Exhibit 10.1
CONFORMED COPY
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$1,150,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 5, 2001
among
CENDANT CORPORATION
as Borrower
and
THE LENDERS REFERRED TO HEREIN
and
THE CHASE MANHATTAN BANK, as Administrative Agent
THE BANK OF NOVA SCOTIA,
CREDIT LYONNAIS NEW YORK BRANCH and
CITIBANK N.A.,
as Co-Documentation Agents
BANK OF AMERICA, N.A., as Syndication Agent
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as Lead Arranger
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS....................................................................................1
2. THE LOANS.....................................................................................20
SECTION 2.1. Commitments..................................................................20
SECTION 2.2. Loans........................................................................21
SECTION 2.3. Use of Proceeds..............................................................22
SECTION 2.4. Competitive Bid Procedure....................................................22
SECTION 2.5. Revolving Credit Borrowing Procedure.........................................24
SECTION 2.6. Refinancings.................................................................25
SECTION 2.7. Fees.........................................................................25
SECTION 2.8. Repayment of Loans; Evidence of Debt.........................................26
SECTION 2.9. Interest on Loans............................................................27
SECTION 2.10. Interest on Overdue Amounts..................................................28
SECTION 2.11. Alternate Rate of Interest...................................................28
SECTION 2.12. Termination and Reduction of Commitments; Increase of Commitments............29
SECTION 2.13. Prepayment of Loans..........................................................30
SECTION 2.14. Eurodollar Reserve Costs.....................................................30
SECTION 2.15. Reserve Requirements; Change in Circumstances................................31
SECTION 2.16. Change in Legality...........................................................33
SECTION 2.17. Reimbursement of Lenders.....................................................33
SECTION 2.18. Pro Rata Treatment...........................................................34
SECTION 2.19. Right of Setoff..............................................................35
SECTION 2.20. Manner of Payments...........................................................35
▇▇▇▇▇▇▇ ▇.▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Withholding....................................................36
SECTION 2.22. Certain Pricing Adjustments..................................................37
SECTION 2.23. Letters of Credit............................................................38
3. REPRESENTATIONS AND WARRANTIES OF BORROWER....................................................42
SECTION 3.1. Corporate Existence and Power................................................42
SECTION 3.2. Corporate Authority, No Violation and Compliance with Law....................43
SECTION 3.3. Governmental and Other Approval and Consents.................................43
SECTION 3.4. Financial Statements of Borrower.............................................43
SECTION 3.5. No Material Adverse Change...................................................43
SECTION 3.6. [Reserved]...................................................................43
SECTION 3.7. Copyrights, Patents and Other Rights.........................................44
SECTION 3.8. Title to Properties..........................................................44
SECTION 3.9. Litigation...................................................................44
SECTION 3.10. Federal Reserve Regulations..................................................44
SECTION 3.11. Investment Company Act.......................................................44
SECTION 3.12. Enforceability...............................................................44
SECTION 3.13. Taxes........................................................................45
SECTION 3.14. Compliance with ERISA........................................................45
SECTION 3.15. Disclosure...................................................................45
SECTION 3.16. Environmental Liabilities....................................................45
4. CONDITIONS OF LENDING.........................................................................46
SECTION 4.1. Conditions Precedent to Closing..............................................46
SECTION 4.2. Conditions Precedent to Each Extension of Credit.............................47
5. AFFIRMATIVE COVENANTS.........................................................................48
SECTION 5.1. Financial Statements, Reports, etc...........................................48
SECTION 5.2. Corporate Existence; Compliance with Statutes................................50
SECTION 5.3. Insurance....................................................................50
SECTION 5.4. Taxes and Charges............................................................50
SECTION 5.5. ERISA Compliance and Reports.................................................50
SECTION 5.6. Maintenance of and Access to Books and Records; Examinations.................51
SECTION 5.7. Maintenance of Properties....................................................51
SECTION 5.8. Changes in Character of Business.............................................51
6. NEGATIVE COVENANTS............................................................................52
SECTION 6.1. Limitation on Indebtedness...................................................52
SECTION 6.2. INTENTIONALLY OMITTED........................................................53
SECTION 6.3. Hotel Subsidiaries...........................................................53
SECTION 6.4. Consolidation, Merger, Sale of Assets........................................53
SECTION 6.5. Limitations on Liens.........................................................54
SECTION 6.6. Sale and Leaseback...........................................................55
SECTION 6.7. Debt to Capitalization Ratio.................................................55
SECTION 6.8. Interest Coverage Ratio......................................................56
SECTION 6.9. Accounting Practices.........................................................56
7. EVENTS OF DEFAULT.............................................................................56
8. THE ADMINISTRATIVE AGENT AND EACH ISSUING LENDER..............................................58
SECTION 8.1. Administration by Administrative Agent.......................................58
SECTION 8.2. Advances and Payments........................................................58
SECTION 8.3. Sharing of Setoffs and Cash Collateral.......................................59
SECTION 8.4. Notice to the Lenders........................................................60
SECTION 8.5. Liability of Administrative Agent and each Issuing Lender....................60
SECTION 8.6. Reimbursement and Indemnification............................................61
SECTION 8.7. Rights of Administrative Agent...............................................61
SECTION 8.8. Independent Investigation by Lenders.........................................61
SECTION 8.9. Notice of Transfer...........................................................62
SECTION 8.10. Successor Administrative Agent...............................................62
SECTION 8.11. Resignation of an Issuing Lender.............................................62
9. MISCELLANEOUS.................................................................................62
SECTION 9.1. Notices......................................................................62
SECTION 9.2. Survival of Agreement, Representations and Warranties, etc...................63
SECTION 9.3. Successors and Assigns; Syndications; Loan Sales; Participations.............63
SECTION 9.4. Expenses; Documentary Taxes..................................................67
SECTION 9.5. Indemnity....................................................................68
SECTION 9.6. CHOICE OF LAW................................................................68
SECTION 9.7. No Waiver....................................................................68
SECTION 9.8. Extension of Maturity........................................................69
SECTION 9.9. Amendments, etc..............................................................69
SECTION 9.10. Severability.................................................................69
SECTION 9.11. SERVICE OF PROCESS; WAIVER OF JURY TRIAL.....................................70
SECTION 9.12. Headings.....................................................................71
SECTION 9.13. Execution in Counterparts....................................................71
SECTION 9.14. Entire Agreement.............................................................71
SECTION 9.15. Confidentiality..............................................................71
SECTION 9.16. Delivery of Addenda..........................................................72
SCHEDULES
2.1 Commitments
3.9 Litigation
6.1 Existing Indebtedness
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Competitive Note
B Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
C Form of Assignment and Acceptance
D Form of Compliance Certificate
E-1 Form of Competitive Bid Request
E-2 Form of Competitive Bid Invitation
E-3 Form of Competitive Bid
E-4 Form of Competitive Bid Accept/Reject Letter
F Form of Revolving Credit Borrowing Request
G Form of Addendum
H Form of New Lender Supplement
I Form of Commitment Increase Supplement
AMENDED AND RESTATED
CREDIT AGREEMENT (the "AGREEMENT") dated
as of October 5, 2001, among
CENDANT CORPORATION, a Delaware corporation (the
"BORROWER"), the Lenders referred to herein and THE CHASE MANHATTAN BANK, a New
York banking corporation, as agent (the "ADMINISTRATIVE AGENT") for the Lenders.
INTRODUCTORY STATEMENT
The Borrower has requested that the Lenders amend and restate
the Term Loan Agreement, dated as of February 22, 2001 (the "EXISTING TERM LOAN
AGREEMENT"), among the Borrower, certain Lenders and the Administrative Agent to
convert the $650,000,000 term loan facility provided thereunder into a revolving
credit facility and to increase such facility by the amount of $500,000,000 to
establish a $1,150,000,000 committed revolving credit facility pursuant to which
Revolving Credit Loans may be made to, and Letters of Credit issued for the
account of, the Borrower (of which not more than the amounts described herein at
any time shall consist of Letters of Credit).
Subject to the terms and conditions set forth herein, each
Lender party to the Existing Term Loan Agreement is willing to have its Term
Loans under (and as defined in) the Existing Term Loan Agreement converted into
Revolving Credit Loans hereunder and to make other Loans to the Borrower and to
participate in Letters of Credit.
Accordingly, the parties hereto hereby agree to amend and
restate the Existing Term Loan Agreement as follows:
1. DEFINITIONS
For the purposes hereof unless the context otherwise requires,
the following terms shall have the meanings indicated, all accounting terms not
otherwise defined herein shall have the respective meanings accorded to them
under GAAP and all terms defined in the New York Uniform Commercial Code and not
otherwise defined herein shall have the respective meanings accorded to them
therein:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to the Alternate Base Rate
in accordance with the provisions of Article 2.
"ADDENDUM" shall mean an instrument, substantially in the form
of Exhibit G hereto, by which a Lender becomes a party to this
Agreement.
"AESOP FINANCING PROGRAM" means the transactions contemplated
by that certain Amended and Restated Base Indenture, dated as of July
30, 1997, between AESOP Funding II L.L.C., as issuer, and the Bank of
New York, as Trustee, as it may be from time to time further amended,
supplemented or modified, and the instruments and agreements referenced
therein and otherwise executed in connection therewith.
"AFFILIATE" shall mean any Person which, directly or
indirectly, is
in control of, is controlled by, or is under common control with, the
Borrower. For purposes of this definition, a Person shall be deemed to
be "controlled by" another if such latter Person possesses, directly or
indirectly, power either to (i) vote 10% or more of the securities
having ordinary voting power for the election of directors of such
controlled Person or (ii) direct or cause the direction of the
management and policies of such controlled Person whether by contract
or otherwise.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per
annum (rounded upwards to the nearest 1/16 of 1% if not already an
integral multiple of 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect for such day, (b) the Federal Funds Effective Rate in
effect for such day plus 1/2 of 1% or (c) the Base CD Rate in effect
for such day plus 1%. For purposes hereof, "PRIME RATE" shall mean the
rate per annum publicly announced by the Administrative Agent from time
to time as its prime rate in effect at its principal office in New York
City. For purposes of this Agreement, any change in the Alternate Base
Rate due to a change in the Prime Rate shall be effective on the date
such change in the Prime Rate is announced as effective. "FEDERAL FUNDS
EFFECTIVE RATE" shall mean, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as
published on the succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it. "BASE CD RATE"
shall mean the sum of (a) the product of (i) the Average Weekly
Three-Month Secondary CD Rate times (ii) a fraction of which the
numerator is 100% and the denominator is 100% minus the aggregate rates
of (A) basic and supplemental reserve requirements in effect on the
date of effectiveness of such Average Weekly Three-Month Secondary CD
Rate, as set forth below, under Regulation D of the Board applicable to
certificates of deposit in units of $100,000 or more issued by a
"member bank" located in a "reserve city" (as such terms are used in
Regulation D) and (B) marginal reserve requirements in effect on such
date of effectiveness under Regulation D applicable to time deposits of
a "member bank" and (b) the Assessment Rate. "AVERAGE WEEKLY
THREE-MONTH SECONDARY CD RATE" shall mean the three-month secondary
certificate of deposit ("CD") rate for the most recent weekly period
covered therein in the Federal Reserve Statistical release entitled
"Weekly Summary of Lending and Credit Measures (Averages of daily
figures)" released in the week during which occurs the day for which
the CD rate is being determined. The CD rate so reported shall be in
effect, for the purposes of this definition, for each day of the week
in which the release date of such publication occurs. If such
publication or a substitute containing the foregoing rate information
is not published by the Federal Reserve for any week, such average rate
shall be determined by the Administrative Agent on the basis of
quotations received by it from three New York City negotiable
certificate of deposit dealers of recognized standing on the first
Business Day of the week succeeding such week for which such rate
information is not published. If for any reason the Administrative
Agent shall have determined (which determination shall be conclusive
absent manifest error) that it is unable to ascertain the Base CD Rate
or Federal Funds
Effective Rate, or both, for any reason, including, without limitation,
the inability or failure of the Administrative Agent to obtain
sufficient bids or publications in accordance with the terms hereof,
the Alternate Base Rate shall be determined without regard to clause
(b) or (c), or both, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to
a change in the Average Weekly Three-Month Secondary CD Rate shall be
effective on the effective date of such change in the CD Rate. Any
change in the Alternate Base Rate due to a change in the Federal Funds
Effective Rate shall be effective on the effective date of such change
in the Federal Funds Effective Rate.
"APPLICABLE LAW" shall mean all provisions of statutes, rules,
regulations and orders of governmental bodies or regulatory agencies
applicable to a Person, and all orders and decrees of all courts and
arbitrators in proceedings or actions in which the Person in question
is a party.
"ASSESSMENT RATE" shall mean, for any day, the net annual
assessment rate (rounded upwards, if necessary, to the next higher
Basis Point) as most recently estimated by the Administrative Agent for
determining the then current annual assessment payable by the
Administrative Agent to the Federal Deposit Insurance Corporation (or
any successor) for insurance by such Corporation (or such successor) of
time deposits made in dollars at the Administrative Agent's domestic
offices.
"ASSIGNMENT AND ACCEPTANCE" shall mean an agreement in the
form of Exhibit C hereto, executed by the assignor, assignee and the
other parties as contemplated thereby.
"AVIS" shall mean Avis Group Holdings, Inc., a Delaware
corporation.
"AVIS DEBT DOCUMENTS" shall mean the instruments and
agreements pursuant to which any indebtedness of Avis or any of its
Subsidiaries has been issued, is outstanding or permitted to exist.
"AVIS MERGER" shall mean the transaction pursuant to the
Agreement and Plan of Merger, dated as of November 11, 2000 (the
"MERGER AGREEMENT"), by and among Avis, the Borrower, PHH and Avis
Acquisition Corp., a Delaware corporation and an indirect wholly-owned
subsidiary of the Borrower ("MERGER SUB") in which Merger Sub will
merge with and into Avis and each outstanding share of class A common
stock, par value $.01 per share of Avis (the "COMMON STOCK"), other
than shares of Common Stock held by any subsidiary of Avis, held in
Avis' treasury, held by Cendant or any subsidiary of Cendant or held by
stockholders who perfect their appraisal rights under Delaware law,
will be converted into the right to receive $33.00 in cash.
"AVIS SECURITIZATION ENTITY" means a Subsidiary of Avis (or
another Person in which Avis or any of its Subsidiaries makes an
investment or to which Avis or any of its Subsidiaries transfers
Permitted Vehicle Collateral or an interest in Permitted Vehicle
Collateral) which engages in no activities other than in connection
with the ownership, leasing, operation and financing of Eligible
Vehicles and other Permitted Vehicle
Collateral and which is designated by the board of directors of Avis as
a Securitization Entity and as to which:
(1) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which:
(a) is guaranteed by the Borrower or any of
its Subsidiaries (excluding guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant
to Standard Securitization Undertakings);
(b) is recourse to or obligates the Borrower
or any of its Subsidiaries in any way other than pursuant to
Standard Securitization Undertakings; or
(c) subjects any property or asset of the
Borrower or any of its Subsidiaries (other than a
Securitization Entity), directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant
to Standard Securitization Undertakings;
(2) neither the Borrower nor any of its Subsidiaries
has any material contract, agreement, arrangement or
understanding (except in connection with a Purchase Money Note
or Qualified Securitization Transaction) other than on terms
no less favorable to the Borrower or such Subsidiary of the
Borrower than those that might be obtained at the time from
Persons that are not Affiliates of the Borrower, other than
fees payable in the ordinary course of business in connection
with servicing Permitted Vehicle Collateral; and
(3) neither the Borrower nor any of its Subsidiaries
has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain
levels of operating results.
"AVIS SECURITIZATION INDEBTEDNESS" means (i) Indebtedness that
finances or refinances Eligible Vehicles (but only to the extent
actually used to finance or refinance Eligible Vehicles) and (ii)
Indebtedness secured by Permitted Vehicle Collateral.
"BASIS POINT" shall mean 1/100th of 1%.
"BOARD" shall mean the Board of Governors of the Federal
Reserve System.
"BORROWING" shall mean a group of Loans of a single Interest
Rate Type made by the Lenders (or in the case of a Competitive
Borrowing, by the Lender or Lenders whose Competitive Bids have been
accepted pursuant to Section 2.4) on a single date and as to which a
single Interest Period is in effect.
"BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or other day on which banks in the State of New York are
permitted to close; PROVIDED, HOWEVER, that when used in connection
with a LIBOR Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in Dollar deposits on
the London Interbank Market.
"CAPITAL LEASE" shall mean as applied to any Person, any lease
of any property (whether real, personal or mixed) by that Person as
lessee which, in accordance with GAAP, is or should be accounted for as
a capital lease on the balance sheet of that Person.
"CASH COLLATERAL ACCOUNT" shall mean a collateral account
established with the Administrative Agent, in the name of the
Administrative Agent and under its sole dominion and control, into
which the Borrower shall from time to time deposit Dollars pursuant to
the express provisions of this Agreement requiring such deposit.
"CASH EQUIVALENTS" shall mean any of the following, to the
extent acquired for investment and not with a view to achieving trading
profits: (i) obligations fully backed by the full faith and credit of
the United States of America maturing not in excess of twelve months
from the date of acquisition, (ii) commercial paper maturing not in
excess of twelve months from the date of acquisition and rated "P-1" by
▇▇▇▇▇'▇ or "A-1" by S&P on the date of such acquisition, (iii) the
following obligations of any Lender or any domestic commercial bank
having capital and surplus in excess of $500,000,000, which has, or the
holding company of which has, a commercial paper rating meeting the
requirements specified in clause (ii) above: (a) time deposits,
certificates of deposit and acceptances maturing not in excess of
twelve months from the date of acquisition, or (b) repurchase
obligations with a term of not more than thirty (30) days for
underlying securities of the type referred to in clause (i) above, (iv)
money market funds that invest exclusively in interest bearing,
short-term money market instruments: (a) having an average remaining
maturity of not more than twelve months and (b)(1) rated at least "P-1"
by ▇▇▇▇▇'▇ or "A-1" by S&P or (2) which are issued or directly and
fully guaranteed or insured by the United States government or any
agency or instrumentality thereof, and (v) municipal securities: (a)
for which the pricing period in effect is not more than twelve months
long and (b) rated at least "P-1" by ▇▇▇▇▇'▇ or "A-1" by S&P.
"CHANGE IN CONTROL" shall mean (i) the acquisition by any
Person or group (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the Closing Date), directly or indirectly, beneficially
or of record, of ownership or control of in excess of 30% of the voting
common stock of the Borrower on a fully diluted basis at any time or
(ii) if at any time, individuals who at the Closing Date constituted
the Board of Directors of the Borrower (together with any new directors
whose election by such Board of Directors or whose nomination for
election by the shareholders of the Borrower, as the case may be, was
approved by a vote of the majority of the directors then still in
office who were either directors at the Closing Date or whose election
or a nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Borrower then in office.
"CHASE" shall mean The Chase Manhattan Bank, a New York
banking corporation.
"CLOSING DATE" shall mean the date on which the conditions
precedent to the effectiveness of this Agreement as set forth in
Section 4.1 have been satisfied or waived, which shall in no event be
later than October 5, 2001.
"CODE" shall mean the Internal Revenue Code of 1986 and the
rules and regulations issued thereunder, as now and hereafter in
effect, or any successor provision thereto.
"COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender as set forth (i) on Schedule 2.1 hereto
and/or (ii) any applicable Assignment and Acceptance to which it may be
a party, as the case may be, as such Lender's Commitment may be
permanently terminated, reduced or increased from time to time pursuant
to Section 2.12 or Article 7. The Commitments shall automatically and
permanently terminate on the earlier of (a) the Maturity Date or (b)
the date of termination in whole pursuant to Section 2.12 or Article 7.
"COMMITMENT PERCENTAGE" shall mean, as to any Lender at any
time, the percentage which such Lender's Commitment then constitutes of
the Total Commitment or, at any time after the Commitments shall have
expired or terminated, the percentage which the aggregate principal
amount of such Lender's Loans and L/C Exposure then outstanding
constitutes of the aggregate principal amount of the Loans and L/C
Exposure then outstanding.
"COMPETITIVE BID" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.4 in the form of Exhibit E-3.
"COMPETITIVE BID ACCEPT/REJECT LETTER" shall mean a
notification made by the Borrower pursuant to Section 2.4(d) in the
form of Exhibit E-4.
"COMPETITIVE BID RATE" shall mean, as to any Competitive Bid
made by a Lender pursuant to Section 2.4(b), (a) in the case of a LIBOR
Loan, the Margin and (b) in the case of a Fixed Rate Loan, the fixed
rate of interest offered by the Lender making such Competitive Bid.
"COMPETITIVE BID REQUEST" shall mean a request made pursuant
to Section 2.4 in the form of Exhibit E-1.
"COMPETITIVE BORROWING" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or
Lenders whose Competitive Bids for such Borrowing have been accepted by
the Borrower under the bidding procedure described in Section 2.4.
"COMPETITIVE LOAN" shall mean a Loan from a Lender to the
Borrower pursuant to the bidding procedure described in Section 2.4.
Each Competitive Loan shall be a LIBOR Competitive Loan or a Fixed Rate
Loan.
"COMPETITIVE NOTE" shall have the meaning assigned to such
term in Section 2.8.
"CONSOLIDATED ASSETS" shall mean, at any date of
determination, the total assets of the Borrower and its Consolidated
Subsidiaries determined in accordance with GAAP.
"CONSOLIDATED EBITDA" shall mean, without duplication, for any
period for which such amount is being determined, the sum of the
amounts for such period of (i) Consolidated Net Income, (ii) provision
for taxes based on income, (iii) depreciation expense (excluding any
such expense attributable to depreciation of Eligible Vehicles which
are included in a Qualified Securitization Transaction), (iv)
Consolidated Interest Expense, (v) amortization expense, (vi) other
non-cash items reducing Consolidated Net Income, plus (vii) any cash
contributions by the Borrower and its Subsidiaries during such period
into the Settlement Trust minus (viii) any cash expenditures during
such period to the extent such cash expenditures (x) did not reduce
Consolidated Net Income for such period and (y) were applied against
reserves that constituted non-cash items which reduced Consolidated Net
Income during prior periods, all as determined on a consolidated basis
for the Borrower and its Consolidated Subsidiaries in accordance with
GAAP. Notwithstanding the foregoing, in calculating Consolidated EBITDA
pro forma effect shall be given to each acquisition of a Subsidiary or
any entity acquired in a merger in any relevant period for which the
covenants set forth in Sections 6.7 and 6.8 are being calculated as if
such acquisition had been made on the first day of such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean for any period for
which such amount is being determined, total interest expense paid or
payable in cash (including that properly attributable to Capital Leases
in accordance with GAAP but excluding in any event all capitalized
interest and amortization of debt discount and debt issuance costs) of
the Borrower and its Consolidated Subsidiaries on a consolidated basis
including, without limitation, all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net cash costs (or minus net profits) under
Interest Rate Protection Agreements MINUS, without duplication, any
interest income of the Borrower and its Consolidated Subsidiaries on a
consolidated basis during such period. Notwithstanding the foregoing,
interest expense on any Avis Securitization Indebtedness or any
Timeshare Loan Indebtedness, shall be deemed not to be included in
Consolidated Interest Expense.
"CONSOLIDATED NET INCOME" shall mean, for any period for which
such amount is being determined, the net income (or loss) of the
Borrower and its Consolidated Subsidiaries during such period
determined on a consolidated basis for such period taken as a single
accounting period in accordance with GAAP, provided that there shall be
excluded (i) income (loss) of any Person (other than a Consolidated
Subsidiary of the Borrower) in which the Borrower or any of its
Consolidated Subsidiaries has any equity investment or comparable
interest, except to the extent of the amount of dividends or
other distributions actually paid to the Borrower or its Consolidated
Subsidiaries by such Person during such period, (ii) the income of any
Consolidated Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions by that
Consolidated Subsidiary of the income is not at the time permitted by
operation of the terms of its charter, or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that Consolidated Subsidiary, (iii) any extraordinary
after-tax gains and (iv) any extraordinary or unusual pretax losses.
"CONSOLIDATED NET WORTH" shall mean, as of any date of
determination, all items which in conformity with GAAP would be
included under shareholders' equity on a consolidated balance sheet of
the Borrower and its Subsidiaries at such date plus mandatorily
redeemable preferred securities issued by Subsidiaries of the Borrower
(other than PHH and its Subsidiaries) plus 80% of the aggregate amount
outstanding under the Upper DECS which is, at the date as of which
Consolidated Net Worth is to be determined, includable as a liability
on a consolidated balance sheet of the Borrower and its Subsidiaries.
Consolidated Net Worth shall include the Borrower's equity interest in
PHH.
"CONSOLIDATED SUBSIDIARIES" shall mean all Subsidiaries of the
Borrower that are required to be consolidated with the Borrower for
financial reporting purposes in accordance with GAAP.
"CONSOLIDATED TOTAL INDEBTEDNESS" shall mean (i) the total
amount of Indebtedness of the Borrower and its Consolidated
Subsidiaries determined on a consolidated basis using GAAP principles
of consolidation, which is, at the dates as of which Consolidated Total
Indebtedness is to be determined, includable as liabilities on a
consolidated balance sheet of the Borrower and its Subsidiaries, plus
(ii) without duplication of any items included in Indebtedness pursuant
to the foregoing clause (i), Indebtedness of others which the Borrower
or any of its Consolidated Subsidiaries has directly or indirectly
assumed or guaranteed (but only to the extent so assumed or guaranteed)
or otherwise provided credit support therefor, including without
limitation, Guaranties; PROVIDED that, for purposes of this definition,
(a) any Avis Securitization Indebtedness shall not be deemed
Indebtedness, (b) any Timeshare Loan Indebtedness shall not be deemed
Indebtedness and (c) only 20% of the aggregate amount outstanding under
the Upper DECS which is, at the dates as of which Consolidated Total
Indebtedness is to be determined, includable as a liability on a
consolidated balance sheet of the Borrower and its Subsidiaries, shall
be deemed Indebtedness. In addition, for purposes of this definition,
the amount of Indebtedness at any time shall be reduced (but not to
less than zero) by the amount of Excess Cash.
"DEBT TO CAPITALIZATION RATIO" shall mean at any time the
ratio of (x) Consolidated Total Indebtedness to (y) the sum of (i)
Consolidated Total Indebtedness plus (ii) Consolidated Net Worth.
"DEFAULT" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"DOLLARS" and "$" shall mean lawful money of the United States
of America.
"ELIGIBLE LEASES" means open-end and closed-end automobile
fleet leases originated by or on behalf of Avis or any of its
Subsidiaries which are of a type customarily eligible for inclusion in
a Qualified Securitization Transaction.
"ELIGIBLE VEHICLES" shall mean the motor vehicle inventory of
Avis or any of its Subsidiaries, in each case, whether held for sale,
lease or rental purposes which are of a type customarily eligible for
inclusion in a Qualified Securitization Transaction.
"ENVIRONMENTAL LAWS" shall mean any and all federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees or requirements of any Governmental
Authority regulating, relating to or imposing liability or standards of
conduct concerning, any Hazardous Material or environmental protection
or health and safety, as now or may at any time hereafter be in effect,
including without limitation, the Clean Water Act also known as the
Federal Water Pollution Control Act ("FWPCA") 33 ▇.▇.▇.▇▇. 1251 ET
SEQ., the Clean Air Act ("CAA"), 42 ▇.▇.▇.▇▇.▇▇. 7401 ET SEQ., the
Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7
▇.▇.▇.▇▇.▇▇. 136 ET SEQ., the Surface Mining Control and Reclamation
Act ("SMCRA"), 30 ▇.▇.▇.▇▇.▇▇. 1201 ET SEQ., the Comprehensive
Environmental Response, CompensatiON and Liability Act ("CERCLA"), 42
▇.▇.▇.▇▇. 9601 ET SEQ., the Superfund Amendment and Reauthorization Act
of 1986 ("▇▇▇▇"), Public Law 99-499, 100 Stat. 1613, the Emergency
Planning and Community Right to Know Act ("ECPCRKA"), 42 ▇.▇.▇.▇▇.
11001 ET SEQ., the Resource Conservation and Recovery Act ("RCRA"), 42
▇.▇.▇.▇▇. 6901 ET SEQ., the Occupational Safety and Health Act as
amended ("OSHA"), 29 ▇.▇.▇.▇▇. 655 andss. 657, together, in each case,
with any amendment thereto, and the regulations adopted and
publications promulgated thereunder and all substitutions thereof.
"ENVIRONMENTAL LIABILITIES" shall mean any liability,
contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or
based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as such Act may be amended, and the regulations promulgated
thereunder.
"EXCESS CASH" shall mean all cash and cash equivalents of the
Borrower and its Consolidated Subsidiaries at such time determined on a
consolidated basis in accordance with GAAP in excess of $25,000,000.
"EXISTING TERM LOAN AGREEMENT" shall have the meaning assigned
to such term in the Introductory Statement hereof.
"EXTENSIONS OF CREDIT" shall mean the making of a Loan or the
issuance of a Letter of Credit.
"EVENT OF DEFAULT" shall have the meaning given such term in
Article 7 hereof.
"FACILITY FEE" shall have the meaning given such term in
Section 2.7 hereof.
"FAIRFIELD" shall mean Fairfield Resorts Inc., a Delaware
corporation (formerly Fairfield Communities, Inc.).
"FAIRFIELD DEBT DOCUMENTS" shall mean the instruments and
agreements pursuant to which any indebtedness of Fairfield or any of
its Subsidiaries has been issued, is outstanding or permitted to exist.
"FAIRFIELD MERGER" shall mean the transaction pursuant to the
Agreement and Plan of Merger, dated as of November 1, 2000, by and
among the Borrower, Fairfield and Grand Slam Acquisition Corp., a
Delaware corporation and subsidiary of the Borrower.
"FIXED RATE BORROWING" shall mean a Borrowing comprised of
Fixed Rate Loans.
"FIXED RATE LOAN" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of
a decimal to no more than four decimal places) specified by the Lender
making such Loan in its Competitive Bid.
"FLEET RECEIVABLES" means all receivables generated by Avis or
any of its Subsidiaries from obligors under fleet maintenance
contracts, fleet management contracts and fuel card contracts and any
other service contracts billed together with Eligible Leases, which are
of a type customarily eligible for inclusion in a Qualified
Securitization Transaction.
"FUNDAMENTAL DOCUMENTS" shall mean this Agreement, any
Revolving Credit Notes, any Competitive Notes and any other ancillary
documentation which is required to be, or is otherwise, executed by the
Borrower and delivered to the Administrative Agent in connection with
this Agreement.
"GAAP" shall mean generally accepted accounting principles
consistently applied (except for accounting changes in response to FASB
releases or other authoritative pronouncements) provided, however, that
all calculations made pursuant to Sections 6.7 and 6.8 and the related
definitions shall have been computed based on such generally accepted
accounting principles as are in effect on the Closing Date.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state,
municipal or other governmental department, commission, board, bureau,
agency or instrumentality, or any court, in each case whether of the
United States or foreign.
"GRANTING LENDER" shall have the meaning assigned to such term
in Section 9.3(k).
"GUARANTY" shall mean, as to any Person, any direct or
indirect obligation of such Person guaranteeing or intended to
guarantee any Indebtedness, Capital Lease, dividend or other monetary
obligation ("primary obligation") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of
the primary obligor, (c) to purchase property, securities or services,
in each case, primarily for the purpose of assuring the owner of any
such primary obligation of the repayment of such primary obligation or
(d) as a general partner of a partnership or a joint venturer of a
joint venture in respect of indebtedness of such partnership or such
joint venture which is treated as a general partnership for purposes of
Applicable Law. The amount of any Guaranty shall be deemed to be an
amount equal to the stated or determinable amount (or portion thereof)
of the primary obligation in respect of which such Guaranty is made or,
if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder); PROVIDED, HOWEVER, that the amount of any Guaranty
shall be limited to the extent necessary so that such amount does not
exceed the value of the assets of such Person (as reflected on a
consolidated balance sheet of such Person prepared in accordance with
GAAP) to which any creditor or beneficiary of such Guaranty would have
recourse. Notwithstanding the foregoing definition, the term "Guaranty"
shall not include any direct or indirect obligation of a Person as a
general partner of a general partnership or a joint venturer of a joint
venture in respect of Indebtedness of such general partnership or joint
venture, to the extent such Indebtedness is contractually non-recourse
to the assets of such Person as a general partner or joint venturer
(other than assets comprising the capital of such general partnership
or joint venture).
"HAZARDOUS MATERIALS" shall mean any flammable materials,
explosives, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, or similar materials defined as
such in any Environmental Law.
"HOTEL SUBSIDIARY" shall mean any Subsidiary of the Borrower
which (a) is engaged as its principal activity, in the hotel
franchising business or related activities or (b) owns or licenses from
a Person other than the Borrower or another Subsidiary, any proprietary
right related to the hotel franchising business.
"INDEBTEDNESS" shall mean (without double counting), at any
time and with respect to any Person, (i) indebtedness of such Person
for borrowed money (whether by loan or the issuance and sale of debt
securities) or for the deferred purchase price of property or services
purchased (other than amounts constituting trade payables arising in
the ordinary course and payable within 180 days); (ii) indebtedness of
others which such Person has directly or indirectly assumed or
guaranteed (but only to the extent so
assumed or guaranteed) or otherwise provided credit support therefor,
including without limitation, Guaranties; (iii) indebtedness of others
secured by a Lien on assets of such Person, whether or not such Person
shall have assumed such indebtedness (but only to the extent of the
fair market value of such assets); (iv) obligations of such Person in
respect of letters of credit, acceptance facilities, or drafts or
similar instruments issued or accepted by banks and other financial
institutions for the account of such Person (other than trade payables
arising in the ordinary course and payable within 180 days); or (v)
obligations of such Person under Capital Leases.
"INTEREST COVERAGE RATIO" shall mean, for each period for
which it is to be determined, the ratio of (i) Consolidated EBITDA to
(ii) Consolidated Interest Expense.
"INTEREST PAYMENT DATE" shall mean, with respect to any
Borrowing, the last day of the Interest Period applicable thereto and,
in the case of a LIBOR Borrowing with an Interest Period of more than
three months' duration or a Fixed Rate Borrowing with an Interest
Period of more than 90 days' duration, each day that would have been an
Interest Payment Date had successive Interest Periods of three months,
duration or 90 days' duration, as the case may be, been applicable to
such Borrowing, and, in addition, the date of any refinancing or
conversion of a Borrowing with, or to, a Borrowing of a different
Interest Rate Type.
"INTEREST PERIOD" shall mean (a) as to any LIBOR Borrowing,
the period commencing on the date of such Borrowing, and ending on the
numerically corresponding day (or, if there is no numerically
corresponding day or if the date of the LIBOR Borrowing is the last day
of any month, on the last day) in the calendar month that is 1, 2, 3, 6
or, subject to each Lender's approval, 12 months thereafter, as the
Borrower may elect, (b) as to any ABR Borrowing, the period commencing
on the date of such Borrowing and ending on the earliest of (i) the
next succeeding March 31, June 30, September 30 or December 31, (ii)
the Maturity Date and (iii) the date such Borrowing is refinanced with
a Borrowing of a different Interest Rate Type in accordance with
Section 2.6 or is prepaid in accordance with Section 2.13 and (c) as to
any Fixed Rate Borrowing, the period commencing on the date of such
Borrowing and ending on the date specified in the Competitive Bids in
which the offer to make the Fixed Rate Loans comprising such Borrowing
were extended, which shall not be earlier than one day after the date
of such Borrowing or later than 360 days after the date of such
Borrowing; provided, HOWEVER, that (i) if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of
LIBOR Loans only, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (ii) no Interest Period may be
selected which would extend beyond the Maturity Date. Interest shall
accrue from, and including, the first day of an Interest Period to, but
excluding, the last day of such Interest Period.
"INTEREST RATE PROTECTION AGREEMENT" shall mean any interest
rate swap agreement, interest rate cap agreement or other similar
financial agreement or arrangement.
"INTEREST RATE TYPE" when used in respect of any Loan or
Borrowing, shall refer to the Rate by reference to which interest on
such Loan or on the Loans comprising such Borrowing is determined. For
purposes hereof, "Rate" shall include LIBOR, the Alternate Base Rate
and the Fixed Rate.
"ISSUING LENDER" shall mean Chase or its Affiliates, and/or
such other of the Lenders as may be designated in writing by the
Borrower and which agree in writing to act as such in accordance with
the terms hereof.
"L/C EXPOSURE" shall mean, at any time, the amount expressed
in Dollars of the aggregate face amount of all drafts which may then or
thereafter be presented by beneficiaries under all Letters of Credit
then outstanding plus (without duplication) the face amount of all
drafts which have been presented under Letters of Credit but have not
yet been paid or have been paid but not reimbursed.
"LENDER and "LENDERS" shall mean the financial institutions
whose names appear at the foot hereof and any assignee of a Lender
pursuant to Section 9.3(b).
"LENDING OFFICE" shall mean, with respect to any of the
Lenders, the branch or branches (or affiliate or affiliates) from which
any such Lender's LIBOR Loans, Fixed Rate Loans or ABR Loans, as the
case may be, are made or maintained and for the account of which all
payments of principal of, and interest on, such Lender's LIBOR Loans,
Fixed Rate Loans or ABR Loans are made, as notified to the
Administrative Agent from time to time.
"LETTER OF CREDIT" shall mean any Letter of Credit issued
pursuant to Section 2.23.
"LIBOR" shall mean, with respect to any LIBOR Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next Basis Point) equal to the rate at which Dollar
deposits approximately equal in principal amount to (a) in the case of
a Revolving Credit Borrowing, Chase's portion of such LIBOR Borrowing
and (b) in the case of a Competitive Borrowing, a principal amount that
would have been Chase's portion of such Competitive Borrowing had such
Competitive Borrowing been a Revolving Credit Borrowing, and for a
maturity comparable to such Interest Period, are offered to the
principal London office of Chase in immediately available funds in the
London Interbank Market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"LIBOR BORROWING" shall mean a Borrowing comprised of LIBOR
Loans.
"LIBOR COMPETITIVE LOAN" shall mean any Competitive Loan
bearing interest at a rate determined by reference to LIBOR in
accordance with the provisions of Article 2.
"LIBOR LOAN" shall mean any LIBOR Competitive Loan or LIBOR
Revolving Credit Loan.
"LIBOR REVOLVING CREDIT LOAN" shall mean any Revolving Credit
Loan bearing interest at a rate determined by reference to LIBOR in
accordance with the provisions of Article 2.
"LIBOR SPREAD" shall mean, at any date or any period of
determination, the LIBOR Spread that would be in effect on such date or
during such period pursuant to the chart set forth in Section 2.22
based on the rating of the Borrower's senior unsecured long-term debt.
"LIEN" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind whatsoever (including any
conditional sale or other title retention agreement, any lease in the
nature thereof or agreement to give any financing statement under the
Uniform Commercial Code of any jurisdiction).
"LOAN" shall mean a Competitive Loan or a Revolving Credit
Loan, whether made as a LIBOR Loan, an ABR Loan or a Fixed Rate Loan,
as permitted hereby.
"MARGIN" shall mean, as to any LIBOR Competitive Loan, the
margin (expressed as a percentage rate per annum in the form of a
decimal to four decimal places) to be added to, or subtracted from,
LIBOR in order to determine the interest rate applicable to such Loan,
as specified in the Competitive Bid relating to such Loan.
"MARGIN STOCK" shall be as defined in Regulation U of the
Board.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect
on the business, assets, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries taken as a whole (it is
understood that, for purposes of this definition, the accounting
irregularities and errors disclosed in the Borrower's report on Form
10-K for the period ending December 31, 2000 filed with the Securities
and Exchange Commission and the class action lawsuits disclosed therein
and other class action lawsuits arising as a result of the accounting
irregularities and errors disclosed therein do not constitute a
Material Adverse Effect).
"MATERIAL SUBSIDIARY" shall mean (i) any Subsidiary of the
Borrower which, together with its Subsidiaries at the time of
determination hold, or, solely with respect to Sections 7(f) and 7(g),
any group of Subsidiaries which, if merged into each other at the time
of determination would hold, assets constituting 10% or more of
Consolidated Assets or accounts for 10% or more of Consolidated EBITDA
for the Rolling Period immediately preceding the date of determination
or (ii) any Subsidiary of the Borrower which holds material trademarks,
tradenames or other intellectual property rights.
"MATURITY DATE" shall mean February 22, 2004.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service Inc.
"MULTIEMPLOYER PLAN" shall mean a plan described in Section
3(37) of ERISA.
"NOTES" shall mean the Competitive Notes and the Revolving
Credit Notes.
"OBLIGATIONS" shall mean the obligation of the Borrower to
make due and punctual payment of principal of, and interest on, the
Loans, the Facility Fee, the Utilization Fee, reimbursement obligations
in respect of Letters of Credit and all other monetary obligations of
the Borrower to the Administrative Agent, any Issuing Lender or any
Lender under this Agreement, the Notes or the Fundamental Documents or
with respect to any Interest Rate Protection Agreements entered into
between the Borrower and any Lender.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any successor thereto.
"PERMITTED ENCUMBRANCES" shall mean Liens permitted under
Section 6.5 hereof.
"PERMITTED TIMESHARE COLLATERAL" means, as of any date of
determination:
(1) the collateral securing Timeshare Loan
Indebtedness and consisting of Timeshare Loans or a beneficial
interest therein and the proceeds thereof;
(2) Timeshare Loans or a beneficial interest therein,
transferred to a Securitization Entity in connection with a
Qualified Securitization Transaction and the proceeds thereof;
(3) any related assets which are customarily
transferred, or in respect of which security interests are
customarily granted, in connection with asset securitizations
involving Timeshare Loans; and
(4) any proceeds of any of the foregoing.
"PERMITTED VEHICLE COLLATERAL" means, as of any date of
determination:
(1) the collateral securing Avis Securitization
Indebtedness and consisting of Eligible Vehicles and
receivables, or a beneficial interest therein, arising from
the disposition of Eligible Vehicles and the proceeds thereof;
(2) Eligible Leases and Fleet Receivables, or a
beneficial interest therein, transferred to a Securitization
Entity in connection with a Qualified Securitization
Transaction and the proceeds thereof;
(3) any related assets which are customarily
transferred, or in respect of which security interests are
customarily granted, in connection with asset securitizations
involving Eligible Vehicles or Eligible Leases; and
(4) any proceeds of any of the foregoing.
"PERSON" shall mean any natural person, corporation, division
of a corporation, partnership, trust, joint venture, association,
company, estate, unincorporated organization or government or any
agency or political subdivision thereof.
"PHH" shall mean PHH Corporation, a Maryland corporation.
"PLAN" shall mean an employee pension benefit plan described
in Section 3(2) of ERISA, other than a Multiemployer Plan.
"PRO FORMA BASIS" shall mean in connection with any
transaction for which a determination on a Pro Forma Basis is required
to be made hereunder, that such determination shall be made (i) after
giving effect to any issuance of Indebtedness, any acquisition, any
disposition or any other transaction (as applicable) and (ii) assuming
that the issuance of Indebtedness, acquisition, disposition or other
transaction and, if applicable, the application of any proceeds
therefrom, occurred at the beginning of the most recent Rolling Period
ending at least thirty (30) days prior to the date on which such
issuance of Indebtedness, acquisition, disposition or other transaction
occurred.
"PURCHASE MONEY NOTE" means a promissory note of a
Securitization Entity evidencing a line of credit, which may be
irrevocable, from Avis or any of its Subsidiaries or a Timeshare
Subsidiary to a Securitization Entity or representing the deferred
purchase price for the purchase of assets by such Securitization Entity
from Avis or any of its Subsidiaries or Timeshare Subsidiary, as the
case may be, in each case in connection with a Qualified Securitization
Transaction, which note is repayable from cash available to the
Securitization Entity, other than amounts required to be established as
reserves pursuant to agreements, amounts paid to investors in respect
of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of Eligible Vehicles,
Eligible Leases, Fleet Receivables or a beneficial interest therein, in
the case of an Avis Securitization Entity, or a Timeshare Loan, in the
case of a Timeshare Securitization Entity.
"QUALIFIED SECURITIZATION TRANSACTION" means (x) any
transaction or series of transactions that may be entered into by Avis
or any of its Subsidiaries pursuant to which Avis or any of its
Subsidiaries may sell, convey or otherwise transfer to (1) a
Securitization Entity (in the case of a transfer by Avis or any of its
Subsidiaries) or (2) any other Person (in the case of a transfer by a
Securitization Entity), or may grant a security interest in, any
Permitted Vehicle Collateral (whether now existing or arising in the
future) of Avis or any of its Subsidiaries, and any assets related
thereto including, without limitation, the proceeds of such Permitted
Vehicle Collateral or (y) any transaction or series of transactions
that may be entered into by any Timeshare Subsidiary pursuant to which
any Timeshare Subsidiary may sell, convey or otherwise transfer to (1)
a Securitization Entity (in the case of a transfer by any Timeshare
Subsidiary) or (2) any other Person (in the case of a transfer by a
Securitization Entity), or may grant a security interest in, any
Permitted Timeshare Collateral (whether now existing or arising in the
future) of any Timeshare Subsidiary, and any assets related thereto
including, without limitation, the proceeds of such Permitted Timeshare
Collateral.
"REPORTABLE EVENT" shall mean any reportable event as defined
in Section 4043(b) of ERISA, other than a reportable event as to which
provision for 30-day notice to the PBGC would be waived under
applicable regulations had the regulations in effect on the Closing
Date been in effect on the date of occurrence of such reportable event.
"REQUIRED LENDERS" shall mean at any time, Lenders holding
Commitments representing 51% of the Total Commitment, except that (i)
for purposes of determining the Lenders entitled to declare the
principal of and the interest on the Loans and the Notes and all other
amounts payable hereunder or thereunder to be forthwith due and payable
pursuant to Article 7 and (ii) at all times after the termination of
the Total Commitment in its entirety, "Required Lenders" shall mean
Lenders holding 51% of the aggregate principal amount of the Loans and
L/C Exposure at the time outstanding.
"REVOLVING CREDIT BORROWING" shall mean a Borrowing consisting
of simultaneous Revolving Credit Loans from each of the Lenders.
"REVOLVING CREDIT BORROWING REQUEST" shall mean a request made
pursuant to Section 2.5 in the form of Exhibit F.
"REVOLVING CREDIT LOANS" shall mean the Loans made by the
Lenders to the Borrower pursuant to a notice given by the Borrower
under Section 2.5. Each Revolving Credit Loan shall be a LIBOR
Revolving Credit Loan or an ABR Loan.
"REVOLVING CREDIT NOTE" shall have the meaning assigned to
such term in Section 2.8.
"ROLLING PERIOD" shall mean with respect to any fiscal
quarter, such fiscal quarter and the three immediately preceding fiscal
quarters considered as a single accounting period.
"SECURITIZATION ENTITY" means an Avis Securitization Entity or
a Timeshare Securitization Entity.
"SETTLEMENT" shall mean the settlement of a consolidated class
action lawsuit pending against the Borrower styled In re
Cendant
Corporation Litigation, No. 98-CV-1664 (WHW)(D.N.J.).
"SETTLEMENT AGREEMENT" shall mean the Stipulation of
Settlement with the Borrower and Certain Other Defendants, executed
March 17, 2000.
"SETTLEMENT TRUST" shall mean the escrow account established
pursuant to the Settlement Agreement.
"S&P" shall mean Standard & Poor's Ratings Services.
"SPC" shall have the meaning assigned to such term in Section
9.3(k).
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, guaranties, covenants and indemnities entered into by Avis
or any of its Subsidiaries or any Timeshare Subsidiary which are
reasonably customary in securitizations.
"STATUTORY RESERVES" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator
of which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board and any other
banking authority to which the Administrative Agent or any Lender is
subject, for Eurocurrency Liabilities (as defined in Regulation D).
Such reserve percentages shall include those imposed under Regulation
D. LIBOR Loans shall be deemed to constitute Eurocurrency Liabilities
and as such shall be deemed to be subject to such reserve requirements
without benefit of or credit for proration, exceptions or offsets which
may be available from time to time to any Lender under Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"SUBSIDIARY" shall mean with respect to any Person, any
corporation, association, joint venture, partnership or other business
entity (whether now existing or hereafter organized) of which at least
a majority of the voting stock or other ownership interests having
ordinary voting power for the election of directors (or the equivalent)
is, at the time as of which any determination is being made, owned or
controlled by such Person or one or more subsidiaries of such Person or
by such Person and one or more subsidiaries of such Person; PROVIDED
that for purposes of Sections 6.1, 6.5, 6.6, 6.7 and 6.8 hereof, PHH
and its Subsidiaries shall be deemed not to be Subsidiaries of the
Borrower except that (a) Consolidated Net Worth shall be calculated in
accordance with the definition thereof and (b) in calculating
Consolidated EBITDA for any fiscal quarter the amount of any cash
dividends or any other cash distributions actually paid by PHH or any
Subsidiary of PHH to the Borrower and its Subsidiaries (excluding the
Subsidiaries of PHH) (i) during such period and (ii) up to the time of
the delivery of the certificate pursuant to Section 5.1(c) hereof
related to such period shall be included in such calculation. Any such
cash dividends and distributions received from PHH and its Subsidiaries
in one period and included in calculating Consolidated EBITDA for any
prior period shall not be included in calculating Consolidated EBITDA
for any fiscal quarter ending on or after the first anniversary of the
date such dividends and distributions are received.
"TIMESHARE DEBT DOCUMENTS" shall mean the instruments and
agreements pursuant to which any indebtedness of any Timeshare
Subsidiary has been issued, is outstanding or is permitted to exist.
"TIMESHARE LOAN INDEBTEDNESS" shall mean any Indebtedness
secured by or payable from Permitted Timeshare Collateral.
"TIMESHARE LOAN" shall mean any loan made to finance the
acquisition of a timeshare, including a timeshare that has not yet been
completed, any installment contract
for the purchase of a timeshare, or any other arrangement in the nature
of a financing of the purchase of a timeshare, and all security
therefor and proceeds thereof.
"TIMESHARE PROPERTY" shall mean any property used or intended
to be used for development, in whole or in part, of a timeshare regime,
including but not limited to real property, improvements thereon, any
condominium, any portion of such a development, any unit or units
subjected to a timeshare regime, any fixed week intervals, any
undivided interests, any notional "points" afforded to owners of
timeshares, any common areas, and any other form of ownership of, or
entitlement to occupy real estate that forms a part of, or is subject
to, a timeshare regime under applicable state law.
"TIMESHARE SECURITIZATION ENTITY" means in the case of a
Subsidiary of a Timeshare Subsidiary (or another Person in which a
Timeshare Subsidiary makes an investment or to which any Timeshare
Subsidiary transfers Permitted Timeshare Collateral or an interest in
Permitted Timeshare Collateral) which engages in no activities other
than in connection with the ownership, leasing, operation and financing
of Timeshare Properties and other Permitted Timeshare Collateral and
which is designated by the board of directors of a Timeshare Subsidiary
as a Securitization Entity and as to which:
(1) no portion of the Indebtedness or any other
obligations (contingent or otherwise) of which:
(a) is guaranteed by the Borrower or any of
its Subsidiaries (excluding guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant
to Standard Securitization Undertakings);
(b) is recourse to or obligates the
Borrower in any way other than pursuant to Standard
Securitization Undertakings; or
(c) subjects any property or asset of the
Borrower or any of its Subsidiaries (other than a
Securitization Entity), directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant
to Standard Securitization Undertakings;
(2) neither the Borrower nor any of its Subsidiaries
has any material contract, agreement, arrangement or
understanding (except in connection with a Purchase Money Note
or Qualified Securitization Transaction) other than on terms
no less favorable to the Borrower or such Subsidiary of the
Borrower than those that might be obtained at the time from
Persons that are not Affiliates of the Borrower, other than
fees payable in the ordinary course of business in connection
with servicing Permitted Timeshare Collateral; and
(3) neither the Borrower nor any of its Subsidiaries
has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain
levels of operating results.
"TIMESHARE SUBSIDIARY" shall mean Fairfield, its Subsidiaries,
or any other direct or indirect Subsidiary of the Borrower that is in
the business of developing, owning, selling, managing or financing
Timeshare Properties.
"TOTAL COMMITMENT" shall mean, at any time, the aggregate
amount of the Lenders' Commitments as in effect at such time.
"UPPER DECS" shall mean the securities, consisting of 6.75%
senior notes of the Borrower due 2006 and forward purchase contracts to
purchase the Borrower's common stock in August 2004, issued on July 27,
2001 pursuant to the Prospectus Supplement, dated as of July 20, 2001.
"UTILIZATION FEE" shall have the meaning assigned to such term
in Section 2.7 hereof.
2. THE LOANS
SECTION 2.1. COMMITMENTS.
(a) Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Revolving Credit Loans to the Borrower, at
any time and from time to time on and after the Closing Date and until the
earlier of the Maturity Date and the termination of the Commitment of such
Lender, in an aggregate principal amount at any time outstanding not to exceed
such Lender's Commitment minus the sum of such Lender's pro rata share of the
then current L/C Exposure plus the amount by which the Competitive Loans
outstanding at such time shall be deemed to have used such Lender's Commitment
pursuant to Section 2.18 subject, however, to the conditions that (a) at no time
shall (i) the sum of (A) the outstanding aggregate principal amount of all
Revolving Credit Loans made by all Lenders plus (B) the then current L/C
Exposure plus (C) the outstanding aggregate principal amount of all Competitive
Loans made by all Lenders exceed (ii) the Total Commitment and (b) at all times
the outstanding aggregate principal amount of all Revolving Credit Loans made by
each Lender shall equal the product of (i) the percentage that its Commitment
represents of the Total Commitment times (ii) the outstanding aggregate
principal amount of all Revolving Credit Loans made pursuant to a notice given
by the Borrower under Section 2.5. The Commitments of the Lenders may be
terminated or reduced from time to time pursuant to Section 2.12 or Article 7.
(b) Within the foregoing limits, the Borrower may borrow, pay
or repay and reborrow hereunder, on and after the Closing Date and prior to the
Maturity Date, upon the terms and subject to the conditions and limitations set
forth herein.
(c) The Term Loans outstanding under (and as defined in) the
Existing Term Loan Agreement at the close of business on the Closing Date shall
convert on such date into Revolving Credit Loans hereunder, which Revolving
Credit Loans may from time to time be (a) LIBOR Loans, (b) ABR Loans or (c) a
combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with Section 2.6.
SECTION 2.2. LOANS.
(a) Each Revolving Credit Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their Commitments; PROVIDED, HOWEVER, that the failure of any Lender to make any
Revolving Credit Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.4. The Revolving Credit Loans or
Competitive Loans comprising any Borrowing shall be (i) in the case of
Competitive Loans and LIBOR Loans, in an aggregate principal amount that is an
integral multiple of $5,000,000 and not less than $10,000,000 and (ii) in the
case of ABR Loans, in an aggregate principal amount that is an integral multiple
of $500,000 and not less than $5,000,000 (or if less, an aggregate principal
amount equal to the remaining balance of the available Total Commitment).
(b) Each Competitive Borrowing shall be comprised entirely of
LIBOR Competitive Loans or Fixed Rate Loans, and each Revolving Credit Borrowing
shall be comprised entirely of LIBOR Revolving Credit Loans or ABR Loans, as the
Borrower may request pursuant to Section 2.4 or 2.5, as applicable. Each Lender
may at its option make any LIBOR Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan, PROVIDED that any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of this Agreement and the applicable Note.
Borrowings of more than one Interest Rate Type may be outstanding at the same
time; PROVIDED, HOWEVER, that the Borrower shall not be entitled to request any
Borrowing that, if made, would result in an aggregate of more than 9 separate
Revolving Credit Loans of any Lender being outstanding hereunder at any one
time. For purposes of the calculation required by the immediately preceding
sentence, LIBOR Revolving Credit Loans having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Loans and all Loans of a single Interest Rate Type made on a single
date shall be considered a single Loan if such Loans have a common Interest
Period.
(c) Subject to Section 2.6, each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by making funds
available at the offices of the Administrative. Agent's Agent Bank Services
Department, 1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ Hambousi, for credit to
Cendant Corporation Clearing Account,
Account No. 144812905 (Reference:
Cendant Corporation
Credit Agreement dated as
of October 5, 2001) no later than 1:00 P.M. New York City time (2:00 P.M. New
York City time, in the case of an ABR Borrowing) in Federal or other immediately
available funds. Upon receipt of the funds to be made available by the Lenders
to fund any Borrowing hereunder, the Administrative Agent shall disburse such
funds by depositing them into an account of the Borrower maintained with the
Administrative Agent. Competitive Loans shall be made by the Lender or Lenders
whose Competitive Bids therefor are accepted pursuant to Section 2.4 in the
amounts so accepted and Revolving Credit Loans shall be made by all the Lenders
pro rata in accordance with Section 2.1 and this Section 2.2.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.
SECTION 2.3. USE OF PROCEEDS.
The proceeds of the Loans shall be used for working capital
and general corporate purposes of the Borrower and its Subsidiaries, including,
without limitation, for acquisitions, and support of the Borrower's commercial
paper program.
SECTION 2.4. COMPETITIVE BID PROCEDURE.
(a) In order to request Competitive Bids, the Borrower shall
hand deliver or telecopy to the Administrative Agent a duly completed
Competitive Bid Request in the form of Exhibit E-1, to be received by the
Administrative Agent (i) in the case of a LIBOR Competitive Borrowing, not later
than 10:00 a.m., New York City time, four Business Days before a proposed
Competitive Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., New York City time, one Business Day before a proposed
Competitive Borrowing. No ABR Loan shall be requested in, or made pursuant to, a
Competitive Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit E-1 may be rejected in the Administrative
Agent's sole discretion, and the Administrative Agent shall promptly notify the
Borrower of such rejection by telecopier. Such request for Competitive Bids
shall in each case refer to this Agreement and specify (i) whether the Borrowing
then being requested is to be a LIBOR Borrowing or a Fixed Rate Borrowing, (ii)
the date of such Borrowing (which shall be a Business Day) and the aggregate
principal amount thereof, which shall be in a minimum principal amount of
$10,000,000 and in an integral multiple of $5,000,000, and (iii) the Interest
Period with respect thereto (which may not end after the Maturity Date).
Promptly after its receipt of a Competitive Bid Request that is not rejected as
aforesaid, the Administrative Agent shall invite by telecopier (in the form set
forth in Exhibit E-2) the Lenders to bid, on the terms and subject to the
conditions of this Agreement, to make Competitive Loans pursuant to the
Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Lender must be received by the Administrative Agent via
telecopier, in the form of Exhibit E-3, (i) in the case of a LIBOR Competitive
Borrowing, not later than 9:30 a.m., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the day of a
proposed Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially to the
format of Exhibit E-3 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower, and the
Administrative Agent shall notify the Lender making such nonconforming bid of
such rejection as soon as practicable. Each Competitive Bid shall refer to this
Agreement and specify (i) the principal amount (which shall be in a minimum
principal amount of $10,000,000 and in an integral multiple of $5,000,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make to the Borrower, (ii) the Competitive Bid Rate or
Rates at which the Lender is prepared to make the Competitive Loan or Loans and
(iii) the Interest Period or Interest Periods with respect thereto. If any
Lender shall elect not to make a Competitive Bid, such Lender shall so notify
the Administrative Agent via telecopier (i) in the case of LIBOR Competitive
Loans, not later than 9:30 a.m., New York City time, three Business Days before
a proposed Competitive Borrowing and (ii) in the case of Fixed Rate Loans, not
later than 9:30 a.m., New York City time, on the day of a proposed Competitive
Borrowing; PROVIDED, HOWEVER, that failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive Loan as part
of such proposed Competitive Borrowing. A Competitive Bid submitted by a Lender
pursuant to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopier of all the Competitive Bids made, the Competitive Bid
Rate or Rates and the principal amount of each Competitive Loan in respect of
which a Competitive Bid was made and the identity of the Lender that made each
bid. The Administrative Agent shall send a copy of all Competitive Bids to the
Borrower for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.4.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Borrower shall notify
the Administrative Agent by telephone, promptly confirmed by telecopier in the
form of a Competitive Bid Accept/Reject Letter whether and to what extent it has
decided to accept or reject any or all of the bids referred to in paragraph (c)
above, (i) in the case of a LIBOR Competitive Borrowing, not later than 10:30
a.m., New York City time, three Business Days before a proposed Competitive
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than 10:30
a.m., New York City time, on the day of a proposed Competitive Borrowing;
PROVIDED, HOWEVER, that (A) the failure by the Borrower to give such notice
shall be deemed to be a rejection of all the bids referred to in paragraph (c)
above, (B) the Borrower shall not accept a bid made at a particular Competitive
Bid Rate if the Borrower has decided to reject a bid made at a lower Competitive
Bid Rate, (C) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the principal amount specified in the Competitive Bid
Request, (D) if the Borrower shall accept a bid or bids made at a particular
Competitive Bid Rate but the amount of such bid or bids shall cause the total
amount of bids to be accepted by the Borrower to exceed the amount specified in
the Competitive Bid Request, then the Borrower shall accept a portion of such
bid or bids in an amount equal to the amount specified in the Competitive Bid
Request less the amount of all other Competitive Bids accepted at lower
Competitive Bid Rates with respect to such Competitive Bid Request (it being
understood that acceptance in the case of multiple bids at such Competitive Bid
Rate, shall be made pro rata in accordance with the amount of each such bid at
such Competitive Bid Rate) and (E) except pursuant to clause (D) above, no bid
shall be accepted for a Competitive Loan unless such Competitive Loan is in a
minimum principal amount of $10,000,000 and an integral multiple of $5,000,000;
PROVIDED FURTHER, HOWEVER, that if a Competitive Loan must be in an amount less
than $10,000,000 because of the provisions of clause (D) above, such Competitive
Loan shall be in a minimum principal amount of $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Competitive Bid Rate pursuant to
clause (D), the amounts shall be rounded to integral multiples of $1,000,000 in
a manner that shall be in the discretion of the Borrower. A notice given by the
Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender whether its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within four
Business Days after the date of any previous Competitive Bid Request, or such
shorter period as may be agreed upon by the Borrower and the Administrative
Agent.
(g) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such bid directly
to the Borrower one quarter of an hour earlier than the latest time at which the
other Lenders are required to submit their bids to the Administrative Agent
pursuant to paragraph (b) above.
(h) All notices required by this Section 2.4 shall be given in
accordance with Section 9.1.
(i) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Competitive Loans unless at the
time of such request the Borrower has a senior unsecured long-term debt rating
of BBB- or better from S&P or Baa3 or better from ▇▇▇▇▇'▇.
SECTION 2.5. REVOLVING CREDIT BORROWING PROCEDURE.
In order to effect a Revolving Credit Borrowing, the Borrower
shall hand deliver or telecopy to the Administrative Agent a Borrowing notice in
the form of Exhibit F (a) in the case of a LIBOR Borrowing, not later than 12:00
(noon), New York City time, three Business Days before a proposed Borrowing, and
(b) in the case of an ABR Borrowing, not later than 12:00 (noon), New York City
time, on the day of a proposed Borrowing. No Fixed Rate Loan shall be requested
or made pursuant to a Revolving Credit Borrowing Request. Such notice shall be
irrevocable and shall in each case specify (a) whether the Borrowing then being
requested is to be a LIBOR Borrowing or an ABR Borrowing, (b) the date of such
Revolving Credit Borrowing (which shall be a Business Day) and the amount
thereof and (c) if such Borrowing is to be a LIBOR Borrowing, the Interest
Period with respect thereto. If no election as to the Interest Rate Type of a
Revolving Credit Borrowing is specified in any such notice, then the requested
Revolving Credit Borrowing shall be an ABR Borrowing. If no Interest Period with
respect to any LIBOR Borrowing is specified in any such notice, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. If the Borrower shall not have given notice in accordance with this
Section 2.5 of its election to refinance a Revolving Credit Borrowing prior to
the end of the Interest Period in effect for such Borrowing, then the Borrower
shall (unless such Borrowing is repaid at the end of such Interest Period) be
deemed to have given notice of an election to refinance such Borrowing with an
ABR Borrowing. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.5 and of each Lender's portion of the requested
Borrowing.
SECTION 2.6. REFINANCINGS.
The Borrower may refinance all or any part of any Borrowing
with a Borrowing of the same or a different Interest Rate Type made pursuant to
Section 2.4 or pursuant to a notice under Section 2.5, subject to the conditions
and limitations set forth herein and elsewhere in this Agreement, including
refinancings of Competitive Borrowings with Revolving Credit Borrowings and
Revolving Credit Borrowings with Competitive Borrowings; PROVIDED, HOWEVER, that
at any time after the occurrence, and during the continuation, of a Default or
an Event of Default, a Revolving Credit Borrowing or portion thereof may only be
refinanced with an ABR Borrowing. Any Borrowing or part thereof so refinanced
shall be deemed to be repaid in accordance with Section 2.8 with the proceeds of
a new Borrowing hereunder and the proceeds of the new Borrowing, to the extent
they do not exceed the principal amount of the Borrowing being refinanced, shall
not be paid by the Lenders to the Administrative Agent or by the Administrative
Agent to the Borrower pursuant to Section 2.2(c); PROVIDED, HOWEVER, that (a) if
the principal amount extended by a Lender in a refinancing is greater than the
principal amount extended by such Lender in the Borrowing being refinanced, then
such Lender shall pay such difference to the Administrative Agent for
distribution to the Borrower or any Lenders described in clause (b) below, as
applicable, (b) if the principal amount extended by a Lender in the Borrowing
being refinanced is greater than the principal amount being extended by such
Lender in the refinancing, the Administrative Agent shall return the difference
to such Lender out of amounts received pursuant to clause (a) above, and (c) to
the extent any Lender fails to pay the Administrative Agent amounts due from it
pursuant to clause (a) above, any Loan or portion thereof being refinanced with
such amounts shall not be deemed repaid in accordance with Section 2.6 and, to
the extent of such failure, the Borrower shall pay such amount to the
Administrative Agent as required by Section 2.10; and (d) to the extent the
Borrower fails to pay to the Administrative Agent any amounts due in accordance
with Section 2.10 as a result of the failure of a Lender to pay the
Administrative Agent any amounts due as described in clause (c) above, the
portion of any refinanced Loan deemed not repaid shall be deemed to be
outstanding solely to the Lender which has failed to pay the Administrative
Agent amounts due from it pursuant to clause (a) above to the full extent of
such Lender's portion of such Loan.
SECTION 2.7. FEES.
(a) The Borrower agrees to pay to each Lender, through the
Administrative Agent, on each March 31, June 30, September 30 and December 31,
commencing December 31, 2001, and on the date on which the Commitment of such
Lender shall be terminated as provided herein, a facility fee (a "FACILITY
FEE"), at the rate per annum from time to time in effect in accordance with
Section 2.22, on the average daily amount of the Commitment of such Lender,
whether used or unused, during the preceding quarter (or shorter period
commencing with the date hereof, or ending with the Maturity Date or any date on
which the Commitment of such Lender shall be terminated). All Facility Fees
shall be computed on the basis of the actual number of days elapsed in a year of
360 days. The Facility Fee due to each Lender shall commence to accrue on the
Closing Date, shall be payable in arrears and shall cease to accrue on
the earlier of the Maturity Date and the termination of the Commitment of such
Lender as provided herein.
(b) The Borrower agrees to pay to each Lender, through the
Administrative Agent, on each March 31, June 30, September 30 and December 31,
commencing December 31, 2001, and on the date on which the Commitment of such
Lender shall be terminated as provided herein and, if applicable, the date on
which the Obligations have been paid in full, a utilization fee (a "UTILIZATION
FEE"), at a rate per annum equal to 0.25%, on the amount of the Commitment of
such Lender (or, following termination of the Commitments, if applicable, the
Commitment of such Lender in effect immediately prior to such termination),
whether used or unused, for each day during the preceding quarter (or shorter
period commencing with the Closing Date, or ending with the Maturity Date or any
date on which the Commitment of such Lender shall be terminated) on which the
aggregate principal amount of Loans and L/C Exposure exceeds 33% of the
aggregate amount of the Total Commitments. All Utilization Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days. The Utilization Fee due to each Lender shall be payable in arrears and
shall cease to accrue on the date on which the Obligations, including any
outstanding Loans, have been paid in full and the Commitments terminated.
(c) The Borrower agrees to pay the Administrative Agent, for
its own account, the fees at the times and in the amounts provided for in the
letter agreement dated August 20, 2001 among the Borrower, Chase and ▇.▇. ▇▇▇▇▇▇
Securities Inc.
(d) All fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders. Once paid, none of the fees shall be refundable
under any circumstances.
SECTION 2.8. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Credit Loan of such Lender on the Maturity Date (or
such earlier date on which the Revolving Credit Loans become due and payable
pursuant to Article 7). The Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Revolving Credit Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in Section 2.9.
(b) The Borrower unconditionally promises to pay to the
Administrative Agent, for the account of each Lender that makes a Competitive
Loan, on the last day of the Interest Period applicable to such Competitive
Loan, the principal amount of such Competitive Loan. The Borrower further
unconditionally promises to pay interest on each such Competitive Loan for the
period from and including the date of Borrowing of such Competitive Loan on the
unpaid principal amount thereof from time to time outstanding at the applicable
rate per annum determined as provided in, and payable as specified in, Section
2.9.
(c) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Revolving Credit Loan and Competitive Loan of such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(d) The Administrative Agent shall maintain the Register
pursuant to Section 9.3(e), and a subaccount therein for each Lender, in which
shall be recorded (i) the amount of each Revolving Credit Loan and Competitive
Loan made hereunder, the Interest Rate Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the Borrower and each Lender's share thereof.
(e) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.8 shall, to the extent permitted by
applicable law, be PRIMA FACIE evidence of the existence and amounts of the
obligations of the Borrower therein recorded; PROVIDED, HOWEVER, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Revolving
Credit Loans and Competitive Loans made to the Borrower by such Lender in
accordance with the terms of this Agreement.
(f) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Revolving Credit
Loans of such Lender, substantially in the form of Exhibit A-1 with appropriate
insertions as to date and principal amount (a "REVOLVING CREDIT NOTE").
(g) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Competitive Loans
of such Lender, substantially in the form of Exhibit A-2 with appropriate
insertions as to date and principal amount (a "COMPETITIVE NOTE").
SECTION 2.9. INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.10, the Loans
comprising each LIBOR Borrowing shall bear interest (computed on the basis of
the actual number of days elapsed over a year of 360 days) at a rate per annum
equal to (i) in the case of each LIBOR Revolving Credit Loan, LIBOR for the
Interest Period in effect for such Borrowing plus the applicable LIBOR Spread
from time to time in effect and (ii) in the case of each LIBOR Competitive Loan,
LIBOR for the Interest Period in effect for such Borrowing plus the Margin
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.5. Interest on each LIBOR Borrowing shall be payable on each
applicable Interest Payment Date.
(b) Subject to the provisions of Section 2.10, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a
year of 365 or 366 days, as the case may be, when determined by reference to the
Prime Rate and over a year of 360 days at all other times) at a rate per annum
equal to the Alternate Base Rate plus the applicable margin, if any, for ABR
Loans from time to time in effect pursuant to Section 2.22.
(c) Subject to the provisions of Section 2.10, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed rate
of interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.4.
(d) Interest on each Loan shall be payable in arrears on each
Interest Payment Date applicable to such Loan. The LIBOR or the Alternate Base
Rate for each Interest Period or day within an Interest Period shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.10. INTEREST ON OVERDUE AMOUNTS.
If the Borrower shall default in the payment of the principal
of, or interest on, any Loan or any other amount becoming due hereunder, the
Borrower shall on demand from time to time pay interest, to the extent permitted
by Applicable Law, on such defaulted amount up to (but not including) the date
of actual payment (after as well as before judgment) at a rate per annum
computed on the basis of the actual number of days elapsed over a year of 365 or
366 days, as applicable, in the case of amounts bearing interest determined by
reference to the Prime Rate and a year of 360 days in all other cases, equal to
(a) in the case of the remainder of the then current Interest Period for any
LIBOR Loan or Fixed Rate Loan, the rate applicable to such Loan under Section
2.9 plus 2% per annum and (b) in the case of any other Loan or amount, the rate
that would at the time be applicable to an ABR Loan under Section 2.9 plus 2%
per annum.
SECTION 2.11. ALTERNATE RATE OF INTEREST.
In the event, and on each occasion, that on the day two
Business Days prior to the commencement of any Interest Period for a LIBOR Loan,
the Administrative Agent shall have determined that Dollar deposits in the
amount of the requested principal amount of such LIBOR Loan are not generally
available in the London Interbank Market, or that the rate at which such Dollar
deposits are being offered will not adequately and fairly reflect the cost to
any Lender of making or maintaining its portion of such LIBOR Loans during such
Interest Period, or that reasonable means do not exist for ascertaining LIBOR,
the Administrative Agent shall, as soon as practicable thereafter, give written
or telecopier notice of such determination to the Borrower and the Lenders. In
the event of any such determination, until the Administrative Agent shall have
determined that circumstances giving rise to such notice no longer exist, (a)
any request by the Borrower for a LIBOR Competitive Borrowing pursuant to
Section 2.4 shall be of no force and effect and shall be denied by the
Administrative Agent and (b) any request by the Borrower for a LIBOR Borrowing
pursuant to Section 2.5 shall be deemed to be a request for an ABR Loan. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.12. TERMINATION AND REDUCTION OF COMMITMENTS;
INCREASE OF COMMITMENTS.
(a) The Commitments of all of the Lenders shall be
automatically terminated on the earlier of (a) the Maturity Date and (b) October
5, 2001 if the Closing Date has not occurred on or prior to such date.
(b) Subject to Section 2.13(b), upon at least three Business
Days, prior irrevocable written or telecopy notice to the Administrative Agent,
the Borrower may at any time in whole permanently terminate, or from time to
time in part permanently reduce, the Total Commitment; PROVIDED, HOWEVER, that
(i) each partial reduction of the Total Commitment shall be in an integral
multiple of $5,000,000 and in a minimum principal amount of $10,000,000 and (ii)
the Borrower shall not be entitled to make any such termination or reduction
that would reduce the Total Commitment to an amount less than the sum of the
aggregate outstanding principal amount of the Loans plus the then current L/C
Exposure.
(c) Each reduction in the Total Commitment hereunder shall be
made ratably among the Lenders in accordance with their respective Commitments.
The Borrower shall pay to the Administrative Agent for the account of the
Lenders on the date of each termination or reduction in the Total Commitment,
the Facility Fees on the amount of the Total Commitment so terminated or reduced
accrued to the date of such termination or reduction.
(d) In the event that the Borrower wishes to increase the
aggregate Commitments at any time when no Default or Event of Default has
occurred and is continuing, it shall notify the Administrative Agent in writing
of the amount (the "OFFERED INCREASE AMOUNT") of such proposed increase (such
notice, a "COMMITMENT INCREASE NOTICE"). The Borrower may, at its election, (i)
offer one or more of the Lenders the opportunity to participate in all or a
portion of the Offered Increase Amount pursuant to paragraph (f) below and/or
(ii) with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld), offer one or more additional banks, financial
institutions or other entities the opportunity to participate in all or a
portion of the Offered Increase Amount pursuant to paragraph (e) below. Each
Commitment Increase Notice shall specify which Lenders and/or banks, financial
institutions or other entities the Borrower desires to participate in such
Commitment increase. The Borrower or, if requested by the Borrower, the
Administrative Agent, will notify such Lenders and/or banks, financial
institutions or other entities of such offer.
(e) Any additional bank, financial institution or other entity
which the Borrower selects to offer participation in the increased Commitments
and which elects to become a party to this Agreement and provide a Commitment in
an amount so offered and accepted by it pursuant to Section 2.12(d)(ii) shall
execute a New Lender Supplement with the Borrower and the Administrative Agent,
substantially in the form of Exhibit H, whereupon such bank, financial
institution or other entity (herein called a "NEW LENDER") shall become a Lender
for all purposes and to the same extent as if originally a party hereto and
shall be bound by and entitled to the benefits of this Agreement, and Schedule
2.1 shall be deemed to be amended to add the name and Commitment of such New
Lender, PROVIDED that the Commitment of any such new Lender shall be in an
amount not less than $10,000,000.
(f) Any Lender which accepts an offer to it by the Borrower to
increase its Commitment pursuant to Section 2.12(d)(i) shall, in each case,
execute a Commitment Increase Supplement with the Borrower and the
Administrative Agent, substantially in the form of Exhibit I, whereupon such
Lender shall be bound by and entitled to the benefits of this Agreement with
respect to the full amount of its Commitment as so increased, and Schedule 2.1
shall be deemed to be amended to so increase the Commitment of such Lender.
(g) Notwithstanding anything to the contrary in this Section
2.12, (i) in no event shall any transaction effected pursuant to this Section
2.12 cause the aggregate Commitments hereunder to exceed $1,500,000,000 and (ii)
no Lender shall have any obligation to increase its Commitment unless it agrees
to do so in its sole discretion.
SECTION 2.13. PREPAYMENT OF LOANS.
(a) Prior to the Maturity Date, the Borrower shall have the
right at any time to prepay any Revolving Credit Borrowing, in whole or in part,
subject to the requirements of Section 2.17 but otherwise without premium or
penalty, upon prior written or telecopy notice to the Administrative Agent
before 12:00 noon New York City time at least one Business Day in the case of an
ABR Loan and at least three Business Days in the case of a LIBOR Loan; PROVIDED,
HOWEVER, that each such partial prepayment shall be in an integral multiple of
$5,000,000 and in a minimum aggregate principal amount of $10,000,000. The
Borrower shall not have the right to prepay any Competitive Borrowing without
the consent of the relevant lender.
(b) On any date when the sum of the aggregate outstanding
Loans (after giving effect to any Borrowings effected on such date) plus the
then current L/C Exposure exceeds the Total Commitment, the Borrower shall make
a mandatory prepayment of the Revolving Credit Loans in such amount as may be
necessary so that the aggregate amount of outstanding Loans plus the then
current L/C Exposure after giving effect to such prepayment does not exceed the
Total Commitment then in effect. Any prepayments required by this paragraph
shall be applied to outstanding ABR Loans up to the full amount thereof before
they are applied to outstanding LIBOR Revolving Credit Loans.
(c) Each notice of prepayment pursuant to Section 2.13(a)
shall specify the specific Borrowing(s), the prepayment date and the aggregate
principal amount of each Borrowing to be prepaid, shall be irrevocable and shall
commit the Borrower to prepay such Borrowing(s) by the amount stated therein.
All prepayments under this Section 2.13 shall be accompanied by accrued interest
on the principal amount being prepaid, to the date of prepayment.
SECTION 2.14. EURODOLLAR RESERVE COSTS.
The Borrower shall pay to the Administrative Agent for the
account of each Lender, so long as such Lender shall be required under
regulations of the Board to maintain reserves with respect to liabilities or
assets consisting of, or including, Eurocurrency Liabilities (as defined in
Regulation D of the Board), additional interest on the unpaid principal amount
of
each LIBOR Loan made to the Borrower by such Lender, from the date of such Loan
until such Loan is paid in full, at an interest rate per annum equal at all
times during the Interest Period for such Loan to the remainder obtained by
subtracting (i) LIBOR for such Interest Period from (ii) the rate obtained by
multiplying LIBOR as referred to in clause (i) above by the Statutory Reserves
of such Lender for such Interest Period. Such additional interest shall be
determined by such Lender and notified to the Borrower (with a copy to the
Administrative Agent) not later than five Business Days before the next Interest
Payment Date for such Loan, and such additional interest so notified to the
Borrower by any Lender shall be payable to the Administrative Agent for the
account of such Lender on each Interest Payment Date for such Loan.
SECTION 2.15. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the
date of this Agreement any change in Applicable Law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) (i) shall subject any Lender to, or increase the net amount of,
any tax, levy, impost, duty, charge, fee, deduction or withholding with respect
to any LIBOR Loan or Fixed Rate Loan, or shall change the basis of taxation of
payments to any Lender of the principal of or interest on any LIBOR Loan or
Fixed Rate Loan made by such Lender or any other fees or amounts payable
hereunder (other than (x) taxes imposed on the overall net income of such Lender
by the jurisdiction in which such Lender has its principal office or its
applicable Lending Office or by any political subdivision or taxing authority
therein (or any tax which is enacted or adopted by such jurisdiction, political
subdivision or taxing authority as a direct substitute for any such taxes) or
(y) any tax, assessment, or other governmental charge that would not have been
imposed but for the failure of any Lender to comply with any certification,
information, documentation or other reporting requirement), (ii) shall impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender, or (iii) shall impose on any Lender or the London Interbank Market
any other condition affecting this Agreement or any LIBOR Loan or Fixed Rate
Loan made by such Lender, and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any LIBOR Loan or
Fixed Rate Loan or to reduce the amount of any sum received or receivable by
such Lender hereunder (whether of principal, interest or otherwise) in respect
thereof by an amount deemed in good faith by such Lender to be material, then
the Borrower shall pay such additional amount or amounts as will compensate such
Lender for such increase or reduction to such Lender upon demand by such Lender.
(b) If, after the date of this Agreement, any Lender shall
have determined in good faith that the adoption after the date hereof of any
applicable law, rule, regulation or guideline regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
Lending Office of such Lender) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's
capital or on the capital of the Lender's holding company, if any, as a
consequence of its obligations hereunder to a level below that which such Lender
(or its holding company) could have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's policies
or the policies of its holding company, as the case may be, with respect to
capital adequacy) by an amount deemed by such Lender to be material, then, from
time to time, the Borrower shall pay to the Administrative Agent for the account
of such Lender such additional amount or amounts as will compensate such Lender
for such reduction upon demand by such Lender.
(c) A certificate of a Lender setting forth in reasonable
detail (i) such amount or amounts as shall be necessary to compensate such
Lender as specified in paragraph (a) or (b) above, as the case may be, and (ii)
the calculation of such amount or amounts referred to in the preceding clause
(i), shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay the Administrative Agent for the account of such
Lender the amount shown as due on any such certificate within 10 Business Days
after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation
for any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any Interest Period shall not
constitute a waiver of such Lender's rights to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to such Interest Period or any other Interest
Period. The protection of this Section 2.14 shall be available to each Lender
regardless of any possible contention of invalidity or inapplicability of the
law, regulation or condition which shall have been imposed.
(e) Each Lender agrees that, as promptly as practicable after
it becomes aware of the occurrence of an event or the existence of a condition
that (i) would cause it to incur any increased cost under this Section 2.15,
Section 2.16, Section 2.21 or Section 2.23(g) or (ii) would require the Borrower
to pay an increased amount under this Section 2.15, Section 2.16, Section 2.21
or Section 2.23(g), it will use reasonable efforts to notify the Borrower of
such event or condition and, to the extent not inconsistent with such Lender's
internal policies, will use its reasonable efforts to make, fund or maintain the
affected Loans of such Lender, or, if applicable to participate in Letters of
Credit, through another Lending Office of such Lender if as a result thereof the
additional monies which would otherwise be required to be paid or the reduction
of amounts receivable by such Lender thereunder in respect of such Loans or
Letters of Credit would be materially reduced, or any inability to perform would
cease to exist, or the increased costs which would otherwise be required to be
paid in respect of such Loans or Letters of Credit pursuant to this Section
2.15, Section 2.16, Section 2.21 or Section 2.23(g) would be materially reduced
or the taxes or other amounts otherwise payable under this Section 2.15, Section
2.16, Section 2.21 or Section 2.23(g) would be materially reduced, and if, as
determined by such Lender, in its sole discretion, the making, funding or
maintaining of such Loans or Letters of Credit through such other Lending Office
would not otherwise materially adversely affect such Loans or Letters of Credit
or such Lender.
(f) In the event any Lender shall have delivered to the
Borrower a notice that LIBOR Loans are no longer available from such Lender
pursuant to Section 2.16, that amounts are due to such Lender pursuant to
paragraph (c) hereof or that any of the events designated in paragraph (e)
hereof have occurred, the Borrower may (but subject in any such case to the
payments required by Section 2.17), provided that there shall exist no Default
or Event of Default, upon at least five Business Days' prior written or
telecopier notice to such Lender and the Administrative Agent, but not more than
30 days after receipt of notice from such Lender, identify to the Administrative
Agent a lending institution reasonably acceptable to the Administrative Agent
which will purchase the Commitment, the amount of outstanding Loans and any
participations in Letters of Credit from the Lender providing such notice and
such Lender shall thereupon assign its Commitment, any Loans owing to such
Lender and any participations in Letters of Credit and the Notes held by such
Lender to such replacement lending institution pursuant to Section 9.3. Such
notice shall specify an effective date for such assignment and at the time
thereof, the Borrower shall pay all accrued interest, Facility Fees, Utilization
Fees and all other amounts (including without limitation all amounts payable
under this Section) owing hereunder to such Lender as at such effective date for
such assignment.
SECTION 2.16. CHANGE IN LEGALITY.
(a) Notwithstanding anything to the contrary herein contained,
if any change in any law or regulation or in the interpretation thereof by any
Governmental Authority charged with the administration or interpretation thereof
shall make it unlawful for any Lender to make or maintain any LIBOR Loan or to
give effect to its obligations as contemplated hereby, then, by written notice
to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that LIBOR Loans will not thereafter be made
by such Lender hereunder, whereupon such Lender shall not submit a
Competitive Bid in response to a request for LIBOR Competitive Loans
and the Borrower shall be prohibited from requesting LIBOR Revolving
Credit Loans from such Lender hereunder unless such declaration is
subsequently withdrawn; and
(ii) require that all outstanding LIBOR Loans made by it
be converted to ABR Loans, in which event (A) all such LIBOR Loans
shall be automatically converted to ABR Loans as of the effective date
of such notice as provided in Section 2.16(b) and (B) all payments and
prepayments of principal which would otherwise have been applied to
repay the converted LIBOR Loans shall instead be applied to repay the
ABR Loans resulting from the conversion of such LIBOR Loans.
(b) For purposes of this Section 2.16, a notice to the
Borrower by any Lender pursuant to Section 2.16(a) shall be effective on the
date of receipt thereof by the Borrower.
SECTION 2.17. REIMBURSEMENT OF LENDERS.
(a) The Borrower shall reimburse each Lender on demand for any
loss incurred or to be incurred by it in the reemployment of the funds released
(i) by any prepayment (for any reason) of any LIBOR or Fixed Rate Loan if such
Loan is repaid other than on the last
day of the applicable Interest Period for such Loan or (ii) in the event that
after the Borrower delivers a notice of borrowing under Section 2.5 in respect
of LIBOR Revolving Credit Loans or a Competitive Bid Accept/Reject Letter under
Section 2.4(d), pursuant to which it has accepted bids of one or more of the
Lenders, the applicable Loan is not made on the first day of the Interest Period
specified by the Borrower for any reason other than (I) a suspension or
limitation under Section 2.16 of the right of the Borrower to select a LIBOR
Loan or (II) a breach by a Lender of its obligations hereunder. In the case of
such failure to borrow, such loss shall be the amount as reasonably determined
by such Lender as the excess, if any of (A) the amount of interest which would
have accrued to such Lender on the amount not borrowed, at a rate of interest
equal to the interest rate applicable to such Loan pursuant to Section 2.9, for
the period from the date of such failure to borrow, to the last day of the
Interest Period for such Loan which would have commenced on the date of such
failure to borrow, over (B) the amount realized by such Lender in reemploying
the funds not advanced during the period referred to above. In the case of a
payment other than on the last day of the Interest Period for a Loan, such loss
shall be the amount as reasonably determined by the Administrative Agent as the
excess, if any, of (A) the amount of interest which would have accrued on the
amount so paid at a rate of interest equal to the interest rate applicable to
such Loan pursuant to Section 2.9, for the period from the date of such payment
to the last day of the then current daily Interest Period for such Loan, over
(B) the amount equal to the product of (x) the amount of the Loan so paid TIMES
(y) the current daily yield on U.S. Treasury Securities (at such date of
determination) with maturities approximately equal to the remaining Interest
Period for such Loan TIMES (z) the number of days remaining in the Interest
Period for such Loan. Each Lender shall deliver to the Borrower from time to
time one or more certificates setting forth the amount of such loss (and in
reasonable detail the manner of computation thereof) as determined by such
Lender, which certificates shall be conclusive absent manifest error. The
Borrower shall pay to the Administrative Agent for the account of each Lender
the amount shown as due on any certificate within thirty (30) days after its
receipt of the same.
(b) In the event the Borrower fails to prepay any Loan on the
date specified in any prepayment notice delivered pursuant to Section 2.13(a),
the Borrower on demand by any Lender shall pay to the Administrative Agent for
the account of such Lender any amounts required to compensate such Lender for
any loss incurred by such Lender as a result of such failure to prepay,
including, without limitation, any loss, cost or expenses incurred by reason of
the acquisition of deposits or other funds by such Lender to fulfill deposit
obligations incurred in anticipation of such prepayment. Each Lender shall
deliver to the Borrower and the Administrative Agent from time to time one or
more certificates setting forth the amount of such loss (and in reasonable
detail the manner of computation thereof) as determined by such Lender, which
certificates shall be conclusive absent manifest error.
SECTION 2.18. PRO RATA TREATMENT.
Except as permitted under Sections 2.14, 2.15(c), 2.16 and
2.17 (i) each Revolving Credit Borrowing, each payment or prepayment of
principal of any Revolving Credit Borrowing, each payment of interest on the
Revolving Credit Loans, each payment of the Facility Fees and Utilization Fees,
each reduction of the Total Commitment and each refinancing of any Borrowing
with, or conversion of any Borrowing to, a Revolving Credit Borrowing, or
continuation of any Borrowing as a Revolving Credit Borrowing, shall be
allocated pro rata among the Lenders in accordance with their respective
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amount of their outstanding Revolving
Credit Loans). Each payment of principal of any Competitive Borrowing shall be
allocated pro rata among the Lenders participating in such Borrowing in
accordance with the respective principal amounts of their outstanding
Competitive Loans comprising such Borrowing. Each payment of interest on any
Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective amounts of
accrued and unpaid interest on their outstanding Competitive Loans comprising
such Borrowing. For purposes of determining the available Commitments of the
Lenders at any time, each outstanding Competitive Borrowing shall be deemed to
have utilized the Commitments of the Lenders (including those Lenders that shall
not have made Loans as part of such Competitive Borrowing) pro rata in
accordance with such respective Commitments. Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing computed in accordance with Section 2.1, to the next higher or
lower whole dollar amount.
SECTION 2.19. RIGHT OF SETOFF.
If any Event of Default shall have occurred and be continuing
and any Lender shall have requested the Administrative Agent to declare the
Loans immediately due and payable pursuant to Article 7, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
Applicable Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by such Lender and any
other indebtedness at any time owing by such Lender to, or for the credit or the
account of, the Borrower, against any of and all the obligations now or
hereafter existing under this Agreement and the Loans held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement or such Loans and although such Obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such setoff and
application made by such Lender, but the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each Lender
under this Section 2.19 are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have.
SECTION 2.20. MANNER OF PAYMENTS.
All payments by the Borrower hereunder and under the Notes
shall be made in Dollars in Federal or other immediately available funds without
deduction, setoff or counterclaim at the office of the Administrative Agent's
Agent Bank Services Department, 1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ Hambousi, for credit to
Cendant Corporation
Clearing Account, Account No. 144812905 (Reference:
Cendant Corporation
Credit
Agreement dated October 5, 2001) no later than 12:00 noon, New York City time,
on the date on which such payment shall be due. Interest in respect of any Loan
hereunder shall accrue from and including the date of such Loan to, but
excluding, the date on which such Loan is paid or refinanced with a Loan of a
different Interest Rate Type.
SECTION 2.21. UNITED STATES WITHHOLDING.
(a) Prior to the date of the initial Loans or the issuance of
the initial Letter of Credit hereunder, and from time to time thereafter if
requested by the Borrower or the Administrative Agent or required because, as a
result of a change in Applicable Law or a change in circumstances or otherwise,
a previously delivered form or statement becomes incomplete or incorrect in any
material respect, each Lender organized under the laws of a jurisdiction outside
the United States shall provide, if applicable, the Administrative Agent and the
Borrower with complete, accurate and duly executed forms or other statements
prescribed by the Internal Revenue Service of the United States certifying such
Lender's exemption from, or entitlement to a reduced rate of, United States
withholding taxes (including backup withholding taxes) with respect to all
payments to be made to such Lender hereunder and under the Notes.
(b) The Borrower and the Administrative Agent shall be
entitled to deduct and withhold any and all present or future taxes or
withholdings, and all liabilities with respect thereto, from payments hereunder
or under the Notes, if and to the extent that the Borrower or the Administrative
Agent in good faith determines that such deduction or withholding is required by
the law of the United States, including, without limitation, any applicable
treaty of the United States. In the event the Borrower or the Administrative
Agent shall so determine that deduction or withholding of taxes is required, it
shall advise the affected Lender as to the basis of such determination prior to
actually deducting and withholding such taxes. In the event the Borrower or the
Administrative Agent shall so deduct or withhold taxes from amounts payable
hereunder, it (i) shall pay to or deposit with the appropriate taxing authority
in a timely manner the full amount of taxes it has deducted or withheld; (ii)
shall provide evidence of payment of such taxes to, or the deposit thereof with,
the appropriate taxing authority and a statement setting forth the amount of
taxes deducted or withheld, the applicable rate, and any other information or
documentation reasonably requested by the Lenders from whom the taxes were
deducted or withheld; and (iii) shall forward to such Lenders any receipt for
such payment or deposit of the deducted or withheld taxes as may be issued from
time to time by the appropriate taxing authority. Unless the Borrower and the
Administrative Agent have received forms or other documents satisfactory to them
indicating that payments hereunder or under the Notes are not subject to United
States withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Borrower or the Administrative Agent may withhold
taxes from such payments at the applicable statutory rate in the case of
payments to or for any Lender organized under the laws of a jurisdiction outside
the United States.
(c) Each Lender agrees (i) that as between it and the Borrower
or the Administrative Agent, it shall be the Person to deduct and withhold
taxes, and to the extent required by law it shall deduct and withhold taxes, on
amounts that such Lender may remit to any other Person(s) by reason of any
undisclosed transfer or assignment of an interest in this Agreement to such
other Person(s) pursuant to paragraph (g) of Section 9.3 and (ii) to indemnify
the Borrower and the Administrative Agent and any officers, directors, agents,
or employees of the Borrower or the Administrative Agent against, and to hold
them harmless from, any tax, interest, additions to tax, penalties, reasonable
counsel and accountants' fees, disbursements or payments arising from the
assertion by any appropriate taxing authority of any claim against
them relating to a failure to withhold taxes as required by Applicable Law with
respect to amounts described in clause (i) of this paragraph (c).
(d) Each assignee of a Lender's interest in this Agreement in
conformity with Section 9.3 shall be bound by this Section 2.21, so that such
assignee will have all of the obligations and provide all of the forms and
statements and all indemnities, representations and warranties required to be
given under this Section 2.21.
(e) In the event that any withholding taxes shall become
payable solely as a result of any change in any statute, treaty, ruling,
determination or regulation occurring after the Initial Date in respect of any
sum payable hereunder or under any other Fundamental Document to any Lender or
the Administrative Agent (i) the sum payable by the Borrower shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.21) such
Lender or the Administrative Agent (as the case may be) receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with Applicable Law. For purposes of this Section 2.21, the term
"Initial Date" shall mean (i) in the case of the Administrative Agent, the date
hereof, (ii) in the case of each Lender as of the date hereof, the date hereof
and (iii) in the case of any other Lender, the effective date of the Assignment
and Acceptance pursuant to which it became a Lender.
SECTION 2.22. CERTAIN PRICING ADJUSTMENTS.
The Facility Fee and the applicable LIBOR Spread in effect
from time to time shall be determined in accordance with the following table:
S&P/▇▇▇▇▇'▇ Rating Equivalent
of the Borrower's senior Facility Fee Applicable LIBOR
unsecured long-term debt (in Basis PointS) Spread (in Basis Points)
----------------------------- ----------------- ------------------------
BBB-/Baa3 or better 17.5 82.5
BB+/Bal or lower 32.5 117.5
In the event the S&P rating on the Borrower's senior unsecured
long-term debt is not equivalent to the ▇▇▇▇▇'▇ rating on such debt, the lower
rating will determine the Facility Fee and applicable LIBOR Spread. In the event
that the Borrower's senior unsecured long-term debt is rated by only one of S&P
and ▇▇▇▇▇'▇, then that single rating shall be determinative. In the event that
the Borrower's senior unsecured long-term debt is not rated by either S&P or
▇▇▇▇▇'▇, then the Facility Fee and the applicable LIBOR Spread shall be deemed
to be calculated as if the lowest rating category set forth above applied. Any
increase in the Facility Fee or the applicable LIBOR Spread determined in
accordance with the foregoing table shall become effective on the date of
announcement or publication by the Borrower or either such rating agency of a
reduction in such rating or, in the absence of such announcement or publication,
on the effective date of such decreased rating, or on the date of any request by
the Borrower to either of such rating agencies not to rate its senior unsecured
long-term debt or on
the date either of such rating agencies announces it shall no longer rate the
Borrower's senior unsecured long-term debt. Any decrease in the Facility Fee or
applicable LIBOR Spread shall be effective on the date of announcement or
publication by either of such rating agencies of an increase in rating or in the
absence of announcement or publication on the effective date of such increase in
rating. The applicable margin for ABR Loans shall be 1% less than the applicable
LIBOR Spread (but not less than 0%).
SECTION 2.23. LETTERS OF CREDIT.
(a) (i) Upon the terms and subject to the conditions hereof,
each Issuing Lender agrees to issue standby Letters of Credit payable
in Dollars from time to time after the Closing Date and prior to the
earlier of the Maturity Date and the termination of the Commitments,
upon the request of the Borrower, provided that (A) the Borrower shall
not request that any Letter of Credit be issued if, after giving effect
thereto, the sum of the then current L/C Exposure plus the aggregate
Loans then outstanding would exceed the Total Commitment, (B) in no
event shall any Issuing Lender issue (x) any Letter of Credit having an
expiration date later than five Business Days before the Maturity Date
or (y) any Letter of Credit having an expiration date more than one
year after its date of issuance, PROVIDED that any Letter of Credit
with a one-year tenor may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the
date referred to in clause (x) above), (C) the Borrower shall not
request that an Issuing Lender issue any Letter of Credit if, after
giving effect to such issuance, the L/C Exposure would exceed
$300,000,000, and (D) an Issuing Lender shall be prohibited from
issuing Letters of Credit hereunder upon the occurrence and during the
continuance of an Event of Default.
(ii) Immediately upon the issuance of each Letter of Credit,
each Lender shall be deemed to, and hereby agrees to, have irrevocably
purchased from the applicable Issuing Lender, a participation in such
Letter of Credit in accordance with the percentage which its Commitment
represents to the Total Commitment.
(iii) Each Letter of Credit may, at the option of the
applicable Issuing Lender, provide that such Issuing Lender may (but
shall not be required to) pay all or any part of the maximum amount
which may at any time be available for drawing thereunder to the
beneficiary thereof upon the occurrence of an Event of Default and the
acceleration of the maturity of the Loans, provided that, if payment is
not then due to the beneficiary, such Issuing Lender shall deposit the
funds in question in an account with such Issuing Lender to secure
payment to the beneficiary and any funds so deposited shall be paid to
the beneficiary of the Letter of Credit if conditions to such payment
are satisfied or returned to the Administrative Agent for distribution
to the Lenders (or, if all Obligations shall have been paid in full in
cash, to the Borrower) if no payment to the beneficiary has been made
and the final date available for drawings under the Letter of Credit
has passed. Each payment or deposit of funds by an Issuing Lender as
provided in this paragraph shall be treated for all purposes of this
Agreement as a drawing duly honored by such Issuing Lender under the
related Letter of Credit.
(b) Whenever the Borrower desires the issuance of a Letter of
Credit, it shall deliver to the Administrative Agent and the applicable Issuing
Lender a written notice no later than 1:00 p.m. (New York time) at least five
Business Days prior to the proposed date of issuance provided, however, that the
Borrower and the Administrative Agent and such Issuing Lender may agree to a
shorter time period. That notice shall specify (i) the Issuing Lender for such
Letter of Credit, (ii) the proposed date of issuance (which shall be a Business
Day under the laws of the jurisdiction of the applicable Issuing Lender), (iii)
the face amount of the Letter of Credit, (iv) the expiration date of the Letter
of Credit and (v) the name and address of the beneficiary. Such notice shall be
accompanied by a brief description of the underlying transaction and upon the
request of the applicable Issuing Lender, the Borrower shall provide additional
details regarding the underlying transaction. Concurrently with the giving of
written notice of a request for the issuance of a Letter of Credit, the Borrower
shall specify a precise description of the documents and the verbatim text of
any certificate to be presented by the beneficiary of such Letter of Credit
which, if presented by such beneficiary prior to the expiration date of the
Letter of Credit, would require the applicable Issuing Lender to make payment
under the Letter of Credit; provided that the applicable Issuing Lender, in its
reasonable discretion, may require customary changes in any such documents and
certificates. Upon issuance of any Letter of Credit, the applicable Issuing
Lender shall notify the Administrative Agent of the issuance of such Letter of
Credit. Promptly after receipt of such notice, the Administrative Agent shall
notify each Lender of the issuance and the amount of each such Lender's
respective participation therein.
(c) The payment of drafts under any Letter of Credit shall be
made in accordance with the terms of such Letter of Credit and, in that
connection, any Issuing Lender shall be entitled to honor any drafts and accept
any documents presented to it by the beneficiary of such Letter of Credit in
accordance with the terms of such Letter of Credit and believed by such Issuing
Lender in good faith to be genuine. No Issuing Lender shall have any duty to
inquire as to the accuracy or authenticity of any draft or other drawing
documents which may be presented to it, but shall be responsible only to
determine in accordance with customary commercial practices that the documents
which are required to be presented before payment or acceptance of a draft under
any Letter of Credit have been delivered and that they comply on their face with
the requirements of that Letter of Credit.
(d) If any Issuing Lender shall make payment on any draft
presented under a Letter of Credit, such Issuing Lender shall give notice of
such payment to the Administrative Agent and the Lenders and each Lender hereby
authorizes and requests such Issuing Lender to advance for its account pursuant
to the terms hereof its share of such payment based upon its participation in
the Letter of Credit and agrees promptly to reimburse such Issuing Lender in
immediately available funds for the Dollar equivalent of the amount so advanced
on its behalf. If such reimbursement is not made by any Lender in immediately
available funds on the same day on which such Issuing Lender shall have made
payment on any such draft, such Lender shall pay interest thereon to such
Issuing Lender at a rate per annum equal to the Issuing Lender's cost of
obtaining overnight funds in the New York Federal Funds Market.
(e) In the case of any draft presented under a Letter of
Credit which is required to be paid at any time on or before the Maturity Date
and provided that the conditions
specified in Section 4.2 are then satisfied, such payment shall constitute an
ABR Loan hereunder, and interest shall accrue from the date the applicable
Issuing Lender makes payment of a draft under the Letter of Credit. If any draft
is presented under a Letter of Credit and (i) the conditions specified in
Section 4.2 are not satisfied or (ii) if the Commitments have been terminated,
then the Borrower will, upon demand by the Administrative Agent, pay to the
applicable Issuing Lender, in immediately available funds, the full amount of
such draft.
(f) (i) The Borrower agrees to pay the following amount to
each Issuing Lender with respect to Letters of Credit issued by it hereunder:
(A) with respect to drawings made under any Letter of Credit,
interest, payable on demand, on the amount paid by such Issuing Lender
in respect of each such drawing from the date of the drawing to, but
excluding, the date such amount is reimbursed by the Borrower at a rate
which is at all times equal to 2% per annum in excess of the Alternate
Base Rate; provided that no such default interest shall be payable if
such reimbursement is made from the proceeds of Revolving Credit Loans
pursuant to Section 2.23(e);
(B) with respect to the issuance, amendment or transfer of
each Letter of Credit and each drawing made thereunder, documentation
and processing charges in accordance with such Issuing Lender's
standard schedule for such charges in effect at the time of such
issuance, amendment, transfer or drawing, as the case may be; and
(C) a fronting fee computed at the rate agreed to by the
Borrower and the applicable Issuing Lender, on the daily average face
amount of each outstanding Letter of Credit issued by such Issuing
Lender, such fee to be due and payable in arrears on and through the
last day of each fiscal quarter of the Borrower, on the Maturity Date
and on the expiration of the last outstanding Letter of Credit.
(ii) The Borrower agrees to pay to the Administrative
Agent for distribution to each Lender in respect of all Letters of
Credit outstanding, such Lender's pro rata share of a commission on the
maximum amount available from time to time to be drawn under such
outstanding Letters of Credit calculated at a rate per annum equal to
the applicable LIBOR Spread from time to time in effect hereunder. Such
commission shall be payable in arrears on and through the last day of
each fiscal quarter of the Borrower and on the later of the Maturity
Date and the expiration of the last outstanding Letter of Credit.
(iii) Promptly upon receipt by any Issuing Lender or the
Administrative Agent (as applicable) of any amount described in clause
(i)(A) or (ii) of this Section 2.23(f), or any amount described in
Section 2.23(e) previously reimbursed to the applicable Issuing Lender
by the Lenders, such Issuing Lender or the Administrative Agent (as
applicable) shall distribute to each Lender its pro rata share of such
amount. Amounts payable under clauses (i)(B) and (i)(C) of this Section
2.23(f) shall be paid directly to the Issuing Lender and shall be for
its exclusive use.
(g) If by reason of (i) any change after the date hereof in
Applicable Law, or in the interpretation or administration thereof (including,
without limitation, any request, guideline or policy not having the force of
law) by any Governmental Authority charged with the administration or
interpretation thereof, or (ii) compliance by any Issuing Lender or any Lender
with any direction, request or requirement (whether or not having the force of
law) issued after the date hereof by any Governmental Authority or monetary
authority (including any change whether or not proposed or published prior to
the date hereof), including, without limitation, Regulation D of the Board:
(A) any Issuing Lender or any Lender shall be subject to any
tax, levy, charge or withholding of any nature (other than withholding
tax imposed by the United States of America or any political
subdivision or taxing authority thereof or therein or any other tax,
levy, charge or withholding (i) that is measured with respect to the
overall net income of such Issuing Lender or such Lender (or is imposed
in lieu of a tax on net income) or of a Lending office of such Issuing
Lender or such Lender, and that is imposed by the United States of
America, or by the jurisdiction in which such Issuing Lender or such
Lender is incorporated, or in which such Lending Office is located,
managed or controlled or in which such Issuing Lender or such Lender
has its principal office (or any political subdivision or taxing
authority thereof or therein) or (ii) that is imposed solely by reason
of such Issuing Lender or such Lender failing to make a declaration of,
or otherwise to establish, non-residence, or to make any other claim
for exemption, or otherwise to comply with any certification,
identification, information, documentation or reporting requirements
prescribed under the laws of the relevant jurisdiction, in those cases
where such Issuing Lender or such Lender may properly make the
declaration or claim or so establish non-residence or otherwise comply)
or to any variation thereof or to any penalty with respect to the
maintenance or fulfillment of its obligations under this Section 2.23,
whether directly or by such being imposed on or suffered by any Issuing
Lender or any Lender;
(B) any reserve, deposit or similar requirement is or shall be
applicable, imposed or modified in respect of any Letter of Credit
issued by any Issuing Lender or participations therein purchased by any
Lender; or
(C) there shall be imposed on any Issuing Lender or any Lender
any other condition regarding this Section 2.23, any Letter of Credit
or any participation therein;
and the result of the foregoing is directly or indirectly to increase the cost
to any Issuing Lender or any Lender of issuing, making or maintaining any Letter
of Credit or of purchasing or maintaining any participation therein, or to
reduce the amount receivable in respect thereof by any Issuing Lender or any
Lender, then and in any such case the Issuing Lender or such Lender may, at any
time, notify the Borrower, and the Borrower shall pay on demand such amounts as
such Issuing Lender or such Lender may specify to be necessary to compensate
such Issuing Lender or such Lender for such additional cost or reduced receipt.
The determination by any Issuing Lender or any Lender, as the case may be, of
any amount due pursuant to this Section 2.23 as set forth in a certificate
setting forth the calculation thereof in reasonable detail shall, in the absence
of manifest error, be final, conclusive and binding on all of the parties
hereto.
(h) If at any time when an Event of Default shall have
occurred and be continuing, any Letters of Credit shall remain outstanding, then
either the applicable Issuing Lender(s) or the Required Lenders may, at their
option, require the Borrower to deposit Cash Equivalents in a Cash Collateral
Account in an amount equal to the full amount of the L/C Exposure or to furnish
other security acceptable to the Administrative Agent and the applicable Issuing
Lender(s). Any amounts so delivered pursuant to the preceding sentence shall be
applied to reimburse the applicable Issuing Lender(s) for the amount of any
drawings honored under Letters of Credit issued by it; provided, however, that
if prior to the Maturity Date, no Event of Default is then continuing, the
Administrative Agent shall return all of such collateral relating to such
deposit to the Borrower if requested by it.
(i) If at any time, the L/C Exposure exceeds the aggregate
Commitments, then the Required Lenders may, at their option, require the
Borrower to deposit Cash Equivalents in a Cash Collateral Account in an amount
sufficient to eliminate such excess or to furnish other security for such excess
acceptable to the Administrative Agent and the Issuing Lender(s). Any amounts so
delivered pursuant to the preceding sentence shall be applied to reimburse the
applicable, Issuing Lender(s) for the amount of any drawings honored under
Letters of Credit; PROVIDED, HOWEVER, that if subsequent to any such deposit
such excess is reduced to an amount less than the portion of such deposited
amounts and no Default or Event of Default is then continuing, the Borrower
shall be entitled to receive such excess collateral if requested by it.
(j) Upon the request of the Administrative Agent, each Issuing
Lender shall furnish to the Administrative Agent copies of any Letter of Credit
issued by such Issuing Lender and such related documentation as may be
reasonably requested by the Administrative Agent.
(k) Notwithstanding the termination of the Commitments and the
payment of the Loans, the obligations of the Borrower under this Section 2.23
shall remain in full force and effect until the Administrative Agent, each
Issuing Lender and the Lenders shall have been irrevocably released from their
obligations with regard to any and all Letters of Credit.
3. REPRESENTATIONS AND WARRANTIES OF BORROWER
In order to induce the Lenders to enter into this Agreement
and to make the Loans and issue and participate in the Letters of Credit
provided for herein, the Borrower makes the following representations and
warranties to the Administrative Agent and the Lenders, all of which shall
survive the execution and delivery of this Agreement, the issuance of the Notes
and the making of the Loans and issuance of the Letters of Credit:
SECTION 3.1. CORPORATE EXISTENCE AND POWER.
The Borrower and its Subsidiaries have been duly organized and
are validly existing in good standing under the laws of their respective
jurisdictions of incorporation and are in good standing or have applied for
authority to operate as a foreign corporation in all jurisdictions where the
nature of their properties or business so requires it and where a failure to be
in good standing as a foreign corporation would have a Material Adverse Effect.
The Borrower has the corporate power to execute, deliver and perform its
obligations under this
Agreement and the other Fundamental Documents and other documents contemplated
hereby and to borrow hereunder.
SECTION 3.2. CORPORATE AUTHORITY, NO VIOLATION AND COMPLIANCE
WITH LAW.
The execution, delivery and performance of this Agreement and
the other Fundamental Documents and the borrowings hereunder (a) have been duly
authorized by all necessary corporate action on the part of the Borrower, (b)
will not violate any provision of any Applicable Law (including any laws related
to franchising) applicable to the Borrower or any of its Subsidiaries or any of
their respective properties or assets, (c) will not violate any provision of the
Certificate of Incorporation or By-Laws of the Borrower or any of its
Subsidiaries, or any indenture, any agreement for borrowed money, any bond, note
or other similar instrument or any other material agreement to which the
Borrower or any of its Subsidiaries is a party or by which the Borrower or any
of its Subsidiaries or any of their respective properties or assets are bound,
(d) will not be in conflict with, result in a breach of, or constitute (with due
notice or lapse of time or both) a default under, any material indenture,
agreement, bond, note or instrument and (e) will not result in the creation or
imposition of any Lien upon any property or assets of the Borrower or any of its
Subsidiaries other than pursuant to this Agreement or any other Fundamental
Document.
SECTION 3.3. GOVERNMENTAL AND OTHER APPROVAL AND CONSENTS.
No action, consent or approval of, or registration or filing
with, or any other action by, any governmental agency, bureau, commission or
court is required in connection with the execution, delivery and performance by
the Borrower of this Agreement or the other Fundamental Documents.
SECTION 3.4. FINANCIAL STATEMENTS OF BORROWER.
The (a) audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries as of December 31, 1999 and December
31, 2000, and (b) unaudited consolidated balance sheets of the Borrower and its
Consolidated Subsidiaries as of March 31, 2001 and June 30, 2001, together with
the related unaudited statements of income, shareholders' equity and cash flows
for such periods, fairly present the financial condition of the Borrower and its
Consolidated Subsidiaries as at the dates indicated and the results of
operations and cash flows for the periods indicated in conformity with GAAP
subject to normal year-end adjustments in the case of the March 31, 2001 and
June 30, 2001 financial statements.
SECTION 3.5. NO MATERIAL ADVERSE CHANGE.
There has been no material adverse change in the business,
assets, operations, or condition, financial or otherwise, of the Borrower and
its Subsidiaries taken as a whole from that disclosed in the audited
consolidated financial statements (including the footnotes thereto) of the
Borrower referred to in Section 3.4 for its 2000 fiscal year.
SECTION 3.6. [RESERVED].
SECTION 3.7. COPYRIGHTS, PATENTS AND OTHER RIGHTS.
Each of the Borrower and its Subsidiaries owns, or is licensed
to use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.8. TITLE TO PROPERTIES.
Each of the Borrower and its Material Subsidiaries will have
at the Closing Date good title or valid leasehold interests to each of the
properties and assets reflected on the balance sheets referred to in Section
3.4, except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for
their intended purposes, and all such properties and assets will be free and
clear of Liens, except Permitted Encumbrances.
SECTION 3.9. LITIGATION.
Except as set forth on Schedule 3.9, there are no lawsuits or
other proceedings pending (including, but not limited to, matters relating to
environmental liability), or, to the knowledge of the Borrower, threatened,
against or affecting the Borrower or any of its Subsidiaries or any of their
respective properties, by or before any Governmental Authority or arbitrator,
which could reasonably be expected to have a Material Adverse Effect. Neither
the Borrower nor any of its Subsidiaries is in default with respect to any
order, writ, injunction, decree, rule or regulation of any Governmental
Authority, which default would have a Material Adverse Effect.
SECTION 3.10. FEDERAL RESERVE REGULATIONS.
Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans will be used, whether immediately, incidentally or
ultimately, for any purpose violative of or inconsistent with any of the
provisions of Regulation T, U or X of the Board.
SECTION 3.11. INVESTMENT COMPANY ACT.
The Borrower is not, and will not during the term of this
Agreement be, (x) an "investment company", within the meaning of the Investment
Company Act of 1940, as amended or (y) subject to regulation under the Public
Utility Holding Company Act of 1935 or the Federal Power Act.
SECTION 3.12. ENFORCEABILITY.
This Agreement and the other Fundamental Documents when
executed will constitute legal, valid and enforceable obligations (as
applicable) of the Borrower (subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally and
to general principles of equity).
SECTION 3.13. TAXES.
The Borrower and each of its Subsidiaries has filed or caused
to be filed all federal, state and local tax returns which are required to be
filed, and has paid or has caused to be paid all taxes as shown on said returns
or on any assessment received by them in writing, to the extent that such taxes
have become due, except (a) as permitted by Section 5.4 hereof or (b) to the
extent that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.14. COMPLIANCE WITH ERISA.
Each of the Borrower and its Subsidiaries is in compliance in
all material respects with the provisions of ERISA and the Code applicable to
Plans, and the regulations and published interpretations thereunder, if any,
which are applicable to it. Neither the Borrower nor any of its Subsidiaries
has, with respect to any Plan established or maintained by it, engaged in a
prohibited transaction which would subject it to a material tax or penalty on
prohibited transactions imposed by ERISA or Section 4975 of the Code. No
liability to the PBGC that is material to the Borrower and its Subsidiaries
taken as a whole has been, or to the Borrower's best knowledge is reasonably
expected to be, incurred with respect to the Plans and there has been no
Reportable Event and no other event or condition that presents a material risk
of termination of a Plan by the PBGC. Neither the Borrower nor any of its
Subsidiaries has engaged in a transaction which would result in the incurrence
of a material liability under Section 4069 of ERISA. As of the Closing Date,
neither the Borrower nor any of its Subsidiaries contributes to a Multiemployer
Plan, and has not incurred any liability that would be material to the Borrower
and its Subsidiaries taken as a whole on account of a partial or complete
withdrawal (as defined in Sections 4203 and 4205 of ERISA, respectively) with
respect to any Multiemployer Plan.
SECTION 3.15. DISCLOSURE.
As of the Closing Date, neither this Agreement nor the
Confidential Information Memorandum dated September 2001, at the time it was
furnished, contained any untrue statement of a material fact or omitted to state
a material fact, under the circumstances under which it was made, necessary in
order to make the statements contained herein or therein not misleading. At the
Closing Date, there is no fact known to the Borrower which, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect. The Borrower has delivered to the Administrative Agent certain
projections relating to the Borrower and its Consolidated Subsidiaries. Such
projections are based on good faith estimates and assumptions believed to be
reasonable at the time made, PROVIDED, HOWEVER, that the Borrower makes no
representation or warranty that such assumptions will prove in the future to be
accurate or that the Borrower and its Consolidated Subsidiaries will achieve the
financial results reflected in such projections.
SECTION 3.16. ENVIRONMENTAL LIABILITIES.
Except with respect to any matters, that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
4. CONDITIONS OF LENDING
SECTION 4.1. CONDITIONS PRECEDENT TO CLOSING.
The effectiveness of this Agreement is subject to the
following conditions precedent:
(a) LOAN DOCUMENTS. The Administrative Agent shall have
received this Agreement and each of the other Fundamental Documents, each
executed and delivered by a duly authorized officer of the Borrower.
(b) CORPORATE DOCUMENTS FOR THE BORROWER. The Administrative
Agent shall have received, with copies for each of the Lenders, a certificate of
the Secretary or Assistant Secretary of the Borrower dated the date of the
initial Loans and certifying (A) that attached thereto is a true and complete
copy of the certificate of incorporation and by-laws of the Borrower as in
effect on the date of such certification; (B) that attached thereto is a true
and complete copy of resolutions adopted by the Board of Directors of the
Borrower authorizing the borrowings hereunder and the execution, delivery and
performance in accordance with their respective terms of this Agreement and any
other documents required or contemplated hereunder; and (C) as to the incumbency
and specimen signature of each officer of the Borrower executing this Agreement
or any other document delivered by it in connection herewith (such certificate
to contain a certification by another officer of the Borrower as to the
incumbency and signature of the officer signing the certificate referred to in
this paragraph (b)).
(c) FINANCIAL STATEMENTS. The Lenders shall have received the
(a) audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries as of December 31, 1999 and December 31, 2000 and (b)
unaudited consolidated financial statements of the Borrower and its Consolidated
Subsidiaries as of March 31, 2001 and June 30, 2001.
(d) OPINIONS OF COUNSEL. The Administrative Agent shall have
received the favorable written opinions, dated the date of the initial Extension
of Credit and addressed to the Administrative Agent and the Lenders, of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Borrower, substantially in the
form of Exhibit B hereto.
(e) NO MATERIAL ADVERSE CHANGE. The Administrative Agent shall
be satisfied that since December 31, 2000 no events and conditions have occurred
that have had, or could reasonably be expected to have, a Material Adverse
Effect.
(f) PAYMENT OF FEES. The Administrative Agent shall be
satisfied that all amounts payable to the Administrative Agent and the other
Lenders pursuant hereto or with regard to the transactions contemplated hereby
have been or are simultaneously being paid.
(g) LITIGATION; APPROVAL. No litigation shall be pending or
threatened which would be likely to have a Material Adverse Effect, or which
could reasonably be expected to materially adversely affect the ability of the
Borrower to fulfill its obligations hereunder or to otherwise materially impair
the interests of the Lenders.
(h) EXISTING
CREDIT AGREEMENTS. (a) All obligations of the
Borrower under the $750 million Five Year Competitive Advance and Revolving
Credit Agreement, dated as of October 2, 1996, as amended, among the Borrower,
the lenders named therein and The Chase Manhattan Bank, as administrative agent
(the "EXISTING REVOLVING
CREDIT AGREEMENT") shall have been paid in full and the
commitments of the lenders pursuant to the Existing Revolving
Credit Agreement
shall have been terminated; and (b) all obligations of the Borrower and any
Subsidiary of the Borrower under the $450 million
Credit Agreement, dated as of
June 30, 1999, as amended, among Avis Rent A Car, Inc., the lenders named
therein and The Chase Manhattan Bank, as administrative agent (the "EXISTING
AVIS
CREDIT AGREEMENT") shall have been paid in full and the commitments of the
lenders pursuant to the Existing Avis Credit Agreement shall have been
terminated
(i) OFFICER'S CERTIFICATE. The Administrative Agent shall have
received a certificate of the Borrower's chief executive officer or chief
financial officer certifying, as of the Closing Date, compliance with the
conditions set forth in paragraphs (b) and (c) of Section 4.2.
(j) OTHER DOCUMENTS. The Administrative Agent shall have
received such other documents and certificates as the Administrative Agent may
reasonably require.
SECTION 4.2. CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT.
The obligation of the Lenders to make each Loan and of any
Issuing Lender to issue a Letter of Credit, including the initial Extension of
Credit hereunder, is subject to the following conditions precedent:
(a) NOTICE. The Administrative Agent shall have received a
notice with respect to such Borrowing or Letter of Credit as required by Article
2 hereof.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in Article 3 hereof (other than those set forth in Section
3.5, which shall be deemed made only on the Closing Date) and in the other
Fundamental Documents shall be true and correct in all material respects on and
as of the date of each Borrowing hereunder (except to the extent that such
representations and warranties expressly relate to an earlier date) with the
same effect as if made on and as of such date; provided, however, that this
condition shall not apply to a Revolving Credit Borrowing which is solely
refinancing outstanding Revolving Credit Loans and which, after giving effect
thereto, has not increased the aggregate amount of outstanding Revolving Credit
Loans.
(c) NO EVENT OF DEFAULT. On the date of each Borrowing or the
issuance of a Letter of Credit hereunder, the Borrower shall be in material
compliance with all of the terms and provisions set forth herein to be observed
or performed and no Event of Default or Default shall have occurred and be
continuing; provided, however, that this condition shall not apply to a
Revolving Credit Borrowing which is solely refinancing outstanding Revolving
Credit Loans and which, after giving effect thereto, has not increased the
aggregate amount of outstanding Revolving Credit Loans.
Each Borrowing or issuance of a Letter of Credit shall be deemed to be a
representation and warranty by the Borrower on the date of such Borrowing or
Letter of Credit as to the matters specified in paragraphs (b) and (c) of this
Section.
5. AFFIRMATIVE COVENANTS
From the date of the initial Loan and for so long as the
Commitments shall be in effect or any amount shall remain outstanding under any
Note or unpaid under this Agreement or there shall be any outstanding L/C
Exposure, the Borrower agrees that, unless the Required Lenders shall otherwise
consent in writing, it will, and will cause each of its Subsidiaries to:
SECTION 5.1. FINANCIAL STATEMENTS, REPORTS, ETC.
Deliver to each Lender:
(a) As soon as is practicable, but in any event within 100
days after the end of each fiscal year of the Borrower, the audited consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as at the end
of, and the related consolidated statements of income, shareholders' equity and
cash flows for such year, and the corresponding figures as at the end of, and
for, the preceding fiscal year, accompanied by an opinion of Deloitte & Touche
LLP or such other independent certified public accountants of recognized
standing as shall be retained by the Borrower and satisfactory to the
Administrative Agent, which report and opinion shall be prepared in accordance
with generally accepted auditing standards relating to reporting and which
report and opinion shall (A) be unqualified as to going concern and scope of
audit and shall state that such financial statements fairly present the
financial condition of the Borrower and its Consolidated Subsidiaries, as at the
dates indicated and the results of the operations and cash flows for the periods
indicated and (B) contain no material exceptions or qualifications except for
qualifications relating to accounting changes (with which such independent
public accountants concur) in response to FASB releases or other authoritative
pronouncements;
(b) As soon as is practicable, but in any event within 55 days
after the end of each of the first three fiscal quarters of each fiscal year,
the unaudited consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries, as at the end of, and the related unaudited statements of income
(or changes in financial position) for such quarter and for the period from the
beginning of the then current fiscal year to the end of such fiscal quarter and
the corresponding figures as at the end of, and for, the corresponding period in
the preceding fiscal year, together with a certificate signed by the chief
financial officer or a vice president responsible for financial administration
of the Borrower to the effect that such financial
statements, while not examined by independent public accountants, reflect, in
his opinion and in the opinion of the Borrower, all adjustments necessary to
present fairly the financial position of the Borrower and its Consolidated
Subsidiaries, as the case may be, as at the end of the fiscal quarter and the
results of their operations for the quarter then ended in conformity with GAAP
consistently applied, subject only to year-end and audit adjustments and to the
absence of footnote disclosure;
(c) Together with the delivery of the statements referred to
in paragraphs (a) and (b) of this Section 5.1, a certificate of the chief
financial officer or a vice president responsible for financial administration
of the Borrower, substantially in the form of Exhibit D hereto (i) stating
whether or not the signer has knowledge of any Default or Event of Default and,
if so, specifying each such Default or Event of Default of which the signer has
knowledge, the nature thereof and any action which the Borrower has taken, is
taking, or proposes to take with respect to each such condition or event and
(ii) demonstrating in reasonable detail compliance with the provisions of
Sections 6.7 and 6.8 hereof;
(d) INTENTIONALLY OMITTED;
(e) Promptly upon any executive officer of the Borrower or any
of its Subsidiaries obtaining knowledge of the occurrence of any Default or
Event of Default, a certificate of the president or chief financial officer of
the Borrower specifying the nature and period of existence of such Default or
Event of Default and what action the Borrower has taken, is taking and proposes
to take with respect thereto;
(f) Promptly upon any executive officer of the Borrower or any
of its Subsidiaries obtaining knowledge of (i) the institution of any action,
suit, proceeding, investigation or arbitration by any Governmental Authority or
other Person against or affecting the Borrower or any of its Subsidiaries or any
of their assets, or (ii) any material development in any such action, suit,
proceeding, investigation or arbitration (whether or not previously disclosed to
the Lenders), which, in each case might reasonably be expected to have a
Material Adverse Effect, the Borrower shall promptly give notice thereof to the
Lenders and provide such other information as may be reasonably available to it
(without waiver of any applicable evidentiary privilege) to enable the Lenders
to evaluate such matters;
(g) With reasonable promptness, such other information,
certificates and data with respect to the Borrower and its Subsidiaries as from
time to time may be reasonably requested by any of the Lenders; and
(h) Together with each set of financial statements required by
paragraph (a) above, a certificate of the independent certified public
accountants rendering the report and opinion thereon (which certificate may be
limited to the extent required by accounting rules or otherwise) (i) stating
whether, in connection with their audit, any Default or Event of Default has
come to their attention, and if such a Default or Event of Default has come to
their attention, specifying the nature and period of existence thereof, and (ii)
stating that based on their audit nothing has come to their attention which
causes them to believe that the matters specified in
paragraph (c)(ii) above for the applicable fiscal year are not stated in
accordance with the terms of this Agreement.
SECTION 5.2. CORPORATE EXISTENCE; COMPLIANCE WITH STATUTES.
Do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its corporate existence, material rights,
licenses, permits and franchises and comply, except where failure to comply,
either individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, with all provisions of Applicable Law, and
all applicable restrictions imposed by, any Governmental Authority, including
without limitation, the Federal Trade Commission's "Disclosure Requirements and
Prohibitions Concerning Franchising and Business Opportunity Ventures" as
amended from time to time (16 C.F.R. ▇▇.▇▇. 436.1 ET SEQ.) and all state laws
and regulations of similar import; PROVIDED, HOWEVER, that mergers, dissolutions
and liquidations permitted under Section 6.4 shall be permitted.
SECTION 5.3. INSURANCE.
Maintain with financially sound and reputable insurers
insurance in such amounts and against such risks as are customarily insured
against by companies in similar businesses; provided however, that (a) workmen's
compensation insurance or similar coverage may be effected with respect to its
operations in any particular state or other jurisdiction through an insurance
fund operated by such state or jurisdiction and (b) such insurance may contain
self-insurance retention and deductible levels consistent with normal industry
practices.
SECTION 5.4. TAXES AND CHARGES.
Duly pay and discharge, or cause to be paid and discharged,
before the same shall become delinquent, all federal, state or local taxes,
assessments, levies and other governmental charges, imposed upon the Borrower or
any of its Subsidiaries or their respective properties, sales and activities, or
any part thereof, or upon the income or profits therefrom, as well as all claims
for labor, materials, or supplies which if unpaid could reasonably be expected
to result in a Material Adverse Effect; PROVIDED, HOWEVER, that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower shall have set aside on its books reserves (the presentation
of which is segregated to the extent required by GAAP) adequate with respect
thereto if reserves shall be deemed necessary by the Borrower in accordance with
GAAP; and PROVIDED, FURTHER, that the Borrower will pay all such taxes,
assessments, levies or other governmental charges forthwith upon the
commencement of proceedings to foreclose any Lien which may have attached as
security therefor (unless the same is fully bonded or otherwise effectively
stayed).
SECTION 5.5. ERISA COMPLIANCE AND REPORTS.
Furnish to the Administrative Agent (a) as soon as possible,
and in any event within 30 days after any executive officer (as defined in
Regulation C under the Securities Act of 1933) of the Borrower knows that (i)
any Reportable Event with respect to any Plan has
occurred, a statement of the chief financial officer of the Borrower, setting
forth details as to such Reportable Event and the action which it proposes to
take with respect thereto, together with a copy of the notice, if any, required
to be filed by the Borrower or any of its Subsidiaries of such Reportable Event
with the PBGC or (ii) an accumulated funding deficiency has been incurred or an
application has been made to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard or an extension of any amortization
period under Section 412 of the Code with respect to a Plan, a Plan has been or
is proposed to be terminated in a "distress termination" (as defined in Section
4041(c) of ERISA), proceedings have been instituted to terminate a Plan or a
Multiemployer Plan, a proceeding has been instituted to collect a delinquent
contribution to a Plan or a Multiemployer Plan, or either the Borrower or any of
its Subsidiaries will incur any liability (including any contingent or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Sections 4062, 4063, 4064 of ERISA or the withdrawal or partial withdrawal
from a Multiemployer Plan under Sections 4201 or 4204 of ERISA, a statement of
the chief financial officer of the Borrower, setting forth details an to such
event and the action it proposes to take with respect thereto, (b) promptly upon
the reasonable request of the Administrative Agent, copies of each annual and
other report with respect to each Plan and (c) promptly after receipt thereof, a
copy of any notice the Borrower or any of its Subsidiaries may receive from the
PBGC relating to the PBGC's intention to terminate any Plan or to appoint a
trustee to administer any Plan; PROVIDED that the Borrower shall not be required
to notify the Administrative Agent of the occurrence of any of the events set
forth in the preceding clauses (a) and (c) unless such event, individually or in
the aggregate, could reasonably be expected to result in a material liability to
the Borrower and its Subsidiaries taken as a whole.
SECTION 5.6. MAINTENANCE OF AND ACCESS TO BOOKS AND RECORDS;
EXAMINATIONS.
Maintain or cause to be maintained at all times true and
complete books and records of its financial operations (in accordance with GAAP)
and provide the Administrative Agent and its representatives reasonable access
to all such books and records and to any of their properties or assets during
regular business hours, in order that the Administrative Agent may make such
audits and examinations and make abstracts from such books, accounts and records
and may discuss the affairs, finances and accounts with, and be advised as to
the same by, officers and independent accountants, all as the Administrative
Agent may deem appropriate for the purpose of verifying the various reports
delivered pursuant to this Agreement or for otherwise ascertaining compliance
with this Agreement.
SECTION 5.7. MAINTENANCE OF PROPERTIES.
Keep its properties which are material to its business in good
repair, working order and condition consistent with industry practice.
SECTION 5.8. CHANGES IN CHARACTER OF BUSINESS.
Cause the Borrower and its Subsidiaries taken as a whole to be
primarily engaged in the franchising and services businesses.
6. NEGATIVE COVENANTS
From the date of the initial Loan and for so long as the
Commitments shall be in effect or any amount shall remain outstanding under any
Note or unpaid under this Agreement or there shall be any outstanding L/C
Exposure, unless the Required Lenders shall otherwise consent in writing, the
Borrower agrees that it will not, nor will it permit any of its Subsidiaries to,
directly or indirectly:
SECTION 6.1. LIMITATION ON INDEBTEDNESS.
Incur, assume or suffer to exist any Indebtedness of any
Material Subsidiary except:
(a) Indebtedness in existence on the Closing Date, or required
to be incurred pursuant to a contractual obligation in existence on the Closing
Date, which in either case, is listed on Schedule 6.1 hereto, but not any
extensions or renewals thereof, unless effected on substantially the same terms
or on terms not more adverse to the Lenders;
(b) purchase money Indebtedness (including Capital Leases) to
the extent permitted under Section 6.5(b);
(c) Guaranties;
(d) Indebtedness owing by any Material Subsidiary to the
Borrower or any other Subsidiary;
(e) Indebtedness of any Material Subsidiary of the Borrower
issued and outstanding prior to the date on which such Subsidiary became a
Subsidiary of the Borrower (other than Indebtedness issued in connection with,
or in anticipation of, such Subsidiary becoming a Subsidiary of the Borrower);
provided that immediately prior and on a Pro Forma Basis after giving effect to,
such Person becoming a Subsidiary of the Borrower, no Default or Event of
Default shall occur or then be continuing and the aggregate principal amount of
such Indebtedness, when added to the aggregate outstanding principal amount of
Indebtedness permitted by paragraphs (f) and (g) below, shall not exceed
$400,000,000;
(f) any renewal, extension or modification of Indebtedness
under paragraph (e) above so long (i) as such renewal, extension or modification
is effected on substantially the same terms or on terms which, in the aggregate,
are not more adverse to the Lenders and (ii) the principal amount of such
Indebtedness is not increased;
(g) other Indebtedness of any Material Subsidiary in an
aggregate principal amounts which, when added to the aggregate outstanding
principal amount of Indebtedness permitted by paragraphs (e) and (f) above, does
not exceed $400,000,000; and
(h) any Indebtedness (other than Avis Securitization
Indebtedness) of Avis or its Subsidiaries issued, outstanding or permitted to
exist pursuant to the terms of the Avis Debt Documents as of the date of the
Avis Merger and any renewal, extension or modification of such
Indebtedness so long as (i) such renewal, extension or modification is effected
on substantially the same terms or on terms which, in the aggregate, are not
more adverse to the Lenders and (ii) the principal amount of such Indebtedness
issued, outstanding or permitted to exist pursuant to the terms of the Avis Debt
Documents is not increased directly or indirectly;
(i) any Avis Securitization Indebtedness;
(j) any Indebtedness (other than Timeshare Loan Indebtedness)
of any Timeshare Subsidiary, to the extent issued, outstanding or permitted to
exist pursuant to the terms of any Fairfield Debt Documents as of the date of
the Fairfield Merger, or to the extent issued, outstanding or permitted to exist
pursuant to the terms of any other Timeshare Debt Documents as of the date of
the acquisition of the related Timeshare Subsidiary; and, in each case, any
renewal, extension or modification of such Indebtedness so long as (i) such
renewal, extension or modification is effected on substantially the same terms
or on terms which, in the aggregate, are not more adverse to the Lenders and
(ii) the principal amount of such Indebtedness issued, outstanding or permitted
to exist pursuant to the terms of the Fairfield Debt Documents or Timeshare Debt
Documents, as applicable, is not increased directly or indirectly;
(k) any Timeshare Loan Indebtedness;
(l) without limiting any of the foregoing, Indebtedness
incurred in connection with the acquisition by Avis or any of its Subsidiaries
of vehicles directly from a manufacturer pursuant to such manufacturer's
repurchase program, PROVIDED that (i) such Indebtedness is not greater than the
net book value of such vehicles and (ii) such vehicles could not be financed
under the AESOP Financing Program; and
(m) in addition to the Indebtedness permitted by paragraphs
(a) - (l) above, Indebtedness of PHH and its Subsidiaries so long as, after
giving effect to the incurrence of such Indebtedness and the use of the proceeds
thereof, the ratio of Indebtedness (other than Avis Securitization Indebtedness
and Timeshare Loan Indebtedness) of PHH and its Subsidiaries to consolidated
shareholders' equity of PHH is less than 8 to 1.
SECTION 6.2. INTENTIONALLY OMITTED.
SECTION 6.3. HOTEL SUBSIDIARIES.
No Hotel Subsidiary shall incur or suffer to exist any
obligation to advance money to purchase securities from, or otherwise make any
investment in, any Person engaged in the gaming business, PROVIDED that any
Hotel Subsidiary may make any such investment in any such Person so long as such
Person does not become a Material Subsidiary as a result thereof.
SECTION 6.4. CONSOLIDATION, MERGER, SALE OF ASSETS.
(a) Neither the Borrower nor any of its Material Subsidiaries
(in one transaction or series of transactions) will wind up, liquidate or
dissolve its affairs, or enter into any transaction of merger or consolidation,
except any merger, consolidation, dissolution or liquidation (i) in which the
Borrower is the surviving entity or if the Borrower is not a party to
such transaction then a Subsidiary is the surviving entity or the successor to
the Borrower has unconditionally assumed in writing all of the payment and
performance obligations of the Borrower under this Agreement and the other
Fundamental Documents, (ii) in which the surviving entity becomes a Subsidiary
of the Borrower immediately upon the effectiveness of such merger,
consolidation, dissolution or liquidation, or (iii) involving a Subsidiary in
connection with a transaction permitted by Section 6.4(b); provided, however,
that immediately prior to and on a Pro Forma Basis after giving effect to any
such transaction described in any of the preceding clauses (i), (ii) and (iii)
no Default or Event of Default has occurred and is continuing.
(b) The Borrower and its Subsidiaries (either individually or
collectively and whether in one transaction or series of related transactions)
will not sell or otherwise dispose of all or substantially all of the assets of
the Borrower and its Subsidiaries, taken as a whole.
SECTION 6.5. LIMITATIONS ON LIENS.
Suffer any Lien on the property of the Borrower or any of the
Material Subsidiaries, except:
(a) deposits under worker's compensation, unemployment
insurance and social security laws or to secure statutory obligations or surety
or appeal bonds or performance or other similar bonds in the ordinary course of
business, or statutory Liens of landlords, carriers, warehousemen, mechanics and
material men and other similar Liens, in respect of liabilities which are not
yet due or which are being contested in good faith, Liens for taxes not yet due
and payable, and Liens for taxes due and payable, the validity or amount of
which is currently being contested in good faith by appropriate proceedings and
as to which foreclosure and other enforcement proceedings shall not have been
commenced (unless fully bonded or otherwise effectively stayed);
(b) purchase money Liens granted to the vendor or Person
financing the acquisition of property, plant or equipment if (i) limited to the
specific assets acquired and, in the case of tangible assets, other property
which is an improvement to or is acquired for specific use in connection with
such acquired property or which is real property being improved by such acquired
property; (ii) the debt secured by the Lien is the unpaid balance of the
acquisition cost of the specific assets on which the Lien is granted; and (iii)
such transaction does not otherwise violate this Agreement;
(c) Liens upon real and/or personal property, which property
was acquired after the date of this Agreement (by purchase, construction or
otherwise) by the Borrower or any of its Material Subsidiaries, each of which
Liens existed on such property before the time of its acquisition and was not
created in anticipation thereof; provided, however, that no such Lien shall
extend to or cover any property of the Borrower or such Material Subsidiary
other than the respective property so acquired and improvements thereon;
(d) Liens arising out of attachments, judgments or awards as
to which an appeal or other appropriate proceedings for contest or review are
promptly commenced (and as
to which foreclosure and other enforcement proceedings (i) shall not have been
commenced (unless fully bonded or otherwise effectively stayed) or (ii) in any
event shall be promptly fully bonded or otherwise effectively stayed);
(e) Liens created under any Fundamental Document;
(f) Liens existing on the date hereof and any extensions or
renewals thereof;
(g) INTENTIONALLY OMITTED;
(h) INTENTIONALLY OMITTED; and
(i) other Liens securing obligations having an aggregate
principal amount not to exceed 15% of Consolidated Net Worth.
(j) any Liens securing Indebtedness and related obligations of
the Borrower or any of its Material Subsidiaries to the extent such Indebtedness
and related obligations are permitted under Section 6.1(h) hereof
(k) any Liens securing Indebtedness and related obligations of
the Borrower or any of its Material Subsidiaries to the extent such Indebtedness
and related obligations are permitted under Section 6.1(i) hereof.
(l) any Liens securing Indebtedness and related obligations of
the Borrower or any of its Material Subsidiaries to the extent such Indebtedness
and related obligations are permitted under Section 6.1(j) hereof.
(m) any Liens securing Indebtedness and related obligations of
the Borrower or any of its Material Subsidiaries to the extent such Indebtedness
and related obligations are permitted under Section 6.1(k) hereof.
SECTION 6.6. SALE AND LEASEBACK.
Enter into any arrangement with any Person or Persons, whereby
in contemporaneous transactions the Borrower or any of its Subsidiaries sells
essentially all of its right, title and interest in a material asset and the
Borrower or any of its Subsidiaries acquires or leases back the right to use
such property except that the Borrower and its Subsidiaries may enter into
sale-leaseback transactions relating to assets not in excess of $200,000,000 in
the aggregate on a cumulative basis, and except (a) any arrangements of
Fairfield or any of its Subsidiaries existing as of the date of the Fairfield
Merger and any renewals, extensions or modifications thereof, or replacements or
substitutions therefor, so long as such renewals, extensions or modifications
are effected on substantially the same terms or on terms which, in the
aggregate, are not more adverse to the Lenders in any material respect, (b) in
connection with the issuance of Avis Securitization Indebtedness and (c) in
connection with the issuance of Timeshare Loan Indebtedness.
SECTION 6.7. DEBT TO CAPITALIZATION RATIO.
Permit the Debt to Capitalization Ratio on the last day of any
fiscal quarter to be greater than 0.5 to 1.
SECTION 6.8. INTEREST COVERAGE RATIO.
Permit the Interest Coverage Ratio for any Rolling Period to
be less than 3.0 to 1.0.
SECTION 6.9. ACCOUNTING PRACTICES.
Establish a fiscal year ending on other than December 31, or
modify or change accounting treatments or reporting practices except as
otherwise required or permitted by GAAP.
7. EVENTS OF DEFAULT
In the case of the happening and during the continuance of any
of the following events (herein called "EVENTS OF DEFAULT"):
(a) any representation or warranty made by the Borrower in
this Agreement or any other Fundamental Document or in connection with this
Agreement or with the execution and delivery of the Notes or the Borrowings
hereunder, or any statement or representation made in any report, financial
statement, certificate or other document furnished by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or any Lender
under or in connection with this Agreement, shall prove to have been false or
misleading in any material respect when made or delivered;
(b) default shall be made in the payment of any principal of
or interest on any Loan, any reimbursement obligation with respect to Letters of
Credit, the Notes or of any fees or other amounts payable by the Borrower
hereunder, when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise, and in the case of payments of interest, such default
shall continue unremedied for five days, and in the case of payments other than
of any principal amount of or interest on any Loan, any reimbursement obligation
with respect to Letters of Credit, or the Notes, such default shall continue
unremedied for five days after receipt by the Borrower of an invoice therefor;
(c) default shall be made in the due observance or performance
of any covenant, condition or agreement contained in Section 5.1(e) (with
respect to notice of Default or Events of Default), 5.8 or Article 6 of this
Agreement;
(d) default shall be made by the Borrower in the due
observance or performance of any other covenant, condition or agreement to be
observed or performed pursuant to the terms of this Agreement, or any other
Fundamental Document and such default shall continue unremedied for thirty (30)
days after the Borrower obtains knowledge of such occurrence;
(e) (i) default in payment shall be made with respect to any
Indebtedness of the Borrower or any of its Subsidiaries where the amount or
amounts of such Indebtedness exceeds $50,000,000 in the aggregate; or (ii)
default in payment or performance shall be made with respect to any Indebtedness
of the Borrower or any of its Subsidiaries where the amount or amounts of such
Indebtedness exceeds $50,000,000 in the aggregate, if the effect of such default
is to result in the acceleration of the maturity of such Indebtedness; or (iii)
any other circumstance shall arise (other than the mere passage of time) by
reason of which the Borrower or any Subsidiary of the Borrower is required to
redeem or repurchase, or offer to holders the opportunity to have redeemed or
repurchased, any such Indebtedness where the amount or amounts of such
Indebtedness exceeds $50,000,000 in the aggregate; provided that clause (iii)
shall not apply to secured Indebtedness that becomes due as a result of a
voluntary sale of the property or assets securing such Indebtedness and
provided, further clauses (ii) and (iii) shall not apply to any Indebtedness of
any Subsidiary issued and outstanding prior to the date such Subsidiary became a
Subsidiary of the Borrower (other than Indebtedness issued in connection with,
or in anticipation of, such Subsidiary becoming a Subsidiary of the Borrower) if
such default or circumstance arises solely as a result of a "change of control"
provision applicable to such Indebtedness which becomes operative as a result of
the acquisition of such Subsidiary by the Borrower or any of its Subsidiaries;
(f) the Borrower or any of its Material Subsidiaries shall
generally not pay its debts as they become due or shall admit in writing its
inability to pay its debts, or shall make a general assignment for the benefit
of creditors; or the Borrower or any of its Material Subsidiaries shall commence
any case, proceeding or other action seeking to have an order for relief entered
on its behalf as debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition
of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property or shall file an answer or other pleading in
any such case, proceeding or other action admitting the material allegations of
any petition, complaint or similar pleading filed against it or consenting to
the relief sought therein; or the Borrower or any Material Subsidiary thereof
shall take any action to authorize any of the foregoing;
(g) any involuntary case, proceeding or other action against
the Borrower or any of its Material Subsidiaries shall be commenced seeking to
have an order for relief entered against it as debtor or to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts under any law
relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property, and such case,
proceeding or other action (i) results in the entry of any order for relief
against it or (ii) shall remain undismissed for a period of sixty (60) days;
(h) the occurrence of a Change in Control;
(i) final judgment(s) for the payment of money in excess of
$50,000,000 shall be rendered against the Borrower or any of its Subsidiaries
which within thirty (30) days from the entry of such judgment shall not have
been discharged or stayed pending appeal or which
shall not have been discharged within thirty (30) days from the entry of a final
order of affirmance on appeal (other than the final judgment(s) rendered to give
effect to the Settlement); or
(j) a Reportable Event relating to a failure to meet minimum
funding standards or an Inability to pay benefits when due shall have occurred
with respect to any Plan under the control of the Borrower or any of its
Subsidiaries and shall not have been remedied within 45 days after the
occurrence of such Reportable Event, if the occurrence thereof could reasonably
be expected to have a Material Adverse Effect;
then, in every such event and at any time thereafter during the continuance of
such event, the Administrative Agent may or shall, if directed by the Required
Lenders, take either or both of the following actions, at the same or different
times: terminate forthwith the Commitments and/or declare the principal of and
the interest on the Loans and the Notes and all other amounts payable hereunder
or thereunder to be forthwith due and payable, whereupon the same shall become
and be forthwith due and payable, without presentment, demand, protest, notice
of acceleration, notice of intent to accelerate or other notice of any kind, all
of which are hereby expressly waived, anything in this Agreement or in the Notes
to the contrary notwithstanding. If an Event of Default specified in paragraphs
(f) or (g) above shall have occurred, the principal of and interest on the Loans
and the Notes and all other amounts payable hereunder or thereunder shall
thereupon and concurrently become due and payable without presentment, demand,
protest, notice of acceleration, notice of intent to accelerate or other notice
of any kind, all of which are hereby expressly waived, anything in this
Agreement or the Notes to the contrary notwithstanding and the Commitments of
the Lenders shall thereupon forthwith terminate.
8. THE ADMINISTRATIVE AGENT AND EACH ISSUING LENDER
SECTION 8.1. ADMINISTRATION BY ADMINISTRATIVE AGENT.
The general administration of the Fundamental Documents and
any other documents contemplated by this Agreement shall be by the
Administrative Agent or its designees. Each of the Lenders hereby irrevocably
authorizes the Administrative Agent, at its discretion, to take or refrain from
taking such actions as agent on its behalf and to exercise or refrain from
exercising such powers under the Fundamental Documents, the Notes and any other
documents contemplated by this Agreement as are delegated by the terms hereof or
thereof, as appropriates together with all powers reasonably incidental thereto.
The Administrative Agent shall have no duties or responsibilities except as set
forth in the Fundamental Documents. Any Lender which is not the Administrative
Agent (regardless of whether such Lender bears the title co-agent, syndication
agent, documentation agent or any similar title, as indicated on the signature
pages hereto) for the credit facility hereunder shall not have any duties or
responsibilities except as a Lender hereunder.
SECTION 8.2. ADVANCES AND PAYMENTS.
(a) On the date of each Loan, the Administrative Agent shall
be authorized (but not obligated) to advance, for the account of each of the
Lenders, the amount of the Loan to
be made by it in accordance with this Agreement. Each of the Lenders hereby
authorizes and requests the Administrative Agent to advance for its account,
pursuant to the terms hereof, the amount of the Loan to be made by it, unless
with respect to any Lender, such Lender has theretofore specifically notified
the Administrative Agent that such Lender does not intend to fund that
particular Loan. Each of the Lenders agrees forthwith to reimburse the
Administrative Agent in immediately available funds for the amount so advanced
on its behalf by the Administrative Agent pursuant to the immediately preceding
sentence. If any such reimbursement is not made in immediately available funds
on the same day on which the Administrative Agent shall have made any such
amount available on behalf of any Lender in accordance with this Section 8.2,
such Lender shall pay interest to the Administrative Agent at a rate per annum
equal to the Administrative Agent's cost of obtaining overnight funds in the New
York Federal Funds Market. Notwithstanding the preceding sentence, if such
reimbursement is not made by the second Business Day following the day on which
the Administrative Agent shall have made any such amount available on behalf of
any Lender or such Lender has indicated that it does not intend to reimburse the
Administrative Agent, the Borrower shall immediately pay such unreimbursed
advance amount (plus any accrued, but unpaid interest at the rate applicable to
ABR Loans) to the Administrative Agent.
(b) Any amounts received by the Administrative Agent in
connection with this Agreement or the Notes the application of which is not
otherwise provided for shall be applied, in accordance with each of the Lenders'
pro rata interest therein, first, to pay accrued but unpaid Facility Fees and
Utilization Fees, second, to pay accrued but unpaid interest on the Notes,
third, the principal balance outstanding on the Notes and fourth, to pay other
amounts payable to the Administrative Agent and/or the Lenders. All amounts to
be paid to any of the Lenders by the Administrative Agent shall be credited to
the Lenders, promptly after collection by the Administrative Agent, in
immediately available funds either by wire transfer or deposit in such Lender's
correspondent account with the Administrative Agent, or as such Lender and the
Administrative Agent shall from time to time agree.
SECTION 8.3. SHARING OF SETOFFS AND CASH COLLATERAL.
Each of the Lenders agrees that if it shall, through the
operation of Sections 2.19, 2.23(h) or 2.23(i) hereof or the exercise of a right
of bank's lien, setoff or counterclaim against the Borrower, including, but not
limited to, a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim and received by such Lender under any applicable bankruptcy, insolvency or
other similar law, or otherwise, obtain payment in respect of its Loans or L/C
Exposure as a result of which the unpaid portion of its Loans or L/C Exposure is
proportionately less than the unpaid portion of any of the other Lenders (a) it
shall promptly purchase at par (and shall be deemed to have thereupon purchased)
from such other Lenders a participation in the Loans or L/C Exposure of such
other Lenders, so that the aggregate unpaid principal amount of each of the
Lenders' Loans and L/C Exposure and its participation in Loans and L/C Exposure
of the other Lenders shall be in the same proportion to the aggregate unpaid
principal amount of all Loans and L/C Exposure then outstanding as the principal
amount of its Loans and L/C Exposure prior to the obtaining of such payment was
to the principal amount of all Loans and L/C Exposure outstanding prior to
the obtaining of such payment and (b) such other adjustments shall be made from
time to time as shall be equitable to ensure that the Lenders share such payment
pro rata.
SECTION 8.4. NOTICE TO THE LENDERS.
Upon receipt by the Administrative Agent from the Borrower of
any communication calling for an action on the part of the Lenders, or upon
notice to the Administrative Agent of any Event of Default, the Administrative
Agent will in turn immediately inform the other Lenders in writing (which shall
include telegraphic communications) of the nature of such communication or of
the Event of Default, as the case may be.
SECTION 8.5. LIABILITY OF ADMINISTRATIVE AGENT AND EACH
ISSUING LENDER.
(a) The Administrative Agent or any Issuing Lender, when
acting on behalf of the Lenders may execute any of its duties under this
Agreement by or through its officers, agents, or employees and neither the
Administrative Agent, the Issuing Lenders nor their respective directors,
officers, agents, or employees shall be liable to the Lenders or any of them for
any action taken or omitted to be taken in good faith, or be responsible to the
Lenders or to any of them for the consequences of any oversight or error of
judgment, or for any loss, unless the same shall happen through its gross
negligence or willful misconduct. The Administrative Agent, the Issuing Lenders
and their respective directors, officers, agents, and employees shall in no
event be liable to the Lenders or to any of them for any action taken or omitted
to be taken by it pursuant to instructions received by it from the Required
Lenders or in reliance upon the advice of counsel selected by it. Without
limiting the foregoing, neither the Administrative Agent, the Issuing Lenders
nor any of their respective directors, officers, employees, or agents shall be
responsible to any of the Lenders for the due execution, validity, genuineness,
effectiveness, sufficiency, or enforceability of, or for any statement,
warranty, or representation in, or for the perfection of any security interest
contemplated by, this Agreement or any related agreement, document or order, or
for the designation or failure to designate this transaction as a "Highly
Leveraged Transaction" for regulatory purposes, or shall be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants, or agreements of this
Agreement or any related agreement or document.
(b) Neither the Administrative Agent, the Issuing Lenders, nor
any of their respective directors, officers, employees, or agents shall have any
responsibility to the Borrower on account of the failure or delay in performance
or breach by any of the Lenders or the Borrower of any of their respective
obligations under this Agreement or the Notes or any related agreement or
document or in connection herewith or therewith.
(c) The Administrative Agent, and the Issuing Lenders, in such
capacities hereunder, shall be entitled to rely on any communication,
instrument, or document reasonably believed by it to be genuine or correct and
to have been signed or sent by a Person or Persons believed by it to be the
proper Person or Persons, and it shall be entitled to rely on advice of legal
counsel, independent public accountants, and other professional advisers and
experts selected by it.
SECTION 8.6. REIMBURSEMENT AND INDEMNIFICATION.
Each of the Lenders severally and not jointly agrees (i) to
reimburse the Administrative Agent, in the amount of its proportionate share of
the Total Commitment in effect on the date on which such reimbursement is sought
(or, if reimbursement is sought after the date upon which the Total Commitment
shall have been terminated in its entirety, in the amount of its proportionate
share of the Total Commitment immediately prior to such date), for any expenses
and fees incurred for the benefit of the Lenders under the Fundamental
Documents, including, without limitation, counsel fees and compensation of
agents and employees paid for services rendered on behalf of the Lenders, and
any other expense incurred in connection with the administration or enforcement
thereof not reimbursed by the Borrower or one of its Subsidiaries; (ii) to
indemnify and hold harmless the Administrative Agent and any of its directors,
officers, employees, or agents, on demand, in the amount of its proportionate
share of the Total Commitment in effect on the date on which such
indemnification is sought (or, if indemnification is sought after the date upon
which the Total Commitment shall have been terminated in its entirety, in the
amount of its proportionate share of the Total Commitment immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against it or any of them in any way relating to or arising out of the
Fundamental Documents or any action taken or omitted by it or any of them under
the Fundamental Documents to the extent not reimbursed by the Borrower or one of
its Subsidiaries (except such as shall result from the gross negligence or
willful misconduct of the Person seeking indemnification); and (iii) to
indemnify and hold harmless the Issuing Lenders and any of their respective
directors, officers, employees, or agents or demand in the amount of its
proportionate share from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs expenses or
disbursements of any kind or nature whatever which may be imposed or incurred by
or asserted against it relating to or arising out of the issuance of any Letters
of Credit not reimbursed by the Borrower or one of its Subsidiaries (except such
as shall result from the gross negligence or willful misconduct of the Person
seeking indemnification).
SECTION 8.7. RIGHTS OF ADMINISTRATIVE AGENT.
It is understood and agreed that Chase shall have the same
rights and powers hereunder (including the right to give such instructions) as
the other Lenders and may exercise such rights and powers, as well as its rights
and powers under other agreements and instruments to which it is or may be
party, and engage in other transactions with the Borrower as though it were not
the Administrative Agent on behalf of the Lenders under this Agreement.
SECTION 8.8. INDEPENDENT INVESTIGATION BY LENDERS.
Each of the Lenders acknowledges that it has decided to enter
into this Agreement and to make the Loans and issue and participate in the
Letters of Credit hereunder based on its own analysis of the transactions
contemplated hereby and of the creditworthiness of the Borrower and agrees that
neither the Administrative Agent nor any Issuing Lender shall bear
responsibility therefor.
SECTION 8.9. NOTICE OF TRANSFER.
The Administrative Agent and the Issuing Lenders may deem and
treat any Lender which is a party to this Agreement as the owners of such
Lender's respective portions of the Loans and Letter of Credit reimbursement
rights for all purposes, unless and until a written notice of the assignment or
transfer thereof executed by any such Lender shall have been received by the
Administrative Agent and become effective pursuant to Section 9.3.
SECTION 8.10. SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a successor
Administrative Agent from among the Lenders. If no successor Administrative
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation, the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent, which with
the consent of the Borrower, which will not be unreasonably withheld, shall be a
commercial bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Article 8
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
SECTION 8.11. RESIGNATION OF AN ISSUING LENDER.
Any Issuing Lender may resign at any time by giving written
notice thereof to the Lenders and the Borrower. Upon any such resignation, such
Issuing Lender shall be discharged from any duties and obligations under this
Agreement in its capacity as an Issuing Lender with regard to Letters of Credit
not yet issued. After any retiring Issuing Lender's resignation hereunder as an
Issuing Lender, the provisions of this Agreement shall continue to inure to its
benefit as to any outstanding Letters of Credit or otherwise with regard to
outstanding L/C Exposure and any actions taken or omitted to be taken by it
while it was an Issuing Lender under this Agreement.
9. MISCELLANEOUS
SECTION 9.1. NOTICES.
Notices and other communications provided for herein shall be
in writing and shall be delivered or mailed (or in the case of telegraphic
communication, if by telegram, delivered to the telegraph company and, if by
telex, telecopy, graphic scanning or other
telegraphic communications equipment of the sending party hereto, delivered by
such equipment) addressed, if to the Administrative Agent or Chase, to it at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or if to the Borrower, to it at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer and ▇▇▇▇ ▇. ▇▇▇▇, Senior
Vice President and Corporate Secretary, with a copy to Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Four Times Square, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇,
or if to a Lender, to it at its address notified to the Administrative Agent (or
set forth in its Assignment and Acceptance or other agreement pursuant to which
it became a Lender hereunder), or such other address as such party may from time
to time designate by giving written notice to the other parties hereunder. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the fifth
Business Day after the date when sent by registered or certified mail, postage
prepaid, return receipt requested, if by mail, or when delivered to the
telegraph company, charges prepaid, if by telegram, or when receipt is
acknowledged, if by any telecopier or telegraphic communications equipment of
the sender, in each case addressed to such party as provided in this Section 9.1
or in accordance with the latest unrevoked written direction from such party.
SECTION 9.2. SURVIVAL OF AGREEMENT, REPRESENTATIONS AND
WARRANTIES, ETC.
All warranties, representations and covenants made by the
Borrower herein or in any certificate or other instrument delivered by it or on
its behalf in connection with this Agreement shall be considered to have been
relied upon by the Administrative Agent and the Lenders and shall survive the
making of the Loans herein contemplated and the issuance and delivery to the
Administrative Agent of the Notes regardless of any investigation made by the
Administrative Agent or the Lenders or on their behalf and shall continue in
full force and effect so long as any amount due or to become due hereunder is
outstanding and unpaid and so long as the Commitment has not been terminated.
All statements in any such certificate or other instrument shall constitute
representations and warranties by the Borrower hereunder.
SECTION 9.3. SUCCESSORS AND ASSIGNS; SYNDICATIONS; LOAN SALES;
PARTICIPATIONS.
(a) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party (provided, however, that the Borrower may not assign its
rights hereunder without the prior written consent of all the Lenders), and all
covenants, promises and agreements by, or on behalf of, the Borrower which are
contained in this Agreement shall inure to the benefit of the successors and
assigns of the Lenders.
(b) Each of the Lenders may (but only with the prior written
consent of the Administrative Agent, the Issuing Lenders and the Borrower, which
consents shall not be unreasonably withheld or delayed) assign to one or more
banks or other entities either (i) all or a portion of its interests, rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the same portion of the Loans at the time owing to
it and the Notes held by it and its
L/C Exposure) (a "Ratable Assignment") or (ii) all or a portion of its rights
and obligations under and in respect of (A) its Commitment under this Agreement
and the same portion of the Revolving Credit Loans at the time owing to it and
its L/C Exposure or (B) the Competitive Loans at the time owing to it
(including, without limitation, in the case of any such type of Loan, the same
portion of the associated Note) (a "Non-Ratable Assignment"); provided, however,
that (1) each Non-Ratable Assignment shall be of a constant, and not a varying,
percentage of all of the assigning Lender's rights and obligations in respect of
the Loans, L/C Exposure and the Commitment (if applicable) which are the subject
of such assignment, (2) each Ratable Assignment shall be of a constant, and not
a varying, percentage of the assigning Lender's rights and obligations under
this Agreement, (3) the amount of the Commitment or Competitive Loans, as the
case may be, of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Lender) shall be in a minimum principal amount of $1,000,000
unless otherwise agreed by the Borrower and the Administrative Agent and (4) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register (as defined below), an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment (if required hereunder) and a processing and recordation fee of
$3,500. Upon such execution, delivery, acceptance and recording, and from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be not earlier than five Business Days after the date of
acceptance and recording by the Administrative Agent, (x) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and (y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of the assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto).
(c) Notwithstanding the other provisions of this Section 9.3,
each Lender may at any time make a Ratable Assignment or a Non-Ratable
Assignment of its interests, rights and obligations under this Agreement to (i)
any Affiliate of such Lender or (ii) any other Lender hereunder.
(d) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, the
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in, or in connection with, this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Fundamental
Documents or any other instrument or document furnished pursuant hereto or
thereto; (ii) such Lender assignor makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Fundamental Documents; (iii) such assignee confirms that
it has received a copy of this Agreement, together with copies of the most
recent financial statements delivered pursuant to Sections 5.1(a) and 5.1(b) (or
if none of such financial statements shall have then been delivered, then copies
of the financial statements referred to in Section 3.4 hereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon the
assigning Lender, the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Fundamental Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; and
(vi) such assignee agrees that it will be bound by the provisions of this
Agreement and will perform in accordance with its terms all of the obligations
which by the terms of this Agreement are required to be performed by it as a
Lender.
(e) The Administrative Agent, on behalf of the Borrower, shall
maintain at its address at which notices are to be given to it pursuant to
Section 9.1, a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders and the
Commitments of, and principal amount of the Loans owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Administrative Agent,
the Issuing Lenders and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Fundamental Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(f) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, any Notes subject to such assignment (if
required hereunder) and the processing and recordation fee, the Administrative
Agent (subject to the right, if any, of the Borrower to require its consent
thereto) shall, if such Assignment and Acceptance has been completed and is
substantially in the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt written notice thereof to the Borrower. If a portion of the
Commitment has been assigned by an assigning Lender, then such Lender shall
deliver its Revolving Credit Note, if any, at the same time it delivers the
applicable Assignment and Acceptance to the Administrative Agent. If only
Competitive Loans have been assigned by the assigning Lender, such Lender shall
not be required to deliver its Competitive Note to the Administrative Agent,
unless such Lender no longer holds a Commitment under this Agreement, in which
event such assigning Lender shall deliver its Competitive Note, if any, at the
same time it delivers the applicable Assignment and Acceptance to the
Administrative Agent. Within five Business Days after receipt of the notice, the
Borrower, at its own expense, shall execute and deliver to the applicable
Lenders at their request, either (A) a new Revolving Credit Note to the order of
such assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and a Competitive Note to the order of such
assignee in an amount equal to the Total Commitment hereunder, and a new
Revolving Credit Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder, or (B) if Competitive Loans only have
been assigned and the assigning Lender holds a Commitment under this Agreement,
then a new Competitive Note to the order of the assignee Lender in an amount
equal to the outstanding principal amount of the Competitive Loan(s) purchased
by it pursuant to the Assignment and Acceptance, or (C) if Competitive Loans
only have been
assigned and the assigning Lender does not hold a Commitment under this
Agreement, a new Competitive Note to the order of such assignee in an amount
equal to the outstanding principal amount of the Competitive Loans(s) purchased
by it pursuant to such Assignment and Acceptance and, a new Competitive Note to
the order of the assigning Lender in an amount equal to the outstanding
principal amount of the Competitive Loans retained by it hereunder. Any new
Revolving Credit Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of the Commitments of the respective Lenders. All new
Notes shall be dated the date hereof and shall otherwise be in substantially the
forms of Exhibits A-1 and A-2 hereto, as the case may be.
(g) Each of the Lenders may without the consent of the
Borrower, the Administrative Agent or any Issuing Lender sell participations to
one or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the Loans owing to it and the Note or Notes held
by it); provided, however, that (i) any such Lender's obligations under this
Agreement shall remain unchanged, (ii) such participant shall not be granted any
voting rights under this Agreement, except with respect to matters requiring the
consent of each of the Lenders hereunder, (iii) any such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iv) the participating banks or other entities shall be entitled to
the cost protection provisions contained in Sections 2.14, 2.15 and 2.17 hereof
but a participant shall not be entitled to receive pursuant to such provisions
an amount larger than its share of the amount to which the Lender granting such
participation would have been entitled to receive, and (v) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
(h) The Lenders may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.3, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to the
Administrative Agent by or on behalf of the Borrower; provided that prior to any
such disclosure, each such assignee or participant or proposed assignee or
participant shall agree, by executing a confidentiality letter in form and
substance equivalent to the confidentiality letter executed by the Lenders in
connection with information received by such Lenders relating to this
transaction to preserve the confidentiality of any confidential information
relating to the Borrower received from such Lender.
(i) Each Lender hereby represents that it is a commercial
lender or financial institution which makes loans in the ordinary course of its
business and that it will make the Loans hereunder for its own account in the
ordinary course of such business; provided, however, that, subject to preceding
clauses (a) through (h), the disposition of the Notes or other evidence of
Indebtedness held by that Lender shall at all times be within its exclusive
control.
(j) The Borrower consents that any Lender may at any time and
from time to time pledge, or otherwise grant a security interest in, any Loan or
any Note evidencing such Loan (or any part thereof), including any such pledge
or grant to any Federal Reserve Bank, and, with respect to any Lender which is a
fund, to the fund's trustee in support of its obligations to such trustee, and
this Section shall not apply to any such pledge or grant; provided that no such
pledge or grant shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
(k) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPC"), identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower, the option to provide to
the Borrower all or any part of any Revolving Credit Loan that such Granting
Lender would otherwise be obligated to make to the Borrower pursuant to Section
2.1 or 2.6, provided that (i) nothing herein shall constitute a commitment to
make any Revolving Credit Loan by any SPC and (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such
Revolving Credit Loan or fund any other obligation required to be funded by it
hereunder, the Granting Lender shall be obligated to make such Revolving Credit
Loan or fund such obligation pursuant to the terms hereof. The making of a
Revolving Credit Loan by an SPC hereunder shall satisfy the obligation of the
Granting Lenders to make Revolving Credit Loans to the same extent, and as if,
such Loan were made by the Granting Lender. Each party hereto hereby agrees that
no SPC shall be liable for any payment under this Agreement for which a Lender
would otherwise be liable, for so long as, and to the extent, the related
Granting Lender makes such payment. In furtherance of the foregoing, each party
hereto hereby agrees 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 or any
State thereof. In addition, notwithstanding anything to the contrary contained
in this Section 9.3 any SPC may (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
Revolving Credit Loan to its Granting Lender or to any financial institutions
providing liquidity and/or credit facilities to or for the account of such SPC
to fund the Revolving Credit Loans made by SPC or to support the securities (if
any) issued by such SPC to fund such Revolving Credit Loans and (ii) disclose on
a confidential basis any non-public information relating to its Revolving Credit
Loans to any rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
SECTION 9.4. EXPENSES; DOCUMENTARY TAXES.
Whether or not the transactions hereby contemplated shall be
consummated, the Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent in connection with the syndication,
preparation, execution, delivery and administration of this Agreement, the
Notes, the making of the Loans and issuance and administration of the Letters of
Credit, including but not limited to any internally allocated audit costs, the
reasonable fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the
Administrative Agent, as
well as all reasonable out-of-pocket expenses incurred by the Lenders in
connection with any restructuring or workout of this Agreement, or the Notes or
the Letters of Credit or in connection with the enforcement or protection of the
rights of the Lenders in connection with this Agreement or the Notes or the
Letters of Credit or any other Fundamental Document, and with respect to any
action which may be instituted by any Person against any Lender or any Issuing
Lender in respect of the foregoing, or as a result of any transaction, action or
nonaction arising from the foregoing, including but not limited to the fees and
disbursements of any counsel for the Lenders or any Issuing Lender. Such
payments shall be made on the date of execution of this Agreement and thereafter
on demand. The Borrower agrees that it shall indemnify the Administrative Agent,
the Lenders and the Issuing Lenders from, and hold them harmless against, any
documentary taxes, assessments or charges made by any Governmental Authority by
reason of the execution and delivery of this Agreement or the Notes or the
issuance of any Letters of Credit or any other Fundamental Document. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement and/or the payment of the Loans and/or expiration of the Letters
of Credit.
SECTION 9.5. INDEMNITY.
Further, by the execution hereof, the Borrower agrees to
indemnify and hold harmless the Administrative Agent and the Lenders and the
Issuing Lenders and their respective directors, officers, employees and agents
(each, an "Indemnified Party") from and against any and all expenses (including
reasonable fees and disbursements of counsel), losses, claims, damages and
liabilities arising out of any claim, litigation, investigation or proceeding
(regardless of whether any such Indemnified Party is a party thereto) in any way
relating to the transactions contemplated hereby, but excluding therefrom all
expenses, losses, claims, damages, and liabilities arising out of or resulting
from the gross negligence or willful misconduct of the Indemnified Party seeking
indemnification, provided, however, that the Borrower shall not be liable for
the fees and expenses of more than one separate firm for all such Indemnified
Parties in connection with any one such action or any separate but substantially
similar or related actions in the same jurisdiction, nor shall the Borrower be
liable for any settlement of any proceeding effected without the Borrower's
written consent, and provided further, however, that this Section 9.5 shall not
be construed to expand the scope of the Borrower's reimbursement obligations
specified in Section 9.4. The obligations of the Borrower under this Section 9.5
shall survive the termination of this Agreement and/or payment of the Loans
and/or the expiration of the Letters of Credit.
SECTION 9.6. CHOICE OF LAW.
THIS AGREEMENT AND THE NOTES HAVE BEEN EXECUTED AND DELIVERED
IN THE STATE OF NEW YORK AND SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF SUCH STATE APPLICABLE TO CONTRACTS MADE AND
TO BE PERFORMED WHOLLY WITHIN SUCH STATE AND, IN THE CASE OF PROVISIONS RELATING
TO INTEREST RATES, ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
SECTION 9.7. NO WAIVER.
No failure on the part of the Administrative Agent, any Lender
or any Issuing Lender to exercise, and no delay in exercising, any right, power
or remedy hereunder or under the Notes or with regards to the Letters of Credit
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law.
SECTION 9.8. EXTENSION OF MATURITY.
Except as otherwise specifically provided in Article 1 or 8
hereof, should any payment of principal of or interest on the Notes or any other
amount due hereunder become due and payable on a day other than a Business Day,
the maturity thereof shall be extended to the next succeeding Business Day and,
in the case of principal, interest shall be payable thereon at the rate herein
specified during such extension.
SECTION 9.9. AMENDMENTS, ETC.
No modification, amendment or waiver of any provision of this
Agreement, and no consent to any departure by the Borrower herefrom or
therefrom, shall in any event be effective unless the same shall be in writing
and signed or consented to in writing by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given; provided, however, that no such modification or
amendment shall without the written consent of each Lender affected thereby (x)
increase or extend the expiration date of the Commitment of a Lender or postpone
or waive any scheduled reduction in the Commitments, or (y) alter the stated
maturity or principal amount of any installment of any Loan (or any
reimbursement obligation with respect to a Letter of Credit) or decrease the
rate of interest payable thereon or extend the scheduled date of any payment
thereof, or the rate at which the Facility Fees, Utilization Fees or letter of
credit fees accrue or (z) waive a default under Section 7(b) hereof with respect
to a scheduled principal installment of any Loan; and provided, further that no
such modification or amendment shall without the written consent of all of the
Lenders (i) amend or modify any provision of this Agreement which provides for
the unanimous consent or approval of the Lenders, or (ii) amend this Section 9.9
or the definition of Required Lenders; and provided, further that no such
modification or amendment shall decrease the Commitment of any Lender without
the written consent of such Lender. No such amendment or modification may
adversely affect the rights and obligations of the Administrative Agent or any
Issuing Lender hereunder without its prior written consent. No notice to or
demand on the Borrower shall entitle the Borrower to any other or further notice
or demand in the same, similar or other circumstances. Each holder of a Note
shall be bound by any amendment, modification, waiver or consent authorized as
provided herein, whether or not a Note shall have been marked to indicate such
amendment, modification, waiver or consent and any consent by any holder of a
Note shall bind any Person subsequently acquiring a Note, whether or not a Note
is so marked.
SECTION 9.10. SEVERABILITY.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 9.11. SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
(a) THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK
COUNTY AND TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER
PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF BROUGHT BY THE ADMINISTRATIVE AGENT, A LENDER OR AN ISSUING LENDER. THE
BORROWER TO THE EXTENT PERMITTED BY APPLICABLE LAW (A) HEREBY WAIVES, AND AGREES
NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH COURTS, ANY CLAIM THAT IT IS NOT SUBJECT
PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS PROPERTY IS
EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT, AND (B) HEREBY WAIVES THE RIGHT
TO ASSERT IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY OFFSETS OR COUNTERCLAIMS
EXCEPT COUNTERCLAIMS THAT ARE COMPULSORY OR OTHERWISE ARISE FROM THE SAME
SUBJECT MATTER. THE BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS BY MAIL AT
ITS ADDRESS TO WHICH NOTICES ARE TO BE GIVEN PURSUANT TO SECTION 9.1 HEREOF. THE
BORROWER AGREES THAT ITS SUBMISSION TO JURISDICTION AND CONSENT TO SERVICE OF
PROCESS BY MAIL IS MADE FOR THE EXPRESS BENEFIT OF THE ADMINISTRATIVE AGENT, THE
LENDERS AND EACH ISSUING LENDER. FINAL JUDGMENT AGAINST THE BORROWER IN ANY SUCH
ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER
JURISDICTION (A) BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, A CERTIFIED OR
TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND THE AMOUNT OF
INDEBTEDNESS OR LIABILITY OF THE SUBMITTING PARTY THEREIN DESCRIBED OR (B) IN
ANY OTHER MANNER PROVIDED BY, OR PURSUANT TO, THE LAWS OF SUCH OTHER
JURISDICTION, PROVIDED, HOWEVER, THAT THE ADMINISTRATIVE AGENT, A LENDER OR AN
ISSUING LENDER MAY AT IS OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL
PROCEEDINGS AGAINST THE BORROWER OR ANY OF ITS ASSETS IN ANY ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ OR OF ANY COUNTRY OR PLACE WHERE THE BORROWER OR SUCH
ASSETS MAY BE FOUND.
(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES, AND COVENANTS THAT IT WILL
NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT
OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH PARTY HERETO
ACKNOWLEDGES THAT IT HAS BEEN INFORMED THAT THE PROVISIONS OF THIS SECTION
9.11(b) CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH THE OTHER PARTIES HAVE
RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. THE PARTIES
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 9.11(b) WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF SUCH OTHER PARTY TO THE WAIVER
OF ITS RIGHTS TO TRIAL BY JURY.
SECTION 9.12. HEADINGS.
Section headings used herein are for convenience only and are
not to affect the construction of or be taken into consideration in interpreting
this Agreement.
SECTION 9.13. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, but all of which taken together
shall constitute one and the same instrument.
SECTION 9.14. ENTIRE AGREEMENT.
This Agreement represents the entire agreement of the parties
with regard to the subject matter hereof and the terms of any letters and other
documentation entered into among the Borrower, the Administrative Agent or any
Lender (other than the provisions of the letter agreement dated August 20, 2001,
among the Borrower, Chase and ▇.▇. ▇▇▇▇▇▇ Securities Inc., relating to fees and
expenses and syndication issues) prior to the execution of this Agreement which
relate to Loans to be made or the Letters of Credit to be issued hereunder shall
be replaced by the terms of this Agreement.
SECTION 9.15. CONFIDENTIALITY.
Each of the Administrative Agent and the Lenders agrees to
keep confidential all non-public information provided to it by the Borrower and
its Subsidiaries pursuant to this Agreement that is designated by the Borrower
as confidential; PROVIDED that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any affiliate of any Lender, (b) to
any participant or assignee (each, a "TRANSFEREE") of such Lender or prospective
Transferee which agrees to comply with the provisions of this Section, (c) to
any of its employees, directors, agents, attorneys, accountants and other
professional advisors, (d) upon the request or demand of any governmental or
regulatory authority having jurisdiction over it, (e) in response to any order
of any court or other governmental authority or as may otherwise be required
pursuant to any requirement of
Law, (f) if requested or required to do so in connection with any litigation or
similar proceeding, (g) which has been publicly disclosed other than in breach
of this Section 9.15, (h) to the National Association of Insurance Commissioners
or any similar organization or any nationally recognized rating agency that
requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender or (i) in connection
with the exercise of any remedy hereunder or under any other Fundamental
Document.
SECTION 9.16. DELIVERY OF ADDENDA.
Each initial Lender shall become a party to this Agreement by
delivering to the Administrative Agent an Addendum duly executed by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and the year first above written.
CENDANT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK, as
Administrative Agent and Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A., as Syndication Agent
and Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA, as
Co-Documentation Agent and as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
CREDIT LYONNAIS NEW YORK BRANCH, as
Co-Documentation Agent and as Lender
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President