each case where the Lien is not created
in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed
for the purpose of financing all or any part of the cost of acquiring or
constructing such asset (it being understood that, for this purpose, the
acquisition of a Person is also an acquisition of the assets of such
Person); provided that the Lien attaches to such asset concurrently with
or within 180 days after the acquisition thereof, or such longer period,
not to exceed 12 months, due to the Borrower's inability to retain the
requisite governmental approvals with respect to such acquisition;
provided further that, in the case of real estate, (i) the Lien attaches
within 12 months after the latest of the acquisition thereof, the
completion of construction thereon or the
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commencement of full operation thereof and (ii) the Debt so secured does
not exceed the sum of (x) the purchase price of such real estate plus
(y) the costs of such construction;
(d) any Lien existing on any asset prior to the acquisition
thereof by the Borrower or a Subsidiary of the Borrower and not created
in contemplation of such acquisition;
(e) any Lien arising out of the refinancing, extension,
renewal or refunding of any Debt secured by any Lien permitted by any of
the foregoing clauses of this Section, provided that such Debt is not
increased (other than to cover any transaction costs of such
refinancing, extension, renewal or refunding) and is not secured by any
additional assets;
(f) Liens arising in the ordinary course of its business
which (i) do not secure Debt, (ii) do not secure any single obligation
in an amount exceeding $50,000,000 and (iii) do not in the aggregate
materially detract from the value of its assets or materially impair the
use thereof in the operation of its business;
(g) Liens securing Debt of a Subsidiary of the Borrower to
the Borrower or another Subsidiary of the Borrower; and
(h) Liens not otherwise permitted by the foregoing clauses
of this Section which secure indebtedness in an aggregate principal
amount which is not in excess of 10% of Consolidated Net Tangible Assets
(determined as of the most recent date for which Borrower has delivered
its financial statements under Section 5.01(a) or Section 5.01(b), as
applicable), and encumbering assets which have a value, as determined by
the board of directors of the Borrower in connection with the incurrence
of each such Lien, which the board of directors of Borrower determines
is reasonably related to the amount of the indebtedness secured thereby.
5.07 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Borrower will
not (i) consolidate or merge with or into any other Person or (ii) sell, lease
or otherwise transfer all or any substantial part of the assets of the Borrower
and its Subsidiaries, taken as a whole, to any other Person; PROVIDED that the
Borrower may merge with another Person if (A) the Borrower is the corporation
surviving such merger and (B) immediately after giving effect to such merger, no
Default shall have occurred and be continuing.
5.08 USE OF PROCEEDS. The proceeds of the Loans made under this
Agreement will be used by the Borrower and its Subsidiaries for general
corporate purposes, including but not limited to working capital, capital
expenditures, the back stop of commercial paper and the acquisition of
full-service hotel and resort properties. None of such proceeds will be used,
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any "margin stock" within the meaning of
Regulation U in any manner that would violate Regulation X or result in a
violation of Regulation U.
5.09 LEVERAGE RATIO. The Leverage Ratio will not, as of the last day
of any fiscal quarter of Borrower described in the matrix below, exceed the
ratio set forth opposite that fiscal quarter:
FISCAL QUARTERS ENDING MAXIMUM RATIO
---------------------- -------------
December 31, 2000 5.00:1.00
March 31, 2001 through and including
March 31, 2002 4.75:1.00
Thereafter 4.50:1.00.
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5.10 INTEREST COVERAGE RATIO. The Interest Coverage Ratio shall not,
as of the last day of any fiscal quarter of Borrower, be less than 2.50:1.00.
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ARTICLE VI
DEFAULTS
6.01 EVENTS OF DEFAULT. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to reimburse any drawing under
any Letter of Credit when required hereunder or to pay when due any
principal of any Loan under this Agreement, or shall fail to pay within
five days of the due date thereof any interest, fees or other amount
payable hereunder;
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.06 to 5.10, inclusive;
(c) the Borrower shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
covered by clause (a) or (b) above) for 7 days after written notice
thereof has been given to the Borrower by the Syndication Agent at the
request of any Bank;
(d) any representation, warranty, certification or statement
made or deemed made by the Borrower in this Agreement or in any
certificate, financial statement or other document delivered pursuant to
this Agreement shall prove to have been incorrect in any material
respect when made (or deemed made);
(e) the Borrower or any Covered Subsidiary or any
Significant Subsidiary shall fail to make any payment in respect of any
Debt (other than the Notes and Non-Recourse Debt) when due or within any
applicable grace period and the aggregate principal amount of such Debt
is in excess of $100,000,000;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Debt (other than Non-Recourse Debt)
in excess of $100,000,000 of the Borrower or any Covered Subsidiary or
any Significant Subsidiary or enables the holder of such Debt or any
Person acting on such holder's behalf to accelerate the maturity
thereof;
(g) the Borrower or any Significant Subsidiary shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or
other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to
authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Significant Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an
order for relief shall be entered against the Borrower or any
Significant Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
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(i) any member of the ERISA Group shall fail to pay when due
an amount or amounts aggregating in excess of $5,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of intent
to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination
of the foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate, to impose liability (other than for premiums
under Section 4007 of ERISA) in respect of, or to cause a trustee to be
appointed to administer, any Material Plan; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the
meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $25,000,000; or
(j) a judgment or order for the payment of money in excess
of $25,000,000 shall be rendered against the Borrower or any Subsidiary
of the Borrower and such judgment or order shall continue unsatisfied
and unstayed for a period of 30 days;
then, and in every such event, the Syndication Agent shall (i) if requested by
the Required Banks, by notice to the Borrower terminate the Commitments and they
shall thereupon terminate, and (ii) if requested by Banks holding more than 50%
of the sum of the aggregate principal amount of the Loans and the Letter of
Credit Liabilities, by notice to the Borrower declare the Loans and the Letter
of Credit Liabilities (together with accrued interest thereon) to be, and the
Loans (together with accrued interest thereon) shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; PROVIDED that in
the case of any of the Events of Default specified in clause (g) or (h) above
with respect to the Borrower, without any notice to the Borrower or any other
act by the Syndication Agent or the Banks, the Commitments shall thereupon
terminate and the Loans and the Letter of Credit Liabilities (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
6.02 NOTICE OF DEFAULT. The Syndication Agent shall give notice to
the Borrower under Section 6.01(c) promptly upon being requested to do so by any
Bank and shall thereupon notify all the Banks thereof.
6.03 CASH COVER. The Borrower agrees, in addition to the provisions
of Section 6.01 hereof, that upon the occurrence and during the continuance of
any Event of Default, it shall, if requested by the Syndication Agent upon the
instruction of the Required Banks, pay to the Administrative Agent an amount in
immediately available funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the Syndication Agent) equal to the aggregate
amount available for drawing under all Letters of Credit then outstanding at
such time, provided that, upon the occurrence of any Event of Default specified
in Section 6.01(g) or 6.01(h) with respect to the Borrower, the Borrower shall
pay such amount forthwith without any notice or demand or any other act by
either Agent or the Banks.
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ARTICLE VII
THE AGENTS
7.01 APPOINTMENT AND AUTHORIZATION. Each Bank irrevocably appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers under the Loan Documents as are delegated to such Agent by
the terms hereof or thereof, together with all such powers as are reasonably
incidental thereto.
7.02 AGENTS AND AFFILIATES. Bank of America, N.A. and The Bank of New
York shall each have the same rights and powers under this Agreement as any
other Bank and may exercise or refrain from exercising the same as though it
were not an Agent, and Bank of America, N.A. and The Bank of New York and their
respective affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with, the Borrower or any Subsidiary or affiliate
of the Borrower as if it were not an Agent hereunder.
7.03 ACTION BY AGENTS. The obligations of the Agents hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, neither Agent shall be required to take any action with respect to
any Default, except in the case of the Syndication Agent as expressly provided
in Article VI.
7.04 CONSULTATION WITH EXPERTS. Each Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
7.05 LIABILITY OF AGENT. Neither any Agent nor any of their
respective affiliates nor any of the respective directors, officers, agents or
employees of any of the foregoing shall be liable for any action taken or not
taken by it in connection herewith (i) with the consent or at the request of the
Required Banks or (ii) in the absence of its own gross negligence or willful
misconduct. Neither any Agent nor any of their respective affiliates nor any of
the respective directors, officers, agents or employees of any of the foregoing
shall be responsible for or have any duty to ascertain, inquire into or verify
(a) any statement, warranty or representation made in connection with this
Agreement or any borrowing hereunder; (b) the performance or observance of any
of the covenants or agreements of the Borrower; (c) the satisfaction of any
condition specified in Article III, except in the case of the Syndication Agent
receipt of items required to be delivered to it; or (d) the validity,
effectiveness or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in connection herewith. Neither Agent shall
incur any liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex, facsimile
transmission or similar writing) believed by it to be genuine or to be signed by
the proper party or parties.
7.06 INDEMNIFICATION. Each Bank shall, ratably in accordance with its
Commitment, indemnify each Agent, its affiliates and their respective directors,
officers, agents and employees (to the extent not reimbursed by the Borrower)
against any cost, expense (including counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from such indemnitees,
gross negligence or willful misconduct) that such indemnitees may suffer or
incur in connection with such Agent's role under this Agreement or any related
action taken or omitted by such indemnitees hereunder.
7.07 CREDIT DECISION. Each Bank acknowledges that it has,
independently and without reliance upon either Agent, the Arrangers or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently and without reliance upon
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either Agent, the Arrangers or any other Bank, 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 any action under this Agreement.
7.08 SUCCESSOR AGENT. Either Agent may resign at any time subject to
the appointment of a successor Agent by giving notice to the Banks and the
Borrower. Upon any such resignation, the Required Banks shall have the right to
appoint a successor Agent with the consent of the Borrower, which consent shall
not be unreasonably withheld or delayed; provided that no such consent shall be
required if the successor Agent is a Bank. If no successor Agent shall have been
so appointed, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation, then the retiring Agent may,
on behalf of the Banks, and without the Borrower's consent, appoint a successor
Agent, which shall be a commercial bank organized or licensed under the laws of
the United States of America or of any State thereof and having a combined
capital and surplus of at least $1,000,000,000. Upon the acceptance of its
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
7.09 AGENTS' FEES. The Borrower shall pay to each Agent for its own
account fees in the amounts and at the times previously agreed upon between the
Borrower and such Agent.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES
8.01 BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR. If on
or prior to the first day of any Interest Period for any Fixed Rate Borrowing:
(a) the Administrative Agent is advised by the Reference
Banks that deposits in the applicable currency and amounts are not being
offered to the Reference Banks in the relevant market for such Interest
Period, or
(b) in the case of a Committed Borrowing, Banks having 50%
or more of the aggregate amount of the Commitments advise the
Administrative Agent that the Adjusted CD Rate or the London Interbank
Offered Rate, as the case may be, as determined by the Administrative
Agent will not adequately and fairly reflect the cost to such Banks of
funding their CD Loans or Euro-Currency Loans, as the case may be, for
such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make CD Loans or Euro-Currency Loans (in the
affected currency), as the case may be, shall be suspended. Unless the Borrower
notifies the Administrative Agent at least two Domestic Business Days before the
date of any Fixed Rate Borrowing for which a Notice of Borrowing has previously
been given that it elects not to borrow on such date, (i) if such Fixed Rate
Borrowing is a Committed Borrowing, such Borrowing shall instead be made as a
Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money Market
LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest for each day from and including the first day to but excluding the
last day of the Interest Period applicable thereto at the Base Rate for such
day. The Administrative Agent shall promptly notify the Banks of any election by
the Borrower pursuant to the preceding sentence.
8.02 ILLEGALITY. If after the date of this Agreement, the adoption of
any applicable law, rule or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank (or
its Euro-Currency Lending Office) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency shall make it unlawful or impossible for any Bank (or its Euro-Currency
Lending Office) to make, maintain or fund its Euro-Currency Loans and such Bank
shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Banks and the Borrower, whereupon
until such Bank notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make Euro-Currency Loans shall be suspended. Before giving any
notice to the Administrative Agent pursuant to this Section, such Bank shall
designate a different Euro-Currency Lending Office if such designation will
avoid the need for giving such notice and will not, in the sole judgment of such
Bank, be otherwise disadvantageous to such Bank. If such Bank shall determine
that it may not lawfully continue to maintain and fund any of its outstanding
Euro-Currency Loans to maturity and shall so specify in such notice, the
Borrower shall immediately prepay in full the then outstanding principal amount
of each such Euro-Currency Loan, together with accrued interest thereon.
Concurrently with prepaying each such Euro-Currency Loan, the Borrower shall
borrow a Base Rate Loan in an equal principal amount from such Bank (on which
interest and principal shall be payable contemporaneously with the related
Euro-Currency Loans of the other Banks), and such Bank shall make such a Base
Rate Loan.
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8.03 INCREASED COST AND REDUCED RETURN.
(a) If after (x) the Effective Date or (y) the date of the
related Money Market Quote, in the case of any Money Market Loan, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office)
with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Applicable
Lending Office) to any tax, duty or other charge with respect to
its Loans, its Note or its obligation to make Loans or its
obligations hereunder in respect of Letters of Credit, or shall
change the basis of taxation of payments to any Bank (or its
Applicable Lending Office) of the principal of or interest on
its Loans or any other amounts due under this Agreement in
respect of its Loans or its obligation to make Loans (except for
changes in the rate of tax on the overall net income of such
Bank or its Applicable Lending Office imposed by the
jurisdiction in which such Bank's principal executive office or
Applicable Lending Office is located) or subjects such Bank to
United States withholding tax; or
(ii) shall impose, modify or deem applicable any
reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System,
but excluding (A) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve
Percentage and (B) with respect to any Euro-Currency Loan any
such requirement included in an applicable Euro-Currency Reserve
Percentage), special deposit, insurance assessment (excluding,
with respect to any CD Loan, any such requirement reflected in
an applicable Assessment Rate) or similar requirement against
assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Applicable Lending Office) or
shall impose on any Bank (or its Applicable Lending Office) or
on the United States market for certificates of deposit or the
London interbank market any other condition affecting its Fixed
Rate Loans, its Note or its obligation to make Fixed Rate Loans
or its obligations hereunder in respect to Letters of Credit;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Loan or of issuing
or participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Bank (or its Applicable Lending Office) under
this Agreement or under its Note with respect thereto, by an amount deemed by
such Bank to be material, then, subject to clause (d) of this Section, within 15
days after demand by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction (subject in the case
of clause (a)(i), to delivery by such Bank of IRS form W-8 ECI or W-8 BEN
pursuant to Section 2.18 that demonstrates complete exemption from United States
withholding tax as of the date such Bank first became a party hereto).
(b) If after the Effective Date, any Bank shall have
determined that any applicable law, rule or regulation regarding capital
adequacy (irrespective of the actual timing of the adoption or
implementation thereof and including, without limitation, any law or
regulation adopted pursuant to the July 1988 report of the Basle
Committee on Banking Regulations and Supervisory Practices) or any
change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or
-44-
comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office)
with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of
return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or
its Parent) could have achieved but for such law, regulation, change or
compliance (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then,
subject to clause (d) of this Section, from time to time, within 15 days
after demand by such Bank (with a copy to the Administrative Agent), the
Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to compensation
pursuant to this Section and will designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the sole judgment of
such Bank, be otherwise disadvantageous to such Bank.
(d) Borrower shall not be required to reimburse any Bank for
any increased costs, reductions or payments under this Section arising
prior to 90 days preceding the date of any claim or demand by a Bank for
compensation under this Section except to the extent the applicable law
or regulation is imposed retroactively and the demand or claim is made
within 90 days of the effect (in which case such claim or demand shall
be submitted within 90 days of the date upon which such Bank becomes
aware or should reasonably be aware of such law or regulation). A
certificate of any Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it
hereunder (with detail sufficient to allow the verification by Borrower
of its calculations) shall be conclusive in the absence of manifest
error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
8.04 BASE RATE LOANS SUBSTITUTED FOR AFFECTED FIXED RATE LOANS. If
(i) the obligation of any Bank to make Euro-Currency Loans has been suspended
pursuant to Section 8.02 or (ii) any Bank has demanded compensation under
Section 8.03(a) and the Borrower shall, by at least five Euro-Currency Business
Days, prior notice to such Bank through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless and
until such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Bank as
CD Loans or Euro-Currency Loans, as the case may be, shall be made
instead as Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate Loans of the other
Banks), and
(b) after each of its CD Loans or Euro-Currency Loans, as
the case may be, has been repaid, all payments of principal which would
otherwise be applied to repay such Fixed Rate Loans shall be applied to
repay its Base Rate Loans instead.
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ARTICLE IX
MISCELLANEOUS
9.01 NOTICES. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, telex, telecopy or
similar writing) and shall be given to such party: (x) in the case of the
Borrower or either Agent, at its address or telex or telecopier number set forth
on the signature pages hereof, (y) in the case of any Bank, at its address or
telex or telecopier number set forth in its Administrative Questionnaire or (z)
in the case of any party, such other address or telex or telecopier number as
such party may hereafter specify for the purpose by notice to the Administrative
Agent and the Borrower. Each such notice, request or other communication shall
be effective (i) if given by telex, when such telex is transmitted to the telex
number specified in this Section and the appropriate answerback is received,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid or (iii) if given
by any other means, when delivered or received at -the address specified in this
Section; provided that notices to the Administrative Agent or the Issuing Bank
under Article II or Article VIII shall not be effective until received.
9.02 NO WAIVERS. No failure or delay by either Agent or any Bank
in-exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
9.03 EXPENSES; DOCUMENTARY TAXES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses of the Agents and the Arrangers, including reasonable fees and
disbursements of counsel for the Syndication Agent in connection with
the preparation of this Agreement and all related documents, the
negotiation, closing and syndication of this Agreement and the Loans
(including due diligence with respect thereto), the administration of
this Agreement and the Loans, and in connection with any waiver,
amendment or consent hereunder, or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all reasonable
out-of-pocket expenses incurred by each Agent or by any Bank, including
fees and disbursements of counsel, in connection with such Event of
Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom. The Borrower shall indemnify each Bank
against any transfer taxes, documentary taxes, mortgage recording taxes,
assessments or charges made by any governmental authority by reason of
the execution and delivery or enforcement of any of the Loan Documents.
(b) The Borrower agrees to indemnify each Agent, each
Arranger, each Bank, and their respective affiliates and the respective
directors, officers, agents and employees of the foregoing (each an
"Indemnitee") and hold each Indemnitee harmless from and against any and
all liabilities, losses, damages, costs and expenses of any kind,
including, without limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans hereunder; provided that no Indemnitee
shall have the right to be indemnified hereunder for such Indemnitee's
own gross negligence or willful misconduct as determined by a court of
competent jurisdiction.
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9.04 AMENDMENTS AND WAIVERS. No amendment or waiver of the terms of
this Agreement or the other Loan Documents shall be made or be effective unless
such amendment or waiver is in writing and is signed by the Borrower and the
Required Banks (and, if the rights or duties of either Agent or any Issuing Bank
are affected thereby, by such Agent or Issuing Bank, as relevant); provided that
no such amendment or waiver shall, unless signed by all the Banks, (i) except as
contemplated by Section 2.19, increase or decrease the Commitment of any Bank
(except for a ratable decrease in the Commitments of all Banks) or subject any
Bank to any additional obligation, (ii) reduce the principal of or rate of
interest on any Loan or the amount to be reimbursed in respect of any Letter of
Credit or interest thereon or any fees hereunder, (iii) postpone the date fixed
for any payment of principal of or interest on any Loan or the amount to be
reimbursed in respect of any Letter of Credit or interest thereon or any fees
hereunder, or the Termination Date, (iv) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes and Letter
of Credit Liabilities, or the percentage of Banks, which shall be required for
the Banks or any of them to take any action under this Section or any other
provision of this Agreement or (v) render more restrictive the ability of any
Bank to assign or grant participations in its Commitment under Section 9.05.
9.05 SUCCESSORS AND ASSIGNS.
(a) This Agreement and the other Loan Documents to which
Borrower is a party will be binding upon and inure to the benefit of
Borrower, the Administrative Agent, each of the Banks, and their
respective successors and permitted assigns, EXCEPT that the Borrower
may not assign its rights hereunder or thereunder or any interest herein
or therein without the prior written consent of all the Banks. Each Bank
represents that it is not acquiring its Note with a view to the
distribution thereof within the meaning of the Securities Act of 1933,
as amended (subject to any requirement that disposition of such Note
must be within the control of such Bank). Any Bank may at any time
pledge its Note or any other instrument evidencing its rights as a Bank
under this Agreement to a Federal Reserve Bank, but no such pledge shall
release that Bank from its obligations hereunder or grant to such
Federal Reserve Bank the rights of a Bank hereunder absent foreclosure
of such pledge.
(b) From time to time following the Effective Date, each
Bank may assign to one or more Eligible Assignees all or any portion of
its Commitment; PROVIDED that (i) such Eligible Assignee, if not then a
Bank or an affiliate of the assigning Bank, shall be approved by each of
the Administrative Agent and (if no Default or Event of Default then
exists) the Borrower (neither of which approvals shall be unreasonably
withheld or delayed), (ii) such assignment shall be evidenced by an
Assignment and Assumption Agreement substantially in the form of Exhibit
H, a copy of which shall be furnished to the Administrative Agent as
hereinbelow provided, (iii) EXCEPT in the case of an assignment to an
affiliate of the assigning Bank, to another Bank or of the entire
remaining Commitment of the assigning Bank, the assignment shall not
assign a portion of the Commitments that is equivalent to less than
$5,000,000, and (iv) the effective date of any such assignment shall be
as specified in the Assignment and Assumption Agreement, but not earlier
than the date which is five Domestic Business Days after the date the
Administrative Agent has received the Assignment and Assumption
Agreement. Upon the effective date of the Assignment and Assumption
Agreement, the Eligible Assignee named therein shall be a Bank for all
purposes of this Agreement, with the Commitment therein set forth and,
to the extent of such Commitment, the assigning Bank shall be released
from its further obligations under this Agreement. Borrower agrees that
it shall execute and deliver (against delivery by the assigning Bank to
Borrower of its Note) to such assignee Bank, a Note evidencing that
assignee Bank's Commitment, and to the assigning Bank, a Note evidencing
the remaining Commitment retained by the assigning Bank.
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(c) By executing and delivering an Assignment and Assumption
Agreement, the Eligible Assignee thereunder acknowledges and agrees
that: (i) other than the representation and warranty that it is the
legal and beneficial owner of the Commitment being assigned thereby free
and clear of any adverse claim, the assigning Bank has made no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with this Agreement or the execution, legality, validity,
enforceability, genuineness or sufficiency of this Agreement or any
other Loan Document; (ii) the assigning Bank has made no representation
or warranty and assumes no responsibility with respect to the financial
condition of Borrower or the performance by Borrower of its obligations
under this Agreement; (iii) it has received a copy of this Agreement,
together with copies of the most recent financial statements delivered
pursuant to Section 5.01 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Assumption Agreement; (iv) it will,
independently and without reliance upon the Administrative Agent or any
Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) it appoints and
authorizes the Administrative Agent to take such action and to exercise
such powers under this Agreement as are delegated to the Administrative
Agent by this Agreement; and (vi) it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement
are required to be performed by it as a Bank.
(d) The Administrative Agent shall maintain a copy of each
Assignment and Assumption Agreement delivered to it and a register (the
"Register") of the names and address of each of the Banks and the
Commitment held by each Bank, giving effect to each Assignment and
Assumption Agreement. The Register shall be available during normal
business hours for inspection by Borrower or any Bank upon reasonable
prior notice to the Administrative Agent. After receipt of a completed
Assignment and Assumption Agreement executed by any Bank and an Eligible
Assignee (including without limitation any existing Bank), and receipt
of an assignment fee of $3,500 from such Bank or Eligible Assignee, the
Administrative Agent shall, promptly following the effective date
thereof, provide to Borrower and the affected Banks notice of such
effectiveness. Borrower, the Administrative Agent and the Banks shall
deem and treat the Persons listed as Banks in the Register as the
holders and owners of the Commitments listed therein for all purposes
hereof, and no assignment or transfer of any Commitment shall be
effective, in each case unless and until an Assignment and Assumption
Agreement effecting the assignment or transfer thereof shall have been
accepted by the Administrative Agent and recorded in the Register as
provided above. Prior to such recordation, all amounts owed with respect
to the applicable Commitment shall be owed to the Bank listed in the
Register as the owner thereof, and any request, authority or consent of
any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Bank shall be
conclusive and binding on any subsequent holder, assignee or transferee
of the corresponding Commitment.
(e) Each Bank may from time to time grant participations to
one or more Banks or other financial institutions (INCLUDING another
Bank) in its Commitment; PROVIDED, HOWEVER, that (i) such Bank's
obligations under this Agreement shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating Banks or other
financial institutions shall not be a Bank hereunder for any purpose
(provided that the participation agreement may provide for a Bank to
allow the participant the derivative benefit of Sections 2.22, 8.03 and
9.03, but such derivative benefits shall not increase the overall cost
to Borrower under such Sections), (iv) Borrower, the Administrative
Agent and the other Banks shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations
under this
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Agreement, (v) the participation interest shall be expressed as a
percentage of the granting Bank's Commitment as it then exists and shall
not restrict an increase in the Commitments, or in the granting Bank's
Commitment, so long as the amount of the participation interest is not
affected thereby and (vi) the consent of the holder of such
participation interest shall not be required for amendments, consents or
waivers of provisions of the Loan Documents OTHER THAN those which
(A) result in a decrease in fees, interest rate spreads or principal
payable to the holder of such participation, (B) increase the Commitment
of the granting Banks and thereby increase the funding requirements of
the holder of such a participation, or (C) extend the Termination Date.
(f) Notwithstanding anything to the contrary contained
herein, any Bank (a "Granting Bank") may grant to special purpose
funding vehicles (each, an "SPC") of such Granting Bank, identified as
such in writing from time to time by the Granting Bank to the
Administrative Agent and the Borrower the option to provide all or any
part of any Loan that such Granting Bank would otherwise be obligated to
make pursuant to this Agreement, provided that (i) nothing herein shall
constitute a commitment to make any Loan by any SPC, (ii) if an SPC
elects not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Bank shall be obligated to make such
Loan pursuant to the terms hereof, and (iii) except as expressly set
forth herein, the rights of any such SPC shall be derivative of the
rights of the Granting Bank, and each SPC shall be subject to all of the
restrictions upon the Granting Bank herein contained. Each SPC shall be
conclusively presumed to have made arrangements with its Granting Bank
for the exercise of voting and other rights hereunder in a manner which
is acceptable to the SPC, and the Administrative Agent, the Banks and
Borrower and each other party shall be entitled to rely upon and deal
solely with the Granting Bank with respect to Loans made by or through
its SPC. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Loan
were made by the Granting Bank. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the
related Granting Bank). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding senior indebtedness of any
SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or similar
proceedings under the laws of the United States of America or any State
thereof. In addition, notwithstanding anything to the contrary contained
in this Section 9.05, each SPC may, at any time, without regard to the
period required by Section 9.05(b)(iv), (i) with notice to, but without
the prior written consent of, the Borrower or the Administrative Agent,
and without paying any processing fee therefor, assign all or a portion
of its interests in any Loans to its Granting Bank (or to any other SPC
of such Granting Bank) or to any financial institutions providing
liquidity and/or credit facilities to or for the account of such SPC to
fund the Loans made by such SPC or to support the securities (if any)
issued by such SPC to fund such Loans (but nothing contained herein
shall be construed in derogation of the obligation of the Granting Bank
to make Loans hereunder), and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of a surety, guarantee or credit or
liquidity enhancement to such SPC. This Section 9.05(f) may not be
amended without the consent of all SPC's then designated to the
Administrative Agent in accordance with the foregoing provisions of this
Section.
9.06 NEW YORK LAW; SUBMISSION TO JURISDICTION. This Agreement and
each Note shall be construed in accordance with and governed by the laws of the
State of New York. The Borrower hereby submits to the nonexclusive jurisdiction
of the United States District Court for the
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of New York and of any New York state court sitting in New
York City, New York (in each case, applying such law) for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Borrower irrevocably, waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such proceeding brought in such a court and any claim that
any such proceeding brought in such a court has been brought in an inconvenient
forum.
9.07 COUNTERPARTS; INTEGRATION. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement constitutes the entire agreement and understanding among the parties
hereto and supersedes any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.
9.08 SEVERAL OBLIGATIONS. The obligations of the Banks hereunder are
several. Neither the failure of any Bank to carry out its obligations hereunder
nor of this Agreement to be duly authorized, executed and delivered by any Bank
shall relieve any other Bank of its obligations hereunder (or affect the rights
hereunder of such other Bank). No Bank shall be responsible for the obligations
of, or any action taken or omitted by, any other Bank hereunder.
9.09 SHARING OF SET-OFFS. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any Note held by it and any Letter of Credit Liabilities which is greater
than the proportion received by any other Bank in respect of the aggregate
amount of principal and interest due with respect to any Note and any Letter of
Credit Liabilities held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
and Letter of Credit Liabilities held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Notes and Letter of Credit
Liabilities held by the Banks shall be shared by the Banks pro rata; PROVIDED
that nothing in this Section shall impair the right of any Bank to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note or Letter of Credit Liability, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of set-off or counterclaim and other
rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
9.10 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS AND THE
BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
HILTON HOTELS CORPORATION
By ___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President and Treasurer
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
THE BANK OF NEW YORK, as Administrative Agent
and as a Bank
By: ______________________________________
Title: _____________________________________
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BANK OF AMERICA, N.A., as Syndication Agent
and as a Bank
By: ____________________________________
Title: _________________________________
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▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:_________________________________________
Title:______________________________________
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▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
By:_________________________________________
Title:______________________________________
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▇▇▇▇▇ FARGO BANK, N.A.
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
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▇▇▇▇▇▇▇▇ ▇▇▇▇, N.A.
By:_________________________________________
Title:______________________________________
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DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
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THE FUJI BANK, LIMITED
By:_________________________________________
Title:______________________________________
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▇▇▇▇▇ ▇▇▇▇, N.A.
By:_________________________________________
Title:______________________________________
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▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, LTD.
By:_________________________________________
Title:______________________________________
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THE SAKURA BANK LIMITED
By:_________________________________________
Title:______________________________________
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▇▇▇▇▇▇ GUARANTY TRUST COMPANY
By:_________________________________________
Title:______________________________________
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CREDIT LYONNAIS NEW YORK BRANCH
By:_________________________________________
Title:______________________________________
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THE NORTHERN TRUST COMPANY
By:_________________________________________
Title:______________________________________
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▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By:_________________________________________
Title:______________________________________
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▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
BRANCH
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
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▇▇▇ ▇▇▇▇▇▇▇
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
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LOS ANGELES FOREIGN BRANCH
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
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CREDIT INDUSTRIEL ET COMMERCIAL
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
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CREDIT SUISSE FIRST BOSTON
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
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BANCA DI ROMA
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
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BANK ONE, N.A.
By:_________________________________________
Title:______________________________________
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▇▇▇▇▇ ▇▇▇▇
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
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▇▇▇▇▇▇▇ ▇▇▇▇ N.A.
By:_________________________________________
Title:______________________________________
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FIRST HAWAIIAN BANK
By:_________________________________________
Title:______________________________________
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KBC BANK
By:_________________________________________
Title:______________________________________
By:_________________________________________
Title:______________________________________
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▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By:_________________________________________
Title:______________________________________
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THE SANWA BANK, LIMITED, LOS ANGELES BRANCH
By:_________________________________________
Title:______________________________________
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▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By:_________________________________________
Title:______________________________________
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HIBERNIA NATIONAL BANK
By:_________________________________________
Title:______________________________________
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PRICING SCHEDULE
This Pricing Schedule is attached to and made a part of the Amended and
Restated Credit Agreement dated October 6, 2000, among Hilton Hotels
Corporation, a Delaware corporation, the Banks referred to therein, Bank of
America, N.A., as Syndication Agent, and The Bank of New York, as Administrative
Agent (the "Credit Agreement"). Capitalized terms used in this Pricing Schedule
are used with the meanings set forth for those terms in the Credit Agreement.
As used herein and in the Credit Agreement, the following terms have the
meanings set forth below:
"Applicable Debt Rating" means, as of any date of determination, the rating
assigned by the Rating Agencies to the senior unsecured long-term debt
securities of the Borrower without third-party credit enhancement (and any
rating assigned to any other debt security of the Borrower shall be
disregarded), as of the close of business on such date, provided that (a) if
such securities receive a split-rating and the rating differential is one level,
the higher of the two ratings will apply and (b) if such securities receive a
double split-rating and the ratings differential is more than one level, the
average of the two ratings (or the higher of any two intermediate ratings) shall
be used.
"Applicable Leverage Ratio" means, for each Pricing Period, the Leverage
Ratio in effect as of the last day of the fiscal quarter ending two calendar
months prior to the first day of that Pricing Period.
"Base Rate Margin" means, as of each date of determination (i) the LESSER
OF (x) the rate per annum (expressed in basis points) set forth in the Pricing
Matrix opposite the Applicable Debt Rating as of that date in the column headed
"Base Rate Margin" and (y) the rate per annum (expressed in basis points) set
forth in the Pricing Matrix opposite the Applicable Leverage Ratio as of that
date in the column headed "Base Rate Margin" PLUS (ii) any applicable Margin
Adjustment.
"CD Margin" means, as of each date of determination (i) the LESSER OF (x)
the rate per annum (expressed in basis points) set forth in the Pricing Matrix
opposite the Applicable Debt Rating as of that date in the column headed "CD
Margin" and (y) the rate per annum (expressed in basis points) set forth in the
Pricing Matrix opposite the Applicable Leverage Ratio as of that date in the
column headed "CD Margin" PLUS (ii) any applicable Margin Adjustment.
"Euro-Currency Margin" means, as of each date of determination (i) the
LESSER OF (x) the rate per annum (expressed in basis points) set forth in the
Pricing Matrix opposite the Applicable Debt Rating as of that date in the column
headed "Euro-Currency Margin" and (y) the rate per annum (expressed in basis
points) set forth in the Pricing Matrix opposite the Applicable Leverage Ratio
as of that date in the column headed "Euro-Currency Margin" PLUS (ii) any
applicable Margin Adjustment.
"Facility Fee Rate" means, as of each date of determination, the LESSER OF
(x) the rate per annum (expressed in basis points) set forth in the Pricing
Matrix opposite the Applicable Debt Rating as of that date in the column headed
"Facility Fee Rate" and (y) the rate per annum (expressed in basis points) set
forth in the Pricing Matrix opposite the Applicable Leverage Ratio as of that
date in the column headed "Facility Fee Rate."
"LC Fee Rate" means, as of each date of determination, the then applicable
Euro-Currency Margin.
"Margin Adjustment" means an adjustment to the Base Rate Margin,
Euro-Currency Margin and the CD Margin equal, (a) during each Pricing Period for
which the Applicable Leverage
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Ratio is equal to or less than 4.75:1.00, 0 basis points, and (b) during each
Pricing Period for which the Applicable Leverage Ratio is in excess of
4.75:1.00, 7.5 basis points, PROVIDED in each case that if Borrower fails to
deliver any Compliance Certificate or Pricing Certificate on the date when
required by Section 5.01, and it is ultimately determined that the Applicable
Leverage Ratio would have resulted in an increased adjustment to the Base Rate
Margin, Euro-Currency Margin or CD Margin, then (i) the rate at which interest
and letter of credit fees accrue under the Credit Agreement shall be increased
in accordance with this Schedule, with retroactive effect to the first day of
the Pricing Period to which such Compliance Certificate or Pricing Certificate
relates, and (ii) Borrower shall, within 10 Domestic Business Days of a request
by the Administrative Agent, make such additional payments to the Banks through
the Administrative Agent as are required to give effect to such increased
interest rates and letter of credit fees in respect of any payments previously
made by Borrower.
"Pricing Matrix" means the following matrix, expressing the Euro-Currency
Margin, the CD Margin the Base Rate Margin and the Facility Fee Rate applicable
to various Applicable Debt Ratings and Applicable Leverage Ratios, as
applicable, in basis points:
---------------------------------- ---------------------------------- ------------- --------- --------- ------------
Applicable Debt Applicable Euro-Currency CD Margin Base Rate Facility Fee
Rating Leverage Margin Margin Rate
Ratio
---------------------------------- ---------------------------------- ------------- --------- --------- ------------
GREATER THAN OR EQUAL TO BBB+/Baa1 LESS THAN 2.25:1.00 72.5 85.0 0 15.0
---------------------------------- ---------------------------------- ------------- --------- --------- ------------
BBB/Baa2 GREATER THAN OR EQUAL TO 2.25:1.00 95.0 107.5 0 17.5
and
LESS THAN 3.00:1.00
---------------------------------- ---------------------------------- ------------- --------- --------- ------------
BBB-/Baa3 GREATER THAN OR EQUAL TO 3.00:1.00 102.5 115.0 2.5 22.5
and
LESS THAN 3.75:1.00
---------------------------------- ---------------------------------- ------------- --------- --------- ------------
BB+/Ba1 GREATER THAN OR EQUAL TO 3.75:1.00 112.5 125.0 12.5 25.0
and
LESS THAN 4.50:1.00
---------------------------------- ---------------------------------- ------------- --------- --------- ------------
BB/Ba2 or lower GREATER THAN OR EQUAL TO 4.50:1.00 130.0 142.5 30.0 32.5
ratings
---------------------------------- ---------------------------------- ------------- --------- --------- ------------
"Pricing Period" means (a) the period from the Effective Date through
February 28, 2001, and (b) each subsequent period of three months beginning on
the first day of each March, June, September and December and ending on the last
day of the succeeding May, August, November and February.
By executing this Pricing Schedule in the space provided below, the Borrower
confirms that it is the authentic document to be attached to the Credit
Agreement.
HILTON HOTELS CORPORATION
By:
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President and Treasurer
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